Gauhati High Court
Crl.Pet./237/2022 on 30 November, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
GAHC010054222022
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
Criminal Petition No.237/2022
Nilima Bose,
Mother of Shri Amit Bose, aged about 50 years,
Resident of Radali Path,
Police Station Dispur, Guwahati,
Kamrup (Metro), Assam.
Petitioner
-VERSUS-
1. The State of Assam,
Represented by the Public Prosecutor, Assam.
2. Deputy Commissioner, Karimganj, Assam.
3. Superintendent of Police (Border), Karimganj.
4. Superintendent, Central Jail, Silchar.
5. Raju Ranjan Dey,
Karimganj Police Station, Karimganj.
Respondents.
Advocates for the Petitioner : Ms. Pooja Agarwal, Adv.
Ms. K Yadav, Adv.
Mr. B. J. Das, Adv.
Advocates for the respondents: Ms. S. Jahan, Addl. P.P., Assam.
Crl.Pet. No.237/2022 Page 1 of 55 BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR Date of Hearing : 06.05.2022, 02.06.2022, 21.06.2022, 27.06.2022 and 28.06.2022 Date of Judgment : 30.11.2022 JUDGMENT AND ORDER (CAV) [N. Kotiswar Singh, J.] Heard Ms. Pooja Agarwal, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.
2. This Criminal Petition No.237/2022 has been filed by invoking Section 482 read with Section 401 of the Code of Criminal Procedure in challenging the order dated 21.01.2016 passed by the Court of Judicial Magistrate, First Class(II), Karimganj in G.R. Case No.39/2016 convicting the son of the petitioner under Section 14 of the Foreigners Act, 1946.
3. Before we refer to the background facts of the case, we are reproducing the impugned order as, in our opinion, it will put the matter in better perspective. The order of conviction dated Crl.Pet. No.237/2022 Page 2 of 55 21.01.2016 passed by the Judicial Magistrate First Class(II), Karimganj reads as follows:
"The U.T.P. Amit Bose is produced from jail custody. Perused the C/R and Heard both sides on the point of charge.
Considering the materials on record, Charge under Section 14 of Foreigners Act, 1946, is framed against the accused Amit Bose and the content of the same is read over and explained to the accused, to which he pleaded guilty. In support, he filed a petition vide no.522 through the Ld. LAC Smti. M.A. Choudhury stating that he pleads guilty and in future he would not do such offence again.
Perused the C/R and also heard the Ld. Counsel Smti. Choudhury on behalf of the accused.
The offence is under Sec.14 of Foreigners Act, 1946. Considering the nature of offence, his plea of guilt is recorded in separate sheet in Bengali Language, interpreted to him, which is tagged with C/R and on being satisfied that the plea of guilt is made voluntarily, the same is accepted and he is convicted under the above section of offence.
Heard the convict Amit Bose. He states that he is very poor and to maintain his family at Bangladesh, he crossed the boundary, as there is no working opportunity at his place.
The accused has crossed the international boundary and reached to India without any lawful authority. Considering the nature of offence, I am of the opinion that the accused should not get the benefit of Probation of Offenders Act.
Considering all aspect of the case vis-à-vis the plea of convict, I am of considered opinion that he deserves sentence of Crl.Pet. No.237/2022 Page 3 of 55 Rigorous Imprisonment for 1 (one) years for offence under Section 14 of Foreigners Act, 1946. He is sentenced accordingly.
Issue Jail Warrant.
The period of detention during investigation and trial shal be set off against the term of said quantum of sentence.
The Jail Superintendent is directed to do the needful as per direction herein above.
Send copies of the order to the Deputy Commissioner, Karimganj and Superintendent of Police, Karimganj, to do the needful with the convict after completion of the period of punishment.
Case stands disposed of."
4. The original records of the trial have been requisitioned by us. As per the original records, it appears that the petitioner's son namely, Amit Bose was apprehended on 05.01.2016 after he was found loitering in AOC point area of Karimganj Town in a suspicious manner by the Police Patrolling party at around 5 P.M. The FIR which was lodged in connection with the apprehension of the petitioner's son mentions that he identified himself to be one Amit Bose, son of Sri Arabinda Bose, Village: Andar Manik, P.O.- Rongunihat, P.S.-Raojan, District: Chattagram (Bangladesh) and he crossed the international border of Bangladesh illegally and entered West Bengal about a month back in search of a job in India and from West Bengal, he reached Karimganj via Guwahati and then came to Lumding by train. Accordingly, on the basis of the said FIR, Crl.Pet. No.237/2022 Page 4 of 55 Section 14 of the Foreigners Act read with Section 6 of the Passport (Entry into India) Rule, 1950 was invoked against the petitioner's son. He was produced before the Judicial Magistrate, First Class(II), Karimganj who remanded him to the 15 days judicial custody which expired on 20.01.2016. On 20.01.2016 he was duly presented before the Judicial Magistrate, First Class(II), Karimganj and on the next day on 21.01.2016 he was convicted on his taking the plea of guilty.
5. From the original records, it appears that one Legal Aid Counsel, Smti. M.A. Choudhury was appointed by the Magistrate on 06.01.2016. However, when the petitioner's son was produced before the Magistrate on 20.01.2016, the Legal Aid Counsel did not appear for the accused. In other words, the petitioner's son remained unrepresented by the counsel on 20.01.2016. The petitioner's son was directed to be produced on 21.01.2016 after his judicial custody for 15 days expired on 20.01.2016.
6. From the perusal of the records it can be observed that though the prosecution submitted the charge-sheet to the Magistrate on 18.01.2016, a copy of the said charge-sheet was furnished to the accused on 20.01.2016 when he was produced before the Magistrate, on which date the Legal Aid Counsel did not Crl.Pet. No.237/2022 Page 5 of 55 appear. Further, there is nothing on record as to whether the legal aid counsel interacted with the petitioner's son when he was in judicial custody. For better appreciation, the order passed by the learned Magistrate on 20.01.2016 reads as follows:
"The C/R is received on transfer for disposal.
Perused the charge sheets as well as other documents available on record.
Considering all, congnizance is taken u/sec 14 of the Foreigners Act against accused Amit Bose.
The accused/U.T.P. is produced before Court as his production was previously fixed.
Perusal of C/R reveals that Ld. L.A.C. Smti. M. Choudhury was appointed for the accused/U.T.P. Ld. L.A.C. has not made appearance for the accused. The relevant copies are supplied to the accused.
The accused is remanded back to judicial custody till tomorrow.
Fixing 21.1.16 for C.C."
7. As mentioned above, the Magistrate fixed the matter for further proceeding and charge consideration on the next date i.e. on 21.01.2016. On that day, when he was produced before the Judicial Magistrate, the Legal Aid Counsel submitted an application on behalf of the accused stating that he had entered India by mistake from Bangladesh and that he had been in custody for a long period and his family members have been going through a distressful period because of his absence from his home and for that Crl.Pet. No.237/2022 Page 6 of 55 reason he wanted to plead guilty so as to get relief from the legal proceeding. For better appreciation, the aforesaid application filed in Bengali language by the petitioner's son on 21.01.2016 is reproduced herein below:
" এই ,
ই
ই ছি
ই এই
ই
এ
এই ই "
The English translation reads as follows:
"The submission is that,
I am the defendant in the above trial. I had mistakenly entered India from Bangladesh. I have been in jail for a long time. My family members have spent their days in distress in my absence. So I want to plead guilty in this case.
Therefore, I pray that the Court may order to release me from this case on my plea of guilty."
8. In the impugned order dated 21.01.2016, the Magistrate recorded the statement of the accused who stated before the Magistrate that he is very poor and to maintain his family in Crl.Pet. No.237/2022 Page 7 of 55 Bangladesh, he had crossed the boundary as there is no work opportunity in Bangladesh. In order to appreciate the said plea of the petitioner's son admitting his guilt recorded by the Magistrate which is part of the record, the same is reproduced herein below:
" -
- - - ,
এই কছরবনা।
আছি
এই এ
পাছরয়াছি
"
The English translation reads as follows:
"I, Amit Bose, age 20 years, Father-Arabinda Bose, Address:
Village: Andarmoni, Police Station- Raujan, District- Chittogram. I plead guilty in my trial. I will not make such mistakes again in future.
I have my old father, mother and sister in my house. I am poor, came to this country in search of work. Now I understood my mistake.
Forgive me."
9. Though the petitioner's son was convicted by the order dated 21.01.2016 on the basis of plea of guilt, it appears that he had already been in the judicial custody for more than 6 (six) years. As Crl.Pet. No.237/2022 Page 8 of 55 per the order of conviction he had undergone the sentence of one year of rigorous imprisonment inflicted upon him under Section 14 of the Foreigner Act, 1946. However, he had remained in detention for more than 6 (six) years.
10. The learned counsel for the petitioner submits that the mother of the aforesaid Amit Bose came to know about the conviction of her son sometime in the year 2017 and that her son was lodged in the Central Jail, Silchar. She then visited the jail and enquired the reason behind her son's detention, whereupon, she was informed that her son had been convicted under Section 14 of the Foreigners Act.
11. It has been further submitted that as the petitioner belongs to a weaker section of the society and could not afford to engage a private legal counsel, she submitted an application before the Assam State Legal Service Authority, which was duly forwarded to the Secretary, District Legal Service Authority, Cachar & Karimganj vide letter dated 25.04.2017.
12. It has also been stated that pursuant to the said application submitted by the petitioner, one Dulu Ranjan Das, Advocate was appointed to assist the petitioner for doing the needful. The said learned counsel after perusing the records and hearing the petitioner submitted a detail report to the Chairperson of the District Crl.Pet. No.237/2022 Page 9 of 55 Legal Service Authority, Karimganj, wherein it was mentioned that as the period of conviction of the petitioner son was already over, he may be deported to Bangladesh at any time and it was advised that necessary steps be taken at the earliest so that the petitioner's son may not be deported to Bangladesh.
13. Unfortunately, in spite of such a letter being written, no action was taken, which left the petitioner totally helpless. However, she visited a number of times in Silchar Jail to see her son but did not know how to proceed with the matter in absence of any action taken by the Legal Service Authority as mentioned above.
14. Thereafter, the petitioner lodged a complaint on 20.09.2021 before the Assam Human Rights Commission which was forwarded by the Commission to the Superintendent of Central Jail, Silchar. Thereupon, a report was submitted to Assam Human Rights Commission to the effect that the petitioner's son had been kept in Central Jail after serving his sentence pending his deportation and the matter did not proceed further. Fortunately, no deportation has taken place so far. In the meantime, as the petitioner was introduced to certain lawyers, who were willing to appear on her behalf pro bono, the present petition has filed seeking appropriate relief including for quashing of the aforesaid conviction order dated Crl.Pet. No.237/2022 Page 10 of 55 21.01.2016, which according to the petitioner, was passed by not following the due process.
15. It has been submitted that the problem of the petitioner's son being wrongly convicted has been compounded by the fact that a stigma has been attached to her son as a foreigner who had entered India from Bangladesh though he is an Indian. It has been submitted that even if challenging the said conviction order may appear to be futile now as he has already served out the sentence, yet, her son would be deemed to be a foreigner and he would be divested of the valuable right of being an Indian citizen. Accordingly, the present petition has been preferred to clear the cloud about the citizenship of her son.
16. The learned counsel for the petitioner has raised various grounds to challenge the said conviction order.
17. Learned counsel for the petitioner submits that the conviction of the petitioner's son by the impugned order dated 21.01.2016 is not in accordance with law as the plea of guilty was improperly obtained and there are sufficient materials on record to show that the petitioner's son was indeed born in this country and a citizen of this Country.
Crl.Pet. No.237/2022 Page 11 of 55
18. Coming to the main issue as to whether the said conviction was valid or not, the learned counsel for the petitioner submits that the learned Magistrate ought to have taken proper precautions before the said plea of guilty was entertained and acted upon. It has been submitted that the petitioner's son is suffering from Schizophrenia, in support of which the petitioner has annexed a number of medical documents in this petition, because of which he had left his house in Guwahati without informing his parents and somehow he landed in Silchar and in absence of any proper documentation, and due to suspicion, he was picked up by the police and dubbed a foreigner. According to the learned counsel for the petitioner, the petitioner's son was not in a position to inform the authorities about his correct identity and his family backgrounds as he was mentally not stable. Taking advantage of his inability to identify himself properly, the police had made the aforesaid charge against him.
19. It has also been submitted that the so-called confessional statement of guilt made by the petitioner's son would indicate that it is not consistent, for the reason that in the application filed before the Judicial Magistrate while he had stated that he had been in custody for a long period of time and since his parents were going Crl.Pet. No.237/2022 Page 12 of 55 through difficult times and because of his long absence from home, he did not want to contest the case. On the other hand, on the same day, he pleaded before the Magistrate, by making a different story that he had come to this Country for earning a better livelihood and left his country, Bangladesh.
20. Learned counsel for the petitioner submits that a close scrutiny of the so-called confessional statement will indicate that his confession perhaps does not appear to be natural. It has been submitted that in his statement he admitted to his guilt and also undertook that he will not make any such mistake in future.
According to the learned counsel, though he appeared to be pleading guilty, the language used in his application submitted before the Court and the statement made before the Court do not appear to be consistent.
21. Learned counsel also submits that from the records it appears that petitioner's son did not get proper legal assistance from the Legal Aid Counsel who remained absent on the previous date on 20.01.2016 when he was furnished with a copy of the charge-sheet. Thus, without effective consultation, legal advice and guidance from his lawyer, it is doubtful whether the petitioner's son had made the so-called confessional statement voluntarily and after having fully Crl.Pet. No.237/2022 Page 13 of 55 understood the implications of such plea of guilt. It has been submitted that the circumstances in which the said plea of guilt was recorded by the Magistrate do not inspire confidence that he did so voluntarily and he did so after having fully understood the implication of making such confessional statement before the Magistrate.
22. Learned counsel for the petitioner submits that it can be inferred from the documents which have been annexed to this petition that he was suffering from schizophrenia and as such, he was not in a position to make such a statement before the Magistrate. It has been submitted that the fact that her son was suffering from schizophrenia is also fully corroborated by the documents which have been furnished in this petition as well as in the subsequent inquiry which was conducted at the instance of this Court through the concerned District Legal Aid Authorities.
23. As directed by this Court, the District Legal Aid Authority, Kamrup(M) has submitted a report after recording the statement of the petitioner made before the Secretary of the District Legal Services Authority in which the petitioner had categorically stated under oath that Amit Bose is her son who was born on 03.12.1995 at Marwari Maternity Hospital, Guwahati and he had studied in Crl.Pet. No.237/2022 Page 14 of 55 Vivekenanda Vidyapith M.E. School till class V but he suffered from some Psychiatric problem and he was undergoing treatment at GMCH since 2013. She also categorically stated that he used to leave home without informing anyone many a times, and they had to search for him and bring him back home after days. It was also stated that once around 2014, he somehow went to Bangladesh via Bengal and some BSF people got in touch with her husband and her husband went to Balirghat P.S. in Paschim Dinajpur in Bengal and brought him home. She also claimed that her husband's original home is at Kamarbhita, Jalpaiguri in West Bengal and they have been settled in Guwahati since 1988 and are presently residing at Rodalipath, Udalbakhra, Lal Ganesh which falls under Dispur Police Station.
24. She further stated that on 02.01.2016 her son Amit Bose again went missing and it was only after 3 months that they came to know that he was lodged in Karimganj Jail, and though her husband went to Karimganj Jail, he came to know that his son was already convicted and sentenced to imprisonment for 1(one) year on being considered as a Bangladeshi national who had entered India without any valid passport, and on the basis of certain confessional statement made by him.
Crl.Pet. No.237/2022 Page 15 of 55
25. It has been categorically stated by her that her son must have confessed as he was suffering from mental disorder. He had even behaved violently on seeing his father and that he used to get angry and run away from home and it was due to his illness, he could not reveal his true identity to the authorities.
26. Learned counsel for the petitioner also has drawn attention of this Court to the report submitted by the DLSA, Cachar which was prepared by the Secretary of the DLSA, Cachar after interacting with the petitioner's son Amit Bose in the jail. After interviewing him, it was ascertained that he was a resident of Lal Ganesh, Guwahati and son Sri Arabinda Bose. Before the Secretary, DLSA, Cachar, he stated that in the year 2016 he had an argument with his father, after which, he boarded a train which was supposed to reach Silchar from Guwahati and when he reached Badarpur Station, he got off from the train there, and the local people there physically assaulted him thinking him to be a Bangladeshi and handed over him to the police. He stated that in the Police Station, the police insisted upon him to produce any identity card, which he could not, and thereafter, he was sent to jail.
27. We have noted that the report submitted by the DLSA, Cachar does not mention anything about mental condition of the said Amit Crl.Pet. No.237/2022 Page 16 of 55 Bose. But the report does indicate that Amit Bose was aware that he was a resident of Guwahati and his father's name is Arabinda Bose, who had left his house sometime in the year 2016 after an argument with his father and that he had not come from Bangladesh which plea was also taken by him before the Secretary, DLSA, Cachar when his statement was recorded as mentioned above.
28. In this petition while challenging the conviction by the learned Judicial Magistrate, First Class(II), Karimganj, convicting the petitioner's son for committing offence under Section 14 of the Foreigners Act, 1946, the petitioner has raised a number of legal issues, some of which are of seminal importance.
29. This Court has noted, though not contested by the respondents, that this petition has not been filed by the convicted person but by his mother on the plea that the convict, the son of the petitioner, was not mentally sound and was suffering from schizophrenia and accordingly, has filed this petition as the lawful guardian. Since no objection has been raised by the State respondents on this count, this issue may not detain us and we will proceed to examine the issue on merit.
It may, however, be noted that this petition has been filed under Section 482 read with Section 401 of the Code of Criminal Crl.Pet. No.237/2022 Page 17 of 55 Procedure [Cr.P.C.]. Section 401 Cr.P.C. provides that in the case of any proceeding, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers conferred on a Court of Appeal. Thus, we are of the opinion that the mother of the convict would have locus standi to prefer the petition under Section 401 Cr.P.C.
30. The State Government has doubted whether present petition would be maintainable against an order of conviction passed by the learned Magistrate on the basis of the plea of guilt.
It has been submitted that in a case arising out of conviction on the basis of pleading of guilty, no appeal will lie as provided under Section 375 of the Cr.P.C. Since the said order of conviction is not appealable, the course of action available to such a convicted person would be to seek a revision of the order before the Sessions Judge as provided under Section 397 of the Cr.P.C.
However, we are of the view that the present petition will be maintainable, if the petitioner is able to make out a case for invocation of revisional power under Section 401 Cr.P.C. or inherent power under Section 482 Cr.P.C.
Crl.Pet. No.237/2022 Page 18 of 55
31. As mentioned above, this petition has been filed under Section 482 Cr.P.C. read with Section 401 Cr.P.C. and as such we will examine whether the petitioner has been able to make out any case warranting interference from this Court under any of the above provisions of law.
As far as the scope of Sections 482 and 401 of the Cr.P.C. is concerned, though these are of different nature, yet, in one core area, there is a commonality, i.e., while exercising the inherent power under Section 482 of the Cr.P.C or the power of revision under Section 401 of the Cr.P.C., it must be for the purpose of preventing miscarriage of justice.
32. Before we proceed further, we would like to observe that the petitioner has sought to rely on certain documents which have been annexed to this petition, which were not placed before the learned Magistrate when the petitioner's son was convicted. It has been vehemently argued before us by the learned counsel for the petitioner that since the petitioner's son was suffering from Schizophrenia, and as such he was not in a position to understand the full implication of his plea of guilty, his conviction based on his alleged admission of guilt is vitiated. Further, there are documents in the form of birth certificate, school certificate etc which would Crl.Pet. No.237/2022 Page 19 of 55 clearly establish that the petitioner's son is an Indian and not a Bangladeshi.
However, we doubt whether such materials which have been brought on record subsequently through this petition can be referred to while examining the validity of the order of conviction rendered by the learned Magistrate.
Therefore, we will proceed to examine whether the order of conviction can be sustained based on the plea of guilt without reference to the materials which have been brought on record to our notice now.
While doing so, we will be also required to examine the scope of Section 482 Cr.P.C. (inherent power of this Court) and Section 401 Cr.P.C. (revisional power of this Court) which have been invoked and whether the factual circumstances as revealed in course of the proceeding leading to the conviction will warrant invocation of either Section 482 Cr.P.C. or Section 401 Cr.P.C.
33. As far as the scope of Section 482 Cr.P.C. and Section 401 Cr.P.C. is concerned, these had been considered in a number of cases. In this regard, we will refer to a few decisions.
34. The revisional power of the High Court conserves the power of the High Court to see that justice is done in accordance with the Crl.Pet. No.237/2022 Page 20 of 55 recognized rules of criminal jurisprudence and that its Subordinate Courts will not exceed the jurisdiction or abuse the power vested on them under the Court or to prevent abuse the process of the inferior Courts or prevent miscarriage of justice. [See State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659].
35. As far as Section 482 of Cr.P.C. is concerned, it is well settled that this inherent power of the High Court is meant to act ex debito justitia, to do real and substantial justice, for proper administration of the Court or to prevent abuse of process of Court. However, this extra-ordinary power under Section 482 of Cr.P.C. is to be exercised sparingly and with care and caution. But the Court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. [See CBI Vs. A. Ravishankar Prasad, (2009) 6 SCC 351].
36. The Hon'ble Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander and Another, (2012) 9 SCC 460 had the occasion to deal with scope of the revisional power and inherent power of the High Court, though it was in the context of quashing of a proceeding at the stage of framing of charge. Section 401 Cr.P.C. specially deals with the power of revision by the High Court, Crl.Pet. No.237/2022 Page 21 of 55 whereas Section 397 Cr.P.C. deals with the revisional of the High Court and Sessions Judges.
Para Nos.12, 13, 20, 21, 23 and 24 of the aforesaid decision in Amit Kapoor (supra) which are relevant are reproduced hereinbelow :
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories Crl.Pet. No.237/2022 Page 22 of 55 aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.
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20. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression „prevent abuse of process of any court or otherwise to secure the ends of justice‟, the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.
21. It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The Crl.Pet. No.237/2022 Page 23 of 55 inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor & Ors. v. State of Punjab & Ors. [AIR 1980 SC 258 : (1980) 1 SCC 43]. In that very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court‟s jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.
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23. In Janata Dal v. H.S. Chowdhary & Ors. [(1992) 4 SCC 305], the Court, while referring to the inherent powers to make orders as may be Crl.Pet. No.237/2022 Page 24 of 55 necessary for the ends of justice, clarified that such power has to be exercise in appropriate cases ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the powers requires a great caution in its exercise. The High Court, as the highest court exercising criminal jurisdiction in a State, has inherent powers to make any order for the purposes of securing the ends of justice. Being an extra ordinary power, it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its powers.
24. If one looks at the development of law in relation to exercise of inherent powers under the Code, it will be useful to refer to the following details : as far back as in 1926, a Division Bench of this Court In Re:
Llewelyn Evans, [AIR 1926 Bom 551] took the view that the provisions of Section 561A (equivalent to present Section 482) extend to cases not only of a person accused of an offence in a criminal court, but to the cases of any person against whom proceedings are instituted under the Code in any Court. Explaining the word "process", the Court said that it was a general word, meaning in effect anything done by the Court. Explaining the limitations and scope of Section 561A, the Court referred to "inherent jurisdiction", "to prevent abuse of process" and "to secure the ends of justice" which are terms incapable of having a precise definition or enumeration, and capable, at the most, of test, according to well- established principles of criminal jurisprudence. The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. With reference to the facts of the case, the Court held that in the absence of any other method, it has no choice left in the application of the Section except, such tests subject to the caution to be exercised in the use of inherent jurisdiction and the avoidance of interference in details and directed providing of a legal practitioner."Crl.Pet. No.237/2022 Page 25 of 55
37. Thus, though there are certain inherent limitations in exercise of revisional jurisdiction under Section 397 or Section 401 of the Code, or the inherent jurisdiction under Section 482 of the Code, when it comes to promotion of justice or to prevent injustice or abuse of process, such limitations imposed recedes to background.
38. In the present case, we have to examine as to whether the order of conviction based on the admission of guilt by the petitioner's son had caused any grave injustice or abuse of process of law so as to warrant this Court to exercise the revisional power under Section 401 of Cr.P.C. or inherent power under Section 482 of Cr.P.C.
39. The impugned order, on the face of it, does not appear to be illegal inasmuch as the learned Magistrate convicted the petitioner's son after he pleaded guilty as clearly mentioned in the impugned order dated 21.01.2016. However, examination of the same with reference to the attending and surrounding circumstances would show otherwise.
The learned counsel for the petitioner has vehemently argued before this Court that the learned Magistrate had casually dealt with the matter and did not take appropriate care and caution to arrive at Crl.Pet. No.237/2022 Page 26 of 55 his satisfaction that the said plea of guilt was voluntarily given and was not encumbered by any circumstances.
40. Conviction on the plea of guilty by an accused is permissible under the law as provided under the Code of Criminal Procedure.
As far as the trial before the Court of Sessions is concerned, if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon, as provided under Section 229 of the Code. Similarly, in respect of trial of warrant case by Magistrate, if the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon as provided under Section 241 of Cr.P.C. In the same manner, in respect of trial of summons-cases by Magistrate, if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon, as provided under Section 252 of the Cr.P.C. In case of petty cases, however, conviction on plea of guilty can also be ordered in absence of accused as provided under Section 253 of the Cr.P.C.
We are concerned with the conviction by the Magistrate under Section 241 of the Cr.P.C. as the trial in issue was a trial of warrant case based on the report of the police.
Crl.Pet. No.237/2022 Page 27 of 55
41. As far as trial of summons case by the Magistrate is concerned, before a person is convicted on the plea of guilty, the Magistrate is required to record the plea as nearly as possible in the words used by the accused which has been considered to be a mandatory provision and as such, failing to record as nearly as possible the words used by the accused has been held to be fatal. Though the expression "the Magistrate shall record the plea as nearly as possible in the words used by the accused" does not find place in respect of plea of guilty under Sections 229 and 241 of the Cr.P.C., the Hon'ble Supreme Court has held that it is not mandatory that upon a plea of guilty by the accused, the accused has to be invariably convicted inasmuch as it is the discretion of the Court whether to convict him or not.
Thus, it is ultimately the discretion of the Court to convict an accused based on his plea of guilt. But, once, the Court is required to exercise its discretionary power, naturally the Court has to consider all the relevant materials to enable to the Court to exercise the discretion properly. In that context, it becomes necessary and important for the Court to consider the surrounding and attending circumstances to arrive at a proper and just discretion. As a corollary, the Court ought not act solely on the plea of guilty. Crl.Pet. No.237/2022 Page 28 of 55
42. The plea of guilty is an admission of all the facts on which charge is founded as well as admission of guilty in respect of them. A plea of guilt in a criminal case can only be made in response to a charge and an informal admission as to guilt does not amount to formal plea of guilty and such admission has not in fact or law the same binding fact as plea of guilty. Before an accused can be convicted on a plea of guilty, it must be established that he has admitted all the facts of which charge is founded as well as guilt in respect of them [See 1957 Cril. Law Journal 144, Judicial Commissioner, Manipur].
Accordingly, it has been cautioned by the Hon'ble Supreme Court in a number of cases that the plea of the accused must therefore, be clear, unambiguous and unqualified. The Court must be also satisfied that he has understood that the nature of allegations made against him and admits them. The Court must therefore, act with caution and circumspection before accepting and acting on the plea of guilt and once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. [See State of Maharashtra Vs. Sukdeo @ Sukha, 1992 3 SCC 700] Crl.Pet. No.237/2022 Page 29 of 55 It has been also emphasized by the Hon'ble Supreme Court that before the trial Judge accepts and acts on the plea of guilt, he must administer the same caution unto himself.
The aforesaid observation was made with reference to serious offences.
43. Thus, in cases involving serious offences, it has been highlighted that though the plea of guilt can be the basis for conviction, before the order of conviction is passed on the basis of the plea of guilty, the Court must ensure that the accused who pleads guilty has been doing so with full knowledge and was also aware of the consequences of his plea. [See Abdul Kader Vs. Emperor, AIR 1947 Bombay 345]
44. Therefore, what can be said is that though an accused can be convicted on his pleading guilty, yet, the Court must exercise due care and caution to ensure that such a plea had been taken by the accused voluntarily and with full knowledge and understanding of the implications, more so, when it relates to serious offence, for which the Court must also consider the attending and surrounding circumstances.
45. In our opinion, though the offence under Section 14 of the Foreigners Act, 1946 may not appear to be a serious offence Crl.Pet. No.237/2022 Page 30 of 55 entailing prolonged incarceration, yet, it has serious implications in view of the fact the accused shall be treated to be a foreigner. Therefore, if an accused who considers himself to be an Indian, is declared to be a foreigner under the Foreigners Act, 1946, it would have serious repercussions to his rights and liberties and to that extent, we hold that any proceeding under the Foreigners Act, 1946 whereby an accused is declared a foreigner who had entered India unauthorizedly can be said to be committed a serious offence.
46. In the present case, accordingly, we would proceed to examine as to whether the learned Magistrate before convicting the petitioner's son as a foreigner on his pleading guilty, had taken appropriate care and caution to ensure that the accused understood the implication of what he was saying/confessing and that it was made voluntarily.
47. Before us, the mother of the accused petitioner has relied on some materials to show that her son was, at the relevant time, suffering from mental illness or Schizophrenia for which he had been undergoing treatment. The said fact, however, was not placed before the Magistrate and as such, on that score, perhaps, the order of conviction cannot be said to be ex-facie illegal. For the same Crl.Pet. No.237/2022 Page 31 of 55 reason, we are also not taking the aforesaid materials into account and will examine this issue without considering the said aspect.
48. What we have noted however, is that the learned Magistrate appeared to have proceeded post-haste in convicting the petitioner's son.
As can be seen from the record, the petitioner's son was arrested on suspicion of being a foreigner in Karimganj Town on 05.01.2016 at around 5 p.m. Thereafter, he was arrested by the police patrol and on the next day on 06.01.2016 he was produced before the Magistrate who remanded him to judicial custody till 20.01.2016. When he was produced on 06.01.2016 for the first time before the Magistrate, he was asked by the Magistrate as to whether he required a counsel to which he had answered in affirmative. Accordingly, one Smt. M.A. Choudhury, Legal Aid Counsel, was appointed to represent him. However, the record does not indicate that the Legal Aid Counsel was present in the Court when he was remanded by the Magistrate to the judicial custody on 06.01.2016. The record also does not show whether the said Legal Aid Counsel had interacted with the petitioner's son so as to give effective legal aid to him.
Crl.Pet. No.237/2022 Page 32 of 55
49. Be that as it may, when he was produced again on 20.01.2016 as fixed by the Magistrate, it is seen from the record that the Legal Aid Counsel, Smt. M.A. Choudhury had not made appearance on that day. It appears from the record that on 20.01.2016 when he appeared, the charge-sheet which was submitted before the Court on 18.01.2016 was furnished to the petitioner's son on 20.01.2016, and he was remanded to judicial custody till the next day on 21.01.2016. As per records the Magistrate fixed 21.01.2016 for charge consideration.
Thus, what we have noted is that on 20.01.2016 when the petitioner's son was furnished with a copy of the charge-sheet, his appointed legal aid counsel was not present, which would clearly show that there was no consultation between the petitioner's son and his lawyer about the charge against him. The petitioner's son was not given effective legal assistance on 20.01.2016.
On 21.01.2016, when the petitioner's son was produced, the Magistrate proceeded to frame charge under Section 14 of the Foreigners Act, 1946 against the petitioner's son. As can be seen from the impugned order dated 21.01.2016, the Legal Aid Counsel appeared for the petitioner's son. It is also seen from the impugned order dated 21.01.2016 that charge was framed on the same day and was read over and explained to the accused to which he Crl.Pet. No.237/2022 Page 33 of 55 pleaded guilty. The impugned order also mentions that the accused had filed an application through the Ld. LAC Smt. M.A. Choudhury stating that he pleads guilty and he would not do such an offence again.
50. The impugned order dated 21.01.2016 records that considering the nature of the offence and the plea of guilt by the accused which was recorded in Bengali language and interpreted to him, the Court was satisfied that the plea of guilt was made voluntarily and accordingly, the same was accepted and the accused was sentenced under Section 14 of the Foreigners Act, 1946 and he was convicted to undergo Rigorous Imprisonment (RI) for 1(one) year.
51. What the aforesaid impugned order dated 21.01.2016 shows is that it was the third time the accused was produced before the Magistrate on 21.01.2016 after his first production on 06.01.2016 and second production on 20.01.2016. From the records, it is also seen that the charge-sheet was submitted by the prosecution under Section 14 of the Foreigners Act against the petitioner's son on 18.01.2016. However, a copy of the charge-sheet was furnished to the accused (the petitioner's son) only on 20.01.2016 when he was produced from the judicial custody, on which date, his counsel was Crl.Pet. No.237/2022 Page 34 of 55 not present. There is nothing on record to show that the Legal Aid Counsel, Smt. M.A. Choudhury who remained absent on 20.01.2016 had any interaction with the accused before he was produced on 21.01.2016. What we see is that on 21.01.2016 when the accused was produced, the said Legal Aid Counsel submitted an application on behalf of the accused stating that he is the accused in the said case and he had mistakenly entered India from Bangladesh and he had been in the jail for a long period of time.
52. Thus, what is evident is that on the next day of furnishing a copy of the charge-sheet when the petitioner's son had no opportunity of consultation with his appointed lawyer, the charge was framed. On the same day he made the admission of guilt and he was convicted and sentenced on the same day.
53. We have also noted that when the accused was produced before the Magistrate on 21.01.2016, the accused apparently made a statement before the Magistrate which had been reproduced above. A close scrutiny of the said statement given by the accused before the Magistrate would show that the reason assigned for pleading guilty is different from what he mentioned in his application. In his statement made before the Magistrate, he stated that he had entered this country to look for livelihood and he had Crl.Pet. No.237/2022 Page 35 of 55 understood his mistake and since he has an old father, mother and sister, he pleaded guilty and assured that he will not commit this mistake again. On the other hand in his application drafted by his Legal Aid Counsel, he mentioned that he had entered this country mistakenly and since his family members were going through hardships he wanted to plead guilty.
54. Perusal of the impugned order dated 21.01.2016 shows that the learned Magistrate on consideration of the case records and after hearing both sides had framed the charge under Section 14 of the Foreigners Act, 1946 which was read over and explained to the accused to which he pleaded guilty.
From the records it is seen that the statement of the accused recorded under Section 161 Cr.P.C., formed part of the record which was submitted to the Magistrate, which was perused by the Magistrate.
The said statement of the accused recorded under Section 161 which formed part of the record submitted to the Court, reads as follows:
"আমার নাম ও ঠিকানা উপছরাক্ত মছে ছিাম । আছম গৃহস্তী কছর।
ছবগে প্রায় ১(এক) মাস পূছবের আমার বাছপর সাছে মছিমাছনয হইয়া আছম বাছি হইছে বাছহর হইয়া যাই। আমার সছগেঁ টাকা, পয়সা না োকায় আছম Crl.Pet. No.237/2022 Page 36 of 55 কাছের সন্ধান কছরছে োছক। ইছে মছযয বাাংাছিলর একেন অপছরছিে লাছকর সছগ আমার সাক্ষাৎ হয় ও ছেছন আমাছক কাে ছিছবন বছয়া আমাছক সছগ ছনছয় আছসয়া সন্ধযার অন্ধকাছর একটি সুিগ ছিয়া পার কছরয়া লিয় ও লস আবার িাছছয় যায়। আছম হাওিা যাই ও লিছি লয় ময়নাগুছি আছসয়াছি। লসিান হইছে আছম লেন লযাছগ আছপুর আছস। আছপুর হইছে লেন লযাছগ লকাছনা কাে পাইছবা ভাছবয়া গুয়াহাটিছে আছসয়া লপ ছেঁ ি। লসিাছন িুইছিন একটি িাছয়র লিাকাছন কাে করার পর মাছক আমাছক লিিাইয়া লিয়। োরপর আছম একিানা লেন এ উঠি ও আছসয়া বিরপুর লপ েঁছি ও বিরপুর হইছে বাছস উঠিয়া কছরমগঞ্জ আছসছ রাস্তাছে গাছির ভািা িাছহছ আছম ছিছে না পারায় আমাছক রাস্তাছে নামাইয়া লিয় ও আছম ইাং ০৫/০২/২০১৬ োছরি ছবছকছবা পাছয় হােঁটিয়া কছরমগঞ্জ লপ েঁছি। এিাছন আমাছক পুছছস পাইয়া আমাছক ছেজ্ঞাসাবাি কছর ও োনায় ছনয়া আছস।
আছম কাছের সন্ধান কছরছেছিাম। ছকন্তু লকাছনা কাে পাই নাই। ইহাই আমার বক্তবয। আমার পাসছপাটে বা অনযছকাছনা কাগে পত্র নাই।"
The English translation reads as follows, "I give my name and address above. I am a family man. A month ago, I left home due to a quarrel with my father. I kept looking for work as I had no money with me. Meanwhile, I met a stranger from Bangladesh who assured me that he would give me work and took me through a tunnel in the darkness of the evening and then he went back. I went to Howrah and then I reached Moinaguri. From there, I reached Alipurduwar by way of train. Then I came to Guwahati from Alipurduwar by way of train thinking of getting a job here. After working in a tea shop for two days, the owner fired me. Thereafter, I boarded a train and reached Badarpur. When I got Crl.Pet. No.237/2022 Page 37 of 55 on the bus from Badarpur and came to Karimganj, I was asked for the fare, which I could not pay and accordingly, they dropped me on the road and thereafter, on 05.02.2016 in the evening I reached at Karimganj on foot. There the police found me and inquired about my identity and brought me to the police station. I was looking for work but did not get any work. This is my statement. I do not have any passport or any other documents."
55. Thus, on perusal of the statement made by the petitioner's son recorded under Section 161 Cr.P.C., it is seen that the petitioner's son stated that he had left house after a quarrel with his father and as he was having no money with him, he was looking for work etc. and with the help of an unknown Bangladeshi he entered a tunnel and reached Howrah, though no detail of such tunnel or where it emerged, has not been stated.
On the other hand, in the application submitted by the petitioner's son before the Court as well as his statement made before the Magistrate as quoted above, the aforesaid element of having quarrel with his father or being helped by an unknown Bangladeshi to enter India do not find mention.
56. Thus, what we see is that as per the records available, the petitioner's son made a statement before the police during the investigation recorded under Section 161 Cr.P.C. in which there is a Crl.Pet. No.237/2022 Page 38 of 55 reference to having a quarrel with his father before he left his house and he being brought by an unknown Bangladeshi. On the other hand, on perusal of the application filed before the Court and also the statement made by him admitting his guilt recorded by the Magistrate, it is seen that these statements do not contain the said aspects.
Though the allegation was that he had entered India for search of work and earning his livelihood appear to be common in all statements recorded under Section 161 Cr.P.C., in the application filed before the Magistrate, and the statement made before the Magistrate, the reason for entering India does not appear to be consistent as discussed above.
57. This difference i.e. reason for leaving his house and entering the country which, in our view, appears to be significant, does not appear to have been noticed by the learned Magistrate at the time of convicting the petitioner's son. If the learned Magistrate had noted the difference, perhaps, the learned Magistrate could have proved further to examine whether the petitioner's son was making his statement voluntarily and whether he had fully understood the implications of the same.
Crl.Pet. No.237/2022 Page 39 of 55
58. The two statements made by the petitioner's son on the same day on 21.01.2016 do not appear to be consistent, though the Magistrate records in the order that he was satisfied that the accused had made statement voluntarily. Further, these two statements are not consistent with the statement by the petitioner made under Section 161 Cr.P.C.
We are aware that a statement made by an accused, or for that matter of a witness, recorded under Section 161 Cr.P.C. is inadmissible except for the purposes mentioned under Section 162 Cr.P.C. However, the Magistrate while considering framing charge against the accused could have also looked into it as it formed part of the record which was produced before the learned Magistrate, though no adverse view could have been taken against the accused on the basis of such statement recorded under Section 161 Cr.P.C.. As can be seen from the impugned order, there was no trial and it was at the stage of framing of charge that the petitioner's son admitted his guilt and was accordingly convicted.
59. We have also considered this aspect that there is no specific format prescribed under the rules or statute for recording the plea of guilty, as in the case of recording of confessional statement under Section 164 Cr.P.C. However, the manner in which the Magistrate Crl.Pet. No.237/2022 Page 40 of 55 proceeded to convict the petitioner's son on the basis of the plea of guilty made by the accused on the same very day when he was produced and charge was framed and, that too, without having the assistance of his lawyer on the earlier on 20.01.2016, leaves us with serious doubt as to whether the accused, the petitioner's son, had really understood the implication of his plea of guilty and whether it was voluntarily made. In other words, was the recording by the Court of the admission of guilt convicting him on such plea proper and validly done?
60. It may be noted that it has been specifically provided under Section 164(2) of Cr.P.C. that the Magistrate before recording any confession, has to explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him, and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reasons to believe that it is being made voluntarily.
Sub-Section (4) to Section 164 Cr.P.C. further provides that any such confession shall be rendered in the manner provided in Section 281 Cr.P.C. for recording the examination of an accused and shall be signed by the person making confession and the Magistrate shall make a memorandum at the foot of that record to the effect Crl.Pet. No.237/2022 Page 41 of 55 that he had explained that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him, and that this confession was voluntarily made and that it was taken in his presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
The aforesaid provisions have been made to ensure that the accused making the confession does so voluntarily and that he understands the implication of what he is saying when he is warned that what he states before the Magistrate may be used as evidence against him.
We understand that making a admission of guilt before a Court is different from recording of confessional statement under Section 164 Cr.P.C., yet, it is important to ascertain that such an admission of guilt before the Court has been also made voluntarily and after fully understanding the implications, for which the Court has to take all necessary care and caution.
61. As discussed above, even though Section 241 Cr.P.C. does not provide any specific format, it is desirable that the Court records the admission of guilt in clear terms with reference to the charges made Crl.Pet. No.237/2022 Page 42 of 55 so as to leave no element of doubt that the accused was admitting to the charges framed against him. Thus, ideally the Court should ask specific questions with reference to the charges and record answer given by the accused to these questions. It is for the reason that a plea of guilty is an admission of all the facts on which the charge is founded as well as an admission of guilt in respect of them.
62. In the present case, what we have noted is that no such procedure was adopted by the Court but it was a general observation by the Court that charge under Section 14 of the Foreigners Act, 1946 has been framed against the accused and the contents of the same is read over and explained to the accused to which he pleaded guilty.
In our opinion, the aforesaid recording by the Court does not clearly indicate that the accused had understood the specific charges made against him that he had specifically admitted to the specific charges.
63. That apart, we have also noted a significant irregularity in the proceeding.
The impugned order dated 21.01.2016 records that "considering the materials on record, Charge under Sec.14 of Crl.Pet. No.237/2022 Page 43 of 55 Foreigners Act, 1946, is framed against the accused Amit Bose and the contents of the same is read over and explained to the accused, to which he pleaded guilty." However, there is nothing on record to show that such charge was framed as mentioned in the impugned order. The original record requisitioned contains 30 pages and we have gone through each and every page. Though charge-sheet prepared by the prosecution which was submitted to the Magistrate, on 18.01.2016 is in the record, yet, there is no document or record in which framing of charge against accused is recorded. What is the exact charge framed against the petitioner's son? There is no such framing of charge in the record. This itself indicates that the Magistrate proceeded against the accused in a hurry. It is difficult to assess the plea of guilty without reference to the charge framed. In the present case, we are not able to find the charge framed against the petitioner's son. Non-availability of document indicating framing of charge in the record is one of the factors which has been taken into consideration by this Court in coming to the conclusion that the Magistrate appeared to have proceeded against the accused in posthaste to convict the accused on the said plea of guilty.
As discussed above, the manner in which the learned Magistrate proceeded to convict the accused, it does not appear that Crl.Pet. No.237/2022 Page 44 of 55 the plea of guilt was made by the accused voluntarily and after understanding the consequences thereof.
64. There is nothing on record to indicate that the Magistrate had taken due care and caution to make the accused understand that what he was stating before the Court had been made voluntarily and that he made the statement having fully understood the implications thereof.
65. We are of the view that if the Magistrate had taken some due care and caution, he could, perhaps, have found out that the accused was not really in the proper frame of mind. Unfortunately, there is nothing to indicate as mentioned above that any such exercise was undertaken by the Magistrate with due care and caution.
66. As discussed above, though the petitioner's son was convicted under Section 14 of the Foreigners Act, 1946 and it may not appear to be a serious offence which is triable by Sessions Court, yet, it would deprive him the citizenship of this country.
Since the petitioner was apprehended inside the country and not at the border crossing which may indicate a prima facie case of being a foreigner, the Magistrate ought to have taken more precautions before accepting the plea of guilt. Crl.Pet. No.237/2022 Page 45 of 55
67. We have noted that the learned Magistrate did not warn even though it is not statutorily required as in the case of recording of statement even under Section 164 Cr.P.C. that he is not bound to make the plea of guilty and that if he makes a plea of guilty he can be convicted on the basis of such a plea.
68. Considering the facts and circumstances in entirety as discussed above, we are not satisfied that the conviction order was passed by the learned Magistrate after being fully satisfied with the voluntariness of the plea of guilty. We are of the view that before a plea of guilt is recorded, as far as practicable, the Court must put questions which must be recorded with the answers given by the accused as to understand whether he had understood the charge and whether he is willingly pleading guilty and whether he has understood the implications of such plea of guilt. These are to ensure that a person does not plead guilty by assuming that by taking such a plea of guilt, he may be relieved of Court proceedings as happened in the present case. The accused stated before the Court that since he has been languishing in jail for a long time and his parents and relatives are in distress, he wanted to be relieved of such difficulties of the Court proceedings by entering the plea of guilty.
Crl.Pet. No.237/2022 Page 46 of 55
In this connection, as discussed above, there is already on record before the Magistrate in the form of statement of the accused recorded under Section 161 Cr.P.C. which was placed before the Court which indicates that he had run away from his home after a quarrel with his father though in his statements made before the Magistrate, he stated that he had come to India for seeking better livelihood. Thus, in view of the inconsistent stands taken by the accused, the Magistrate ought to have satisfied himself properly by asking questions to him as to how he entered and the reason for entering India from Bangladesh and also why he is pleading guilty, which exercise, the learned Magistrate had not taken as can be seen from the records discussed above.
69. There is yet another issue which has perturbed us. In the present case, a copy of the charge-sheet was given to the accused on 20.01.2016 when he was produced for the second time before the Magistrate, on which date, his lawyer was not present. Therefore, it is clearly evident that he did not have the benefit of any legal assistance or advice or legal aid from his lawyer when he received the copy of charge-sheet. Of course, the lawyer appeared for him on the next day on 21.01.2016 but there is nothing to indicate that the accused was made to understand by explaining, the implications of his admitting guilt by his lawyer. Crl.Pet. No.237/2022 Page 47 of 55
70. It may be noted that as per the Legal Services Authority Act, 1987, under which the legal aid counsel was appointed for the accused, the legal service rendered was supposed to be not only free but also "competent". "Competent" legal service means effective and meaningful legal service, thus, making the litigant understand the full implications and consequences of his acts and words in a proceeding.
In the facts of the case as revealed by records, we are not satisfied that the legal service rendered by the Legal Aid Counsel to the petitioner's son was "competent legal service", as we doubt that the petitioner's son was made fully aware of the implications of his act of admitting guilt and that it was voluntary and not with the intention to avoid the proceedings by pleading guilty.
In our opinion, this lack of "competent" legal service to the petitioner's son has prejudiced him which led to denial of fair trial, which in turn vitiated the trial and order of conviction.
71. We are of the view that the manner and circumstances in which the Magistrate proceeded to convict the petitioner's son without taking due care and caution for being satisfied that the petitioner's son was making the admission of guilt voluntarily and having fully understood the implication, coupled with lack of Crl.Pet. No.237/2022 Page 48 of 55 "competent" legal assistance to the petitioner's son, clearly make out a case of failure of justice warranting interference by this Court by exercising our revisional power under Section 397 and Section 401 of Cr.P.C and to quash the proceedings under Section 482 of Cr.P.C. by invoking inherent power of this Court.
72. For the reasons discussed above, we hold that the conviction of the petitioner's son under Section 14 of the Foreigners Act, 1946 vide impugned order dated 21.01.2016 passed by the Judicial Magistrate, First Class(II), Karimganj in G.R. Case No.39/2016 is vitiated and thus, illegal.
73. Having held that the conviction of the petitioner's son by the Magistrate on his alleged plea of guilt is illegal, under normal circumstances, the matter would have been remanded to the learned Trial Court for re-trial. However, in the facts as have been disclosed before us, in our opinion, it would cause more hardships to the petitioner's son and will not be in the interest of justice, if the matter is remanded to the learned Trial Court for re-trial at this stage, after the petitioner's son has been already incarcerated for more than 6(six) years, and in the light of the materials as placed before us, including the birth certificate, school certificate, medical certificate etc. Crl.Pet. No.237/2022 Page 49 of 55
74. It is to be mentioned that the petitioner's son was charged of being a Bangladeshi national who had entered this country without valid authorization/passport or visa.
75. Since he was proceeded under Section 14 of the Foreigners Act, 1946, the main issue is whether he is a foreigner or not.
From the records in the form of various documents annexed to the petition and the reports of the District Legal Services Authority of Kamrup (M) and Cachar, which have been made available before this Court, it does not appear that the petitioner's son is a foreigner but an Indian citizen who is born to Mr. Arabinda Bose and Nilima Bose, and is a resident of Radali Path, P.S. Dispur, Guwahati, Kamrup (Metro), Assam as mentioned above. Thus, there may not be any need to proceed against the petitioner's son under Section 14 of the Foreigners Act, 1946. At the same time, we are mindful of the fact that these are facts and evidences which have been brought to our notice during this proceeding and there was no occasion on the part of the investigating authority of the State to verify.
76. We are thus satisfied on the basis of these evidences and materials brought before us that the petitioner's son is an Indian Crl.Pet. No.237/2022 Page 50 of 55 and not a foreigner, but these materials and evidences have been brought to our notice after completion of the trial by the Magistrate.
77. We are also mindful of the fact that in this petition filed before this Court, the State had all the opportunities to contest and dispute the pleading and evidences so brought on record before us, but the State did not contest the same.
It is observed that the matter has been pending for more than 6(six) years. We have also noted that the materials and evidences which have been brought on record in this proceeding have not contested by the State thus have remained unrebutted, even though these were not part of the records available before the learned Magistrate. We have also kept in mind that the District Legal Services Authority (Kamrup) had the occasion to examine the petitioner in person and accordingly, submitted a detail report to this Court.
Under the circumstances, we are inclined to put an end to the proceeding against the petitioner's son. However, we are also of the view that if the competent authorities of the State wish to verify these evidences, materials and facts which have been brought before us, they may do so, so that in the event any doubt, the competent authorities of the State may approach this Court again for any necessary directions in this regard.
Crl.Pet. No.237/2022 Page 51 of 55
78. However, in our view, such a process of verification cannot be an open ended one in view of the peculiar facts as obtaining before us as discussed above.
Accordingly, while setting aside the conviction order of the petitioner's son, we give liberty to the State authorities to verify these facts, materials and evidences which have been brought on record in this proceeding as mentioned above, within a period of 1(one) month from today and if on such verification made, if any of the documents, materials brought on record had not been found correct, the State authorities may approach this Court with reference to this petition, for appropriate orders, but shall not take any prejudicial action against the petitioner/petitioner's son without leave of this Court.
It is also made clear that if said verification-examination is not concluded within a period of 1(one) month from today, the matter shall stand concluded finally, and there shall be no further proceeding as regards the citizenship of the petitioner's son.
79. We have made the aforesaid direction by invoking our inherent power as provided under Section 482 of Cr.P.C. and guided by the observation of the Hon'ble Supreme Court in Gian Singh Vs. State of Punjab, (2012) 10 SCC 303 in the following words, Crl.Pet. No.237/2022 Page 52 of 55 "53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, „nothing in this Code‟ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non."
We are of the view that concluding this proceeding in the manner discussed above will serve the ends of justice. Crl.Pet. No.237/2022 Page 53 of 55
80. Accordingly, for the reasons discussed above, the present petition is allowed by setting aside the conviction order of Sri Amit Bose, S/o of Sri Arabinda Bose, dated 21.01.2016 passed by the learned Judicial Magistrate First Class(II), Karimganj in G.R. Case No.39/2016 with liberty to the State to verify the documents and the records brought before this Court within one month as mentioned above.
Resultantly, the petitioner's son, Sri Amit Bose, S/o Sri Arabinda Bose who is presently in the custody of the petitioner shall be allowed to remain free without any condition.
81. Before we part with this judgment, we would also like to make the following observations and directions.
Since, this petition has been filed on behalf of the petitioner on a pro-bono basis, as submitted before this Court by the learned counsel for the petitioner Ms. Pooja Agarwal, while we record our appreciation of the able legal assistance rendered by Ms. Pooja Agarwal, learned counsel for the petitioner, since the petitioner claims to belong to a weaker section of the society, the petitioner may be continued to be provided free legal aid for which we appoint Ms. Pooja Agarwal to render all legal aid and assistance as the counsel for the petitioner/petitioner's son during the verification Crl.Pet. No.237/2022 Page 54 of 55 process and ancillary proceeding, if any, for which the Assam State Legal Services Authority will ensure payment of appropriate fees to the learned counsel as per rules and the concerned District Legal Services Authority and the Assam State Legal Services Authority shall render all such legal aid and assistance to the petitioner/petitioner's son as the case may be.
JUDGE JUDGE
Comparing Assistant
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