Delhi District Court
State Of Gnct Of Delhi vs Harpal Singh on 31 July, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 39/12
State of GNCT of Delhi
Through Public Prosecutor,
DOP, Tis Hazari Court, Delhi ..... Appellant
versus
Harpal Singh
S/o Sh. Manmohan Singh
R/o WZ-24, Shiv Nagar,
Street No. 2, Tilak Nagar,
Delhi ..... Respondent
Date of institution of the appeal : 05.02.2011
Date of reserving judgment/order : 16.07.2012
Date of judgment / order : 31.07.2012
JUDGMENT :
1 This is an appeal u/s 377 (1) (a) of Code of Criminal Procedure (hereinafter referred to as "Cr.PC") filed by the appellant against the impugned conviction and sentence dated 06.08.2010 vide which the respondent had been convicted and sentenced for the offence punishable u/s 63/68A of the Copyright Act.
2 The facts in brief are that a charge-sheet against the respondent was filed u/s 63/65/68A of Copyright Act and the charges u/s 63/68A of the Copyright Act for violation of Section 52A of the Copyright Act were framed against the CA No.39/12 Page No. 1 of 9 -2- accused vide order dated 27.03.2006, to which he pleaded not guilty and claimed trial. Subsequently, the matter was adjourned on various dates for recording of prosecution witnesses, but no prosecution witness could be examined. On 05.08.2010, an application was moved by the accused for pleading guilty and the plea of guilt of the respondent was recorded by the Ld. MM after explaining to him that he was not bound to make any statement or confession and after satisfying that the said plea of guilt had been made voluntarily. On his plea of guilt, the accused was convicted for offences u/s 63/68A of the Copyright Act and was sentenced to pay a fine of Rs.5,000/-, in default simple imprisonment for 30 days. 3 Aggrieved by the said order, the present appeal has been preferred by the State.
4 It is argued on behalf of the State that the Copyright Act is a special law enacted to provide protection to the works and to encourage future growth and development of literary work and thus stringent punishment has been provided against those, who intentionally and deliberately infringe the Copyright of others. The accused /respondent himself had moved an application for pleading guilty on 29.06.2010 i.e. before the next date of hearing and it is evident that his plea of guilt was voluntary. The plea of guilt being voluntary was validly made a basis for conviction by the Ld. MM. However, he ignored the penal provisions of the copyright Act, which provided for minimum sentence and fine u/s 63/68A of the Copyright Act. Ld. MM was, therefore, not justified in letting off CA No.39/12 Page No. 2 of 9 -3- the accused with a light sentence of fine of Rs.5,000/- when in fact u/s 63 of the Act minimum fine of Rs.50,000/- is prescribed besides the imprisonment. It is, therefore, submitted that the impugned sentence is liable to be enhanced. It is also submitted that there was a delay of 91 days in filing of the appeal on account of seeking the permission from the Government of NCT of Delhi for preferring the present appeal. It is, therefore, submitted that the delay in filing the present appeal may be condoned.
5 Ld. counsel on behalf of the respondent has argued that there is a delay of 91 days in filing of present appeal, for which no cogent explanation has been tendered and the appeal is liable to be dismissed on the ground of limitation itself. On merits, it is denied on behalf of the respondent that the impugned conviction dated 06.08.2010 and consequent sentence is bad in law and illegal as the punishment provided was less than the minimum prescribed under the Copyright Act. Section 386 (B) of the Cr.PC clearly provides that the appellate Court has no jurisdiction to set aside the sentence and to remand the case for reconsideration of the matter on the point of sentence, but has to necessarily set aside the judgment itself for retrial. For this, the ld. counsel has placed reliance upon the following judgments :
i "P. Mazher v. State of AP, 2004 [1] JCC [NI] 34 AP"
ii "Ashok Kumar v. State, 1990 (1) RCR 165 (Delhi)"
6 It is further argued on behalf of the respondent that once the plea of not guilty had been recorded, the Court CA No.39/12 Page No. 3 of 9 -4- had no jurisdiction or power, to record the plea of guilt during the trial. The procedure adopted by the Ld. MM in subsequently recording the plea of guilt of the accused was against the provisions of Cr.PC and the conviction based on such plea of guilt was not according to law. For this proposition of law, the ld. counsel has relied upon "State of Punjab v. Satpal & Ors., 2006 (3) RCR (Criminal) Punjab & Haryana High Court (DB)".
7 It is further submitted that it is a normal practice that the trial Courts are insisting for moving an application for plea bargaining / plead guilty on the assurance to let off the accused lightly by paying the fine only. In the present case as well the accused had been under the impression that he was moving the application for plea bargaining when he moved his application for plea guilty and the Ld. MM as well assuming it to be a case of plea bargaining had let off the accused by imposing a fine of Rs.5,000/-. It is submitted that the plea of guilt entered into by the accused was under the mistaken impression of being let off lightly as is being done regularly by the Courts when the accused enters into plea bargain. To support his assertions, the Ld. counsel has placed on record the copies of the orders of various MMs, who under the scheme of plea bargain have been letting off the accused persons under the similar provisions of Copyright Act by simplicitor imposition of nominal fine.
8 Ld. counsel for respondent has, thus, argued that the plea of guilt of the accused was not voluntary and, thus, CA No.39/12 Page No. 4 of 9 -5- the conviction itself is liable to be set aside and the matter be remanded back for retrial.
9 I have heard the arguments, perused the record and also the written arguments submitted on behalf of the respondent. My observations are as under :
10 As the outset the objection had been taken that the present appeal is barred by limitation. However, the State has sufficiently explained that since the permission has to be obtained from the NCT of Delhi for filing of the appeal, the time was taken in the administrative procedures. Considering the explanation tendered, the delay in filing the appeal is condoned.
11 The present appeal raises many questions of legal interest. The first question which crops up for consideration is whether the plea of guilt can be recorded once the accused has already pleaded not guilty at the stage of framing of charge. The Division Bench of Punjab and Haryana high Court in the case of "Satpal & Ors. (supra)" had observed that once the accused had pleaded not guilty to the charge and the matter was listed for recording of prosecution evidence, then subsequently at the stage of prosecution evidence, the plea of the accused of admitting his guilt could not have been recorded. The stage of pleading guilty having been passed, the Court had no choice but to record the prosecution evidence and then examine the accused. The Court without recording the statements of the prosecution witnesses and thereafter the statement of the accused u/s 313 CA No.39/12 Page No. 5 of 9 -6- Cr.PC could not have accepted the plea of guilt of the accused and convict him for the offence u/s 304 Part II IPC. 12 The Kerala High court has, however, taken the opposite view in the case of "Santhosh v. State of Kerala, 2003 (3) RCR (Criminal) 133", wherein the accused had pleaded not guilty to the charge but had subsequently moved an application for admitting his guilt. The Kerala High Court observed that undoubtedly there is no provision under the Code enabling the Court to permit an accused to withdraw his claim to be tried and to convict him on his plea of guilt subsequently. But there is also no such prohibition in the Code to record the plea of guilt in the course of trial and convict the accused on his subsequent admission of plea of guilt. The object of trial is to investigate the offence and to find out the truth. When the plea of guilt is admitted by the accused and the admission is found to be voluntary, there is no reason why the Court should not allow him to withdraw his claim to be tried and to plead guilty. The Patna High Court in the case of "Shyama Charan Bharthuar & Ors. v. Emperor, AIR 1934 Patna 330", had also taken a similar view.
13 In "Ram Krishun v. State of U.P., 1996 Crl.L.J 440", the Allahabad High Court was confronted with a similar question of the accused pleading guilty after the framing of charge, at the stage of recording of prosecution evidence. It was observed that the plea of guilt of an accused is a voluntary act and it does not partake the character of confession. The judge's task is to find out the truth involved in the case before CA No.39/12 Page No. 6 of 9 -7- him and if at any stage the Judge is satisfied about the plea of guilt of the accused to be voluntary and without coercion, there is nothing in the Code to prevent such a plea from being recorded and thereafter to record the conviction on its basis. It was observed that the necessity of evidence would arise only if and when the charge is not accepted. There is no reason to restrict the applicability of Section 229 Cr.PC to a particular date or occasion but the purport of Section is obvious that plea of guilt can be advanced by an accused at any stage of trial after framing of charge.
14 In the light of the case laws discussed above, it can be safely concluded that there is nothing in the Code prohibiting the MM from accepting the plea of guilt of the accused at any stage after the framing of charge. The Ld. MM was, therefore, well within the parameters of law to consider the application of the accused for pleading guilty. 15 The second question, however, that poses itself is whether the plea of guilt was valid and voluntary to be made basis of conviction and whether the statement recorded could be taken as a sufficient admission of guilt by the respondent. 16 The statement of the accused admitting his guilt was recorded on 05.08.2010, which is as under :
"05.08.2010 Statement of accused Harpal Singh s/o late Sh. M. S. Bindra, R/o WZ-203, Gali No. 12, Shiv Nagar, New Delhi.
On S.A. I plead guilty voluntarily, without any pressure, threat or coercion, I admit that on CA No.39/12 Page No. 7 of 9 -8- 16.10.2002 at about 07.30 p.m. at Shop No. 3-4, Kali Bari Marg near Gole Dakkhana, New Delhi, I was found in possession of infringed VCD's and DVD's (detailed in Seizure memo Mark A-1), T.V. Set and Modulator etc. (detailed in Seizure memo Mark A-1). Now, I am not in the same business a lenient view be taken against me."
17 The first thing which emerges is that the accused has simply admitted being in possession of infringed VCDs, DVDs, TV Set and Modulator etc. Can it be said that simplicitor possession of infringed items per se is an offence under the various provisions of the Copyright Act. The answer is obviously No. The accused had not admitted the ingredients necessary to constitute the various offence punishable u/s 63 and 68A of the Copyright Act.
18 Furthermore, the other question which comes up for consideration is whether the said plea was voluntary or was under the impression of the letting off on a lenient sentence. The Supreme Court of India in the case of "K.A. Sheikh v. State of Gujarat, 1980 (3) SCC 120" had depreciated the practice of letting off an accused lightly if he enters into a plea of guilt. It was observed that it was contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess a plea of guilt on an allurement being held out to him that if he enters the plea of guilt he would be let off lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of Article 21 of the Constitution, which guarantees a fair procedure. It was further CA No.39/12 Page No. 8 of 9 -9- observed that not only would such practice subvert the process of law, but would also encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. It was, thus, concluded that such plea of guilt entered under the impression of being let off lightly cannot be sustained and the matter has to be remanded back to be proceeded from the stage of framing of charge. 19 In the present case as well, from the nature of sentence imposed, which is much below the prescribed minimum u/s 63 and 68A of the Copyright Act, it is evident that the plea of guilt was not voluntary but was under the allurement of being let off on a lighter sentence. Such plea of guilt not being voluntary, could not have been a basis of conviction.
20 The impugned conviction and sentence is, therefore, set aside and the matter is remanded back to the Trial Court to be decided in accordance with the provisions of the Cr.PC.
21 Parties to appear before the Ld. Trial Court on 08.08.2012.
22 Trial Court Record be sent back along with the copy of this order.
23 Appeal file be consigned to the Record Room. Announced in the open Court on 31st Day of July,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No.39/12 Page No. 9 of 9