Delhi District Court
Barkha Singh vs The State (N.C.T. Of Delhi) on 14 January, 2010
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Revision No. 02/2010
Barkha Singh
W/o Sh. Ashok Singh
R/o B-5/183, Safdarjung Enclave,
New Delhi ........Petitioner
Vs
The State (N.C.T. of Delhi) ........Respondent
Date of Institution 04/01/2010
Date when arguments
were heard 14/01/2010
Date of Order 14/01/2010
ORDER
This revision petition is filed by the petitioner against the order dated 17/12/09 passed by the learned Metropolitan Magistrate wherein the petitioner was convicted under Section 3 of West Bengal Prevention of Defacement of Property Act, 1976 (in short Act) and releasing her after due admonition under Section 3 of the Probation of Offenders Act and further directed the petitioner to deposit Rs. 2,000/- towards the cost of proceedings under Section 5 of Probation of Offenders Act.
The notice of the petition was given to the State and Addition Public 2 Prosecutor has contested the petition.
The brief facts giving rise to the present revision petition are that the FIR No. 363/03 was registered against the petitioner for allegedly affixing banners in her name for the Delhi Legislative Assembly Election on 01/12/03 at 8.50 a.m. for the post of MLA as Congress Candidate on the Main Road in front of H. No. 81, Vasant Enclave due to which the property in public view was defaced by the abovesaid affixing of the banners.
The petitioner contested the case and appeared before the learned trial court and was released on bail. The Notice under Section 251 CrPC was given to her on 16/02/2006 for the offence under Section 3 (2) of the Act, to which she pleaded not guilty. Thereafter, the case was put to trial, as per prescribed procedure for the summons case by learned 8Metropolitan Magistrate and on 10/08/06 one witness of prosecution the Duty Officer was recorded. But later, on 17/12/09, on the plea of guilt of the petitioner the learned Metropolitan Magistrate by taking recourse to summary trial procedure by using prescribed Summary Trial Register convicted the petitioner under Section 3 (2) of the Act vide Summary Trial Entry No. 492 and passed the order of conviction, admonition and cost as referred before. The cost was also deposited by the petitioner with the Court on the same day as per order sheet dated 17/12/2009 of the learned 3 trial court. Aggrieved by the impugned order of conviction the petitioner had filed the present revision petition.
The learned Counsel for the petitioner has argued that the procedure adopted by learned Metropolitan Magistrate is against law. When the accused was put to summon trial and the procedure of summon trial was being followed there was no need for learned trial court to record the plea of guilt without explaining the details of the offence alleged against the petitioner/accused then convicting the petitioner in the Summary Trial Register by invoking the Summary Trial Procedure. The authorities relied upon by Counsel for the petitioner are :-
1. Surendra Kumar Yadav Vs. State of Bihar 1989 Cri.L.J. 1967;
2. State of Karnataka Vs. Mallappa Shidlingappa Ganagi 1979 Cri.L.J. 1482
3. Kishorchandra Bhanushanker Vs. Bhavnagar Municipality and another 1969 Cri.L.J. 1248 (Vol. 75, C.N. 341) = AIR 1969 GUJARAT 290 (V 56 C 49) It is also argued that the petitioner is a sitting MLA and the irregular and illegal procedure adopted by the learned trial court has put the political career of the petitioner at stake. So the impugned illegal and irregular 4 order of the learned trial court should be sit aside.
Learned Additional Public Prosecutor has argued that the petitioner herself has pleaded guilty before the learned trial court so she cannot now claim that the order should be set aside and she cannot claim any relief at all against the impugned order. It is also argued that in contested cases of summary trial procedure, the summons trial procedure is to be followed which was being done. Since the petitioner pleaded guilty, she cannot challenge the impugned order passed by the Summary Trial Register.
I have heard learned Counsel for the petitioner, learned Additional Public Prosecutor for respondent State and have also gone through the authorities relied upon by learned Counsel for the petitioner and relevant provisions of law.
During the course of arguments, it is not disputed that there is no provision of law which authorises the learned Metropolitan Magistrate who is trying a summons case as per summons trial procedure prescribed in the Criminal Procedure Code to switch over to the summary trial procedure by recording plea of guilt of the accused and then passing order on such plea in the summary trial register. In the absence of any such law prescribed in the Criminal Procedure Code, 1973 and in the absence of inherent power vested in the magistracy or the power of review of its order, to switch over 5 from summon trial procedure to summary trial procedure, the learned trial court in my view has committed illegality or atleast material irregularity in switching over from the summon trial procedure to the summary trial procedure in this case.
When the case was in the midst of evidence instead of recording the plea of the guilty of the petitioner in the summary trial register the learned Metropolitan Magistrate ought to have completed the evidence of prosecution and then recorded the statement of the petitioner under Section 281/313 CrPC and not before that.
In Kishorchandra Bhanushanker's case (supra) relied upon by learned Counsel for the petitioner, accused initially pleaded not guilty and there was no evidence offered in support of prosecution and the learned Magistrate recorded further plea of the accused under Section 342 CrPC, 1898 ( now under Section 313 CrPC, 1973 ) and convicted the accused which procedure was found illegal by Hon'ble Gujrat High Court as the same prejudiced the interest of the accused, seriously.
In Surendra Kumar's case (supra), it was held that merely recording in the order sheet that the substance of accusations has been explained, cannot be regarded as proper and necessary compliance of the mandatory 6 provisions of S. 251 CrPC. Such an order cannot, therefore, be sustained. In the present case, initially Notice under Section 251 CrPC given on 16/02/2006 to the petitioner looks to be alright and is not challenged. What is challenged in the summary trial procedure, the plea of guilt is not properly recorded, however, Surendra Kumar's case (supra) does not deal with the recording of plea of accused in summary trial procedure and in summary trial register. Therefore, Surendra Kumar's case (supra) does not directly apply to the present case.
In Subramanium Sethuraman v State of Maharashtra AIR 2004 SC 4711, it was observed as follows:
"16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion."
In view of indication given in Subramanium Sethuraman's case 7 (supra) once the plea of the accused is recorded under Section 252 CrPC the trial should expeditiously be carried to its logical conclusion by recording evidence of prosecution and statement of accused and then evidence of accused. But instead of taking trial to logical conclusion the learned trial court, in between, adopted summary trial procedure which as as already stated is impermissible and the above observations are also justified by Subramanium Sethuraman's case (supra).
There is yet another reasoning which makes the impugned order passed by learned Metropolitan Magistrate unjustified. In serious cases, despite plea of guilt, accused should not be convicted.
In State of Karnataka Vs Mallappa Shidilingappa Ganagi 1979 Cri L.J. 1482, relied on behalf of the petitioner the following observations were made by Division Bench of Karnataka High Court :
"-------------- The order sheet maintained by the Magistrate shows that on 17.1.1978 the documents referred under Section 173 (5) CrPC 1973, were furnished to the accused and at the same time substance of the accusation was read over to the accused and the accused pleaded guilty. In view of this fact we are of opinion that accused was not afforded sufficient opportunity to acquaint himself what the case of the prosecution was against him,understand the same and prepare himself either to claim that he wanted to 8 defend or to decide to plead guilty. The accused has given the same answer to all the questions namely " Nanu gunne Kabool maduttene". When translated into English, it means I admit the offence. The way in which the accused has stated in his plea shows quite clearly that he has given his plea in a mechanical manner. Before accepitng the plea of guilty it is the bounden duty of the Magistrates to satisfy themselves that the concerned accused has understood the charge or the susbstance of the accusation against him and the concerned accused has after understanding the same pleaded guilty and also after realising the consequences that follow. The aforementioned facts and circumstances leave much for speculation as to whether the accused had understood what the prosecution case was against him and pleaded as narrated above realising what would be the consequence of his plea."
In State of Mizoram v. Ramengmawia 2006 Cri.L.J. 1188 (Gauhati)(DB) it was held:
"23. From a careful reading of what has been observed and held in Sukhdeo Singh (supra), it is abundantly clear that in law, there is no absolute bar, on the part of the Court of Sessions, to convict an accused on his plea of guilty; but before the conviction of the accused is based entirely on his plea of guilt, the Court must take care to ensure that the plea of the accused is voluntarily, clear, unambiguous and unqualified, that the accused understands the nature of the allegations made against him and admits them and that the accused admits all such facts, which 9 are necessary and essential to constitute the offence.
24. What further logically follows is that the Court must also be satisfied that the facts places before it in support of the plea of guilt must be in themselves sufficient to sustain the offence charged with. In other words, the Court must have before it all such facts, which are essential to constitute the offence and such facts must be admitted by the accused before the plea of guilt of the accused is acted upon or conviction is based thereon.
25. We may hasten to point out that unlike Section 229 Cr. P.C., where the legislature allows the Sessions Court merely to record the plea of guilt of the accused and convict him thereon, Section 252 Cr. P.C., which empowers a Magistrate, in the cases, which are triable by summons procedure, to convict the accused on 'his plea of guilty' requires that a Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict thereon. Unlike Section 252, though Section 229 does not cast any obligation on the Sessions Judge to record the plea of the accused as nearly as possible in the words used by the accused, yet prudence demands that the Court records the plea in the words used by the accused so that the Court confirming conviction and sentence may know what exactly the plea of the accused was.
26. In the case at hand, the record reveals that the learned Court below framed the charge under Section 302 IPC against the accused. The charge was to the effect that the accused had committed murder by killing his grandfather, Sawikima, with an axe. The mere killing, it needs to be reiterated, is not necessarily an offence under Section 302 IPC. Imperative it was, therefore, on the part of the learned trial Court , to frame an appropriate 10 charge indicating as to how the offence of murder had been committed by the accused. This apart, there is absolutely no indication from the materials on record that the learned trial Court ever it was brought to notice of the accused that he had the freedom not to plea guilty to the charge framed against him. The learned trial Court did not make any effort to determine if the accused understood the consequences of pleading guilty to the charge and/or whether the plea of guilty of the accused was free and voluntary or whether the same was influenced by any person or any factor. In fact, not even slightest of endeavors was made by the learned trial Court to determine if the facts on record, as presented before the Court at the stage of recording of the plea of guilt, reflected all the ingredients constituting the offence of murder. Situated thus, we are satisfied that the learned trial Court, in the facts and circumstances of the present case, ought not to have acted upon the plea of guilty of the accused. Coupled with these disquieting features, it is also imperative to note that the learned trial Court has assigned no reason whatsoever as to why it opted to base conviction of the accused on his plea of guilty.
27. In the result and for the reasons discussed above, this reference fails. The conviction of the accused and the sentence passed against him are hereby set aside and the matter is remanded to the learned trial Court for retrial."
In Ram Kumar v. State of U.P., (Allahabad)(DB) 1998(1) R.C.R.(Criminal) 816 : 1998 Cri.L.J. 1267 it was held:
"10. Almost all the High Courts of the country have taken the view that the court should not act 11 upon the plea of guilty in serious offences but should proceed to take the evidence as if the plea had been one of not guilty and should decide the case upon the whole evidence including the accused plea. We do not consider it necessary to refer to those decisions in detail. As mentioned earlier the appellant had pleaded not guilty and as such there was no occasion for the court to record a finding of conviction as contemplated by Section 229, Cr.P.C. The prosecution having led no evidence to prove its case, the conviction of the appellant has to be set aside."
In Manish Misra v. State of U.P., (Allahabad) 2003 Cri.L.J. 4085 :
2004(2) R.C.R.(Criminal) 33 it was held:
"12. The above decisions of various High Courts and of this Court also show that in cases of serious offences the Court should not act upon the plea of guilty. There can be no dispute that the offence under Section 21 of the Act is of serious nature providing deterrent punishment and as such the Court should not act upon the plea of guilty but to proceed to decide the case on merit after taking the evidence."
In Gopal v. State, (Madras) 1999(2) R.C.R.(Criminal) 424 : 1999 Cri.L.J. 813, it was observed as follows:
"3. The learned counsel for the petitioner contended that the plea of guilty by the petitioner is not voluntary and he had been made to plead guilty promising that he would be let off with the fine. The docket entry filed also would show that even on the date when the charge sheet was filed 12 i.e. on 26.5.92, the memo has been filed pleading guilty. The counsel who appeared for the petitioner also filed an affidavit, pointing out the circumstances under which the memo was filed. In view of the decision in Thippeswamy v. State of Karnataka, AIR 1983 SC 747 : 1983 Cri LJ 271, the plea bargaining is illegal and violative of Article 21 of the Constitution. No summons were also issued to the petitioner for appearance on 26.5.92, thereby indicating that there was influence on the part of the police against the petitioner. Both the courts below wrongly came to the conclusion and ultimately convicted the petitioner without giving any opportunity."
It was also held:
"5. The learned public prosecutor contended that it is a new contention raised by the petitioner only for the first time before the revision Court and no such contention was raised in the Appellate Court. No doubt, in the lower appellate Court such a view has not been taken but it does not meant that there would be bar preventing the petitioner from raising such a plea. Now additional grounds have also been filed to the petition, to show that on the assurance given by the respondent only the memo was filed on 25.5.92. When once the petitioner is able to establish by recorded material that even when the charge sheet was filed, the memo was filed, would only strengthen the case of the petitioner that due to the influence of the policy onle, the guilty memo waa filed on the same day. Moreover, the advocate who had filed the memo for and on behalf of the petitioner has also filed an affidavit now to show under what circumstances the memo was filed on the said date. If these things are taken together, it will lead to the irresistible conclusion that because of plea bargaining only, such a memo was filed and, as 13 such, it is a violation of Article 21 of the Constitution. The present contention of the respondent that such a plea was not taken in the appellate Court cannot be given much weight. Considering the facts and circumstances of the case it has been established by record that even on the date of the filing of the charge sheet, the guilty memo was filed.
6. The learned counsel for the petitioner also relied on Thippeswamy's, AIR 1983 SC 747 :
1983 Cri LJ 1271 (supra) and also State of Karnataka v. Nagaraja, 1997 Cri LJ 696 (Kant) in support of his contention that "if the party is able to establish that due to plea of bargaining only, guilty memo was filed, the conviction and sentence imposed on the party is liable to be set aside and opportunity has to be given to defend the case and ultimately the Court can dispose the case on merit." The aforesaid decisions are applicable to the facts on hand. Considering the fact that the petitioner is involved in a grave crime and minimum punishment is also prescribed, it is just and necessary that an opportunity has to be given to the petitioner to defend the case and the conviction and sentence are liable to be set aside.
7. In the result, the revision is allowed and the conviction and sentence imposed on the petitioner by both the Courts below are set aside and the matter is remitted back to the trial Court with a direction to restore the case to its file and record the plea of the accused again and dispose the case on merits in accordance with law, within a period of two months from the date of receipt of the records. The petitioner is also directed to appear before the trial Court on 13.7.1998."
In Jagdish Singh v. State of H.P. ,1998(2) CLJ(H.P.) 162 it was held: 14
"11. Chapter XX of the Code of Criminal Procedure comprising of Sections 251 to 259, prescribes the procedure for the trial of summons cases. A combined reading of Sections 251, 252 and 153, would show that in all cases in which the conviction is not recorded on the plea of guilty by an accused, the Magistrate is bound to hear the prosecution and take all such evidence as may be produced in support of its case. He is equally bound to hear the accused and to take all evidence which he may produce in his defence by virtue of Section 254(1). The procedure and form of trial prescribed is of mandatory nature. In the present case, a perusal of the record shows that while sentencing the two appellants under Section 344, Code of Criminal Procedure, the learned Special Judge has failed to follow the prescribed procedure laid down under the law. The learned Special Judge, without recording any evidence of the prosecution and without affording any opportunity to the appellants to lead defence, if any, has proceeded to convict and sentence the appellants merely after recording their plea. Even in such plea, neither of the two appellants pleaded guilty. They specifically pleaded not guilty to the accusations levelled against them."
In K.S. Gurung v. Ramananda Prasad, 2001 Cri.L.J. 3072 (Sikkim)(DB) it was held:
"It appears that the accused pleaded guilty on that date under the impression that sentence of imprisonment would be till the rising of the Court. The order of sentence being in contravention of the statutory provision, the order is illegal and we are of the view that the accused persons pleaded 15 guilty under the impression that they would suffer imprisonment only till the rising of Court, and therefore, they should have an opportunity to contest the case.
2. In the result, the revision is allowed, the impugned order is set aside and the matter is remanded to the Chief Judicial Magistrate, East and North who shall proceed with the trial, according to law. The accused shall appear before the Chief Judicial Magistrate, East and North on 25th September, 2000.
Petition allowed."
In view of the above case law, the settled legal position is that for serious matters despite plea of guilt the accused should not be convicted and trial court should insist for evidence. In the present case, the petitioner is alleged to be a sitting MLA in Delhi Legislative Assembly, if the repercussions of the plea of guilt is so serious that it will put the polical career of the petitioner at stake to fight future elections or otherwise the learned trial court should not have convicted the petitioner, even if, she had voluntarily pleaded guilty.
In view of the above discussion I hold that learned Metropolitan Magistrate acted with material irregularity not only in switching over from summon trial procedure to summary trial procedure and then convicting the petitioner in this serious case on the alleged plea of guilt in summary trial register. The impugned order dated 17/12/09 and procedure followed in 16 the summary trial register in recording plea of guilt of the petitioner by learned trial court are set aside so also the order of conviction, admonition and direction of payment of cost by the petitioner, referred before. The learned Metropolitan Magistrate shall direct the refund of Rs. 2,000/- deposited by the petitioner as the cost, to the petitioner. Since the matter is pending for the last more than six years, the learned trial court shall expedite the summon trial procedure by fixing the case for recording further evidence and shall endeavour to expeditiously conclude the evidence and to decide the case by following summons trial procedure possibly within a period of 6 months from 20/01/2010. The petitioner shall appear before learned trial court on 20/01/2010 at 10.00 AM and the learned trial court shall fix the matter for prosecution evidence and shall proceed further in accordance with law. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open
Court on 14/01/10 (S. K. SARVARIA)
Additional Sessions Judge:01/South
Patiala House Courts/ New Delhi