Bombay High Court
Anand Vithoba Lohkare And Others vs State Of Maharashtra on 9 February, 1999
Equivalent citations: 2000(5)BOMCR288, 2000BOMCR(CRI)~, 1999CRILJ2857, 1999(2)MHLJ435
Author: D.D. Sinha
Bench: D.D. Sinha
ORDER D.D. Sinha, J.
1. Heard Shri A.K. Choube, the learned Counsel for the applicants and Shri V.M. Deshpande, the learned A.P.P. for the non-applicant.
2. This criminal revision application is directed against the order dated 14-7-1995 passed by the Judicial Magistrate, First Class, Rajura in Criminal Summary Case No. 1500/95 whereby the applicants came to be convicted on admission of the guilt for the offence punishable under sections 4 and 5 of the Bombay Gambling Act and were sentenced to suffer simple imprisonment for a period of 30 days and to pay a fine of Rs. 200/- in default to suffer simple imprisonment for additional 30 days. Being aggrieved by the same, the applicants preferred Criminal Appeal No. 54/95 and the Sessions Judge, Chandrapur vide judgment and order dated 19-1-1996 dismissed the said appeal and hence the present revision application.
3. The applicants 1 to 4 at the relevant time were caught red handed by the Police while they were engaged in gambling in a room of Parag Lodge at Ballarshah on 7-12-1995 at about 11.30 p.m. An amount of Rs. 1,690/- and the card were seized from the applicants. The Police filed the charge sheet against the applicants for the offence under sections 4 and 5 of the Bombay Prevention of Gambling Act. The particulars of the offence were explained to the accused. All of them pleaded guilty and prayed for leniency on the ground that it was their first offence. In view of this plea, the Judicial Magistrate, First Class convicted all the accused persons for the above referred offence punishable under sections 4 and 5 of the Bombay Prevention of Gambling Act.
4. Shri Choube, the learned Counsel for the applicants contended that the trial Court has not taken into consideration the requirements of section 251 of the Code of Criminal Procedure. It is submitted that the trial Court did not explain the particulars of the offence to the applicants properly and in the language understood by the applicants. It is further contended that the particulars of the offence jointly explained to all the applicants and the plea of guilt is also jointly recorded by the trial Court. The learned Counsel further submitted that the pursis filed by the applicants would demonstrate that the applicants did not understand the particulars of the offence and, therefore, in the said pursis the applicants have admitted to have committed the offence under section 12 of the Bombay Prevention of Gambling Act which in fact is neither the charge against the accused nor the allegations in respect of the same. It is, therefore, contended that the trial Court without following due procedure contemplated in law mechanically recorded the plea of guilt on behalf of the applicants and further proceeded to pass impugned order of conviction.
5. The learned Counsel for the applicants in order to substantiate the contentions raised by him, placed reliance on the judgment Chhotu Bhagirath v. The State of Gujarat, reported in 1972 Cri.L.J. 548 of Gujarat High Court and the judgment of Madras High Court S. Chinnaswamy v. The State, reported in 1973 Cri.L.J. 358.
6. Shri Deshpande, the learned A.P.P for the State supporting the impugned order passed by the Court below contended that there is no legal lacuna in the order passed by the trial Court. The particulars of the offence were explained to the applicants and they have also understood the same. The learned A.P.P contended that the trial Court after taking into consideration all these aspects convicted the applicants on the admission of guilt of the offence. The learned A.P.P., therefore, submitted that the impugned orders are just and proper.
7. I have considered the argument advanced by the respective Counsel for the parties and perused the judgments and orders passed by the courts below. It is no doubt true that the applicants have appeared to have admitted the guilt for the commission of the offence charged. However, it is not specifically mentioned in the impugned order passed by the learned Judicial Magistrate, First Class that the particulars of the offences were explained to each one of the applicants individually and each one of them individually understood the same and their plea of guilt also is not recorded individually in a manner provided in law. The lower Appellate Court has also not taken into consideration these mandatory requirements required to be followed by the Judicial Magistrate, First Class while awarding conviction on the plea of guilt. The particulars of the offence explained to the applicants have not been understood by the applicants correctly which could be seen from the pursis filed by them in the Court. Perusal of the pursis would show that the applicants have pleaded guilty for the offence under section 12 of the Gambling Act which clearly demonstrate that the particulars in respect of the offence has not been properly explained to the applicants and same has also not been property understood by the applicants.
8. In a case of S. Chinnaswamy v. State (cited supra) the Madras High Court has held;
"The learned Magistrate ought to have all substance of the accusation read out to the accused and made the accused understood and implications of his pleading guilty. I do not find the substance of the accusation to have been properly explained to the accused and the plea of the accused also is not properly recorded. The entire proceedings against the accused have been marred by the haphazard and perfunctory recording."
9. In a case of Chhotu Bhagirath (cited supra) the Gujarat High Court has held:
"If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as early as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly," This section provides that if the accused admits that he has committed the offence his said admission should be recorded by the Magistrate as nearly as possible in the exact words used by him. If the Magistrate fails in doing so, then obviously he does not provide any record to the appellate or the revising authority to know in what actual words the accused had pleaded guilty and also to judge whether the said words really amounted to a plea of guilty or not. The reason behind the rule requiring the Magistrate to record the plea of the accused as nearly as possible in his own words, is that the appellate or the revising authority can come to its own conclusion as to whether the plea of the accused really amounted to a plea of guilty. The procedure contemplated by section 243 is very important and substantial because a plea of guilty raised by an accused would debar him from preferring an appeal against his conviction. Under these circumstances, it would not be open to any Court to disregard the specific provisions contained in section 243 of the Criminal Procedure Code and non-compliance of this provision would therefore, not be controlled by the provisions contemplated by section 537 of the Criminal Procedure Code."
10. In the instant case, the Magistrate has obtained merely signatures of the applicants. As per the provisions of section 252 what is required is the separate recording of plea of the each of the accused persons. This is obviously not done by the Magistrate in the instant case. The learned Magistrate has merely made a note, that called applicants, pleaded guilty and convicted the same which in my opinion is inconsistent with the procedure contemplated and required to be followed by the Magistrate in view of the provisions of section 252 of the Code of Criminal Procedure. In that view of the matter, both the impugned orders, in my opinion, are not just and proper and the same are devoid of substance and unsustainable in law. Hence, the impugned order dated 14-7-1995 passed by the Judicial Magistrate, First Class, Rajura in Summary Case No. 1500/95 as well as the order dated 19-1-1996 passed by the Sessions Judge, Chandrapur in Criminal Appeal No. 54/95 is hereby quashed and set aside. The matter is remanded back to the Judicial Magistrate, First Class, Rajura who is directed to proceed from the stage of charge; by explaining the particulars thereof to the accused.
11. In the result, the Criminal Revision is allowed in the aforesaid terms.
12. Criminal revision allowed.