Madras High Court
P.Saravanan vs State Represented By on 13 July, 2016
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.07.2016 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS Crl.R.C.(MD)No.354 of 2016 P.Saravanan ... Petitioner Vs. State represented by the Inspector of Police, Kumbakonam West Police Station, Kumbakonam, Thanjavur District. (Crime No.305/2012) ... Respondent Prayer: Criminal Revision Petition is filed under Sections 397 r/w. 401 of Cr.P.C., to call for the records and set aside the judgment dated 10.07.2012 passed in S.T.C.No.2174 of 2012 on the file of the learned Judicial Magistrate, Kumbakonam, Thanjavur District. !For Petitioner : Mr.A.Thiruvadi Kumar ^For Respondent : Mrs.S.Prabha Govt. Advocate (Crl.side) :O R D E R
In this Revision Petition, the accused in S.T.C.No.2174 of 2012 on the file of the learned Judicial Magistrate, Kumbakonam, Thanjavur District challenges his conviction and sentence awarded to him. The accused belongs to a place at Kumbakonam in Thanjavur District. It is alleged that on 09.07.2012, at about 6.00 p.m., near the Kumbakonam Government Bus Depot, to the annoyance of public, he scolded in obscene language. R.Sudha, Sub Inspector of Police, Kumbakonam West Post Station brought him to the police station. She gave a complaint. She is the complainant. She herself investigated the case. She had recorded statement under Section 161 of Cr.P.C. Kumar and C.Machendran, who are the then Special Sub-Inspector of Police concluding her investigation, she filed a final report under Section 173(2) of Cr.P.C. to the effect that he appears to have committed an offence under Section 294(b) of Cr.P.C. It is pertinent to note that the revision petitioner was arrested. He was released on station bail. The learned Magistrate took cognizance, on the final report, on 10.07.2012. Mr.N.Sundararajan Associates filed a Memo of appearance through them. The revision petitioner filed an admission petition admitting the offence. It is pertinent to note that the admission petition is in a printed form. It was filled by the learned Advocate and it was also signed by the revision petitioner.
2. As directed, the entire case records in S.T.C.No.2174 of 2012 has been submitted by the learned Judicial Magistrate, Kumbakonam and it was perused.
3. As per the S.T.C. extracts, on the same day, the accused seems to have been questioned and he stated to have voluntarily admitted the offence and the learned Judge convicted him under Section 294(b) of I.P.C. and sentenced to pay a fine of Rs.300/-, in default to undergo one week simple imprisonment.
4. The learned counsel for the revision petitioner would contend that in the instant case, the mandatory provisions of Sections 251 and 252 in chapter 20 of the Code of Criminal Procedure dealing with the Trial of Summons Cases has been not followed. The provisions are mandatory, it was not observed before convicting the accused. Even, if an accused admit the offence, that will not discussed with complying the said mandatory provisions of Law in Sections 251 and 252 of Cr.P.C. Further, as per Section 251 of Cr.P.C., the learned Magistrate has to put the accused about the details of the accusation in the language known to the accused and he must record the plea of the accused as nearly as possible in the words used by the accused. However, in the instant case, actually, the plea has not been recorded. There is no records to show that the plea has been put to the accused and no statement regarding the plea of the accused has also been recorded in this case. Especially, as per Section 375 of Cr.P.C., as there is no appeal as against a case, in which the accused has pleaded guilty and in a criminal matter, the right of the accused is involved which leads to many evil consequences observing of the mandatory provisions of Section 251 of Cr.P.C. is very important. The learned counsel for the revision petitioner submitted that violating of the same will result in the entire criminal procedure code vitiated.
5. In support of his submission, he has cited the following decisions:
(i) Mahant Kaushalya Das v. State of Madras reported in AIR 1966 SC 22
(ii) State of Sikkim v. Futi Sherpani reported in 1980 Crl.L.J. 114
(iii) Purusottam Sabra and others v. State of Orissa reported in 1992 Crl.L.J. 1417
(iv) State of Maharashtra v. Sukhdev Singh reported in (1992) SCC (Cri) 705
(v)Sashidhara Kurup v. Union of India and others reported in 1994 Crl.L.J. 375
(vi) C.Subbarayudu v. State of A.P. reported in 1996 Crl.L.J. 1472
(vii) B.Rajanna v. State of Karnataka reported in 1996 Crl.L.J. 1820
(viii) Sundaram v. State represented by Sub Inspector of Police, Adambakkam, Madras reported in 1998 (I) CTC 686 (viiii) S.Sundararaj v. State represented by the Sub Inspector of Police, Pattibaram Police Station, Ambattur, Chennai reported in 2012 (3) MWN (Cr.) 149
5. On the other hand, the learned Government Advocate (Crl.side) would submit that the revision petitioner voluntarily admitted the offence. Then, he was also having the assistance of a lawyer. In such circumstances, he is not under duress. Naturally, when he had the legal assistance, his admission is voluntary. In his discretion, the learned Magistrate admitted the plea of guilty. In such circumstances, the provisions of Section 251 of Cr.P.C., has been complied with.
6. The learned Government Advocate (Crl.side) further submitted that the extracts of the Summary Trial Register also known as S.T.C. Register, compliance of requirement of Section 251 of Cr.P.C.
7. I have carefully considered the rival submissions and perused the entire records received from the learned Judicial Magistrate, Kumbakonam and also gone through the decisions cited by the learned counsel for the revision petitioner.
8. This case presents certain important questions relating to conducting of the trial in a summons case and recording of the plea of the accused and passing a judgments thereon. It is important to note that the Magistrates are dealing with life and liberty of a persons, the rights of the accused is very important. A conviction by a criminal Court leads to various unpleasent consequences. Not only the name of the person, but a whole family is involved in a criminal case. Therefore, a fair trial must be the rights of the accused is also a facet of human right. This has been emphasised the Universal Declaration of Human Rights, 1948. It has its repercussion in the republic in Constitution of India 1950. Further, the International Code of Civil and Political rights, reassessed and repatriated the rights of the accused in the Universal Declaration of human rights. The vibrant human rights has been failed very much and exasperated .. celebrated the judgment of the Honourable Supreme Court ............vs. Menaga Gandhi. This has been stated to bring out the importance of the rights of the accused and the consequences of a conviction of a criminal Court. Even Article 21 of the Constitution of India, on the one hand, while authorising the life and liberty of a person can be abridged or taken away. It has clearly declared that it must be as per the procedure established by Law. It is true elementary that to punish a person, a criminal Court has to follow the provisions enshrined in the Code of Criminal Procedure. If in a case, the provisions prescribed under the Code of Criminal Procedure is not followed and the conviction is not recorded by the Court, it will image against the principles laid down by the Honourable Supreme Court in the Menaga Gandhi Case. The conviction would not be recorded in a fair trial. Menaga Gandhi case, principles viz., the procedure adopted by the Court must be fair, reasonable, not arbitrary is universal in nature, in his application, more particularly, they have become magnagartha in the Indian Human Rights jurisprudence.
9. The plea bargaining is widely prevalent and accepted in Western Countries. But, in Indian Criminal System as in the Western Countries, it was not so accepted. But, there are provisions in the Criminal Procedure Code possibility of fleasing plea bargaining cannot also be ruled out.
10. Of course, to some extent, under the Indian Criminal Legal System, recording of conviction based on plea of the accused is accepted. Generally, the criminal trials, in our system has 3 major classifications. They were classified depending upon the severity of the punishment prescribed for the punishment. They are summons cases, warrant cases and sessions cases. In all these type of cases, there is a provision for recording a conviction based on the plea of the accused. In a sessions case, under Section 229 and in a warrant case, under Section 241, the trial Judge can record a conviction, based on the plea and otherwise admission of the guilty alleged against him.
But if we see the ... under Sections 229 and 241, it is not that once an accused declared that he has committed the offence, in other words, he has admitted the offence that the Judge is bound to accept it. The framers of the Code was very careful that they have given discretion to the trial Court to verify the admissions whether they are voluntary, they are free or they were obtained under torture and duress. In Sections 229 and 241 used of the word is in his discretion, the trial Court may accept the admission or may refused to accept the admission and directs the prosecution to produce the accused. It is pertinent to note that the recording of the plea of guilty both in a warrant case and in a sessions case, under Section 241, under Section 229 of Cr.P.C., as the case may be, case only often, the charge has been read out to the accused. The charge must be specific, unambiguous very clear and the admission by the accused must be unambiguous and unqualified uncondition. In this connection, it is relevant to extract hereunder the observations of the Honourable Supreme Court made in State of Maharashtra v. Sukhdev Singh reported in 1992 SCC (Cri) 705 at special page 749, at para ? 52.
?52. Even on first principle we see no reason why the Court could not act on tie admission or confession made by the accused in the course of the trial or in his statement recorded underSection 313 of the Code. Under Section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed inthe Code for the trial before a Court of Session, albeit subject to the other provisions of the Act. The procedure for the trial of Session cases is outlined in Chapter XVIII of the Code. According to the procedure provided in that Chapter after the case is opened as required by Section 226, if, upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for reasons to be recorded. If, however, the Judge does not see reason to discharge the accused he is required to frame in writing a charge against the accused as required by Section 228 of the Code. Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tam amounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the phase to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of| the witnesses i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts. on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under Section 313 of the Code. In the present case, besides giving written confessional statements both accused No. 1 and accused No. 5 admitted to have been involved in the commission of murder of General Vaidya. We have already pointed out earlier that both the accused have unmistakably, unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya. It is indeed true that accused No. 1 did not name accused No. 5 as the driver of the motor cycle, perhaps he desired to keep him out, but accused No. 5 has himself admitted that he was driving the motor cycle with accused No. 1 on the pillion seat and to facilitate the Crime he had brought the motor cycle in line with the Maruti car so that accused No. 1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No. 1 and accused No. 5 were acting in conceit, they had a common intention to kill General Vaidya and in furtherance of that intention accused No. 1 fired the fatal shots. We are, therefore, satisfied that the learned trial Judge was justified in holding that accused No. 1 was guilty under Section 302 and accused No.5 was guilty under Section 302/34, IPC. ?
11. It is very evident that even under Sections 229 and 241 of Cr.P.C., only after reading of the charges containing the necessary elements or ingredients of the offences in the language known to the accused and the trial Judge after satisfying himself that he has understood the charges/accusation made against him. Then only, he can accept the plea of the accused either under Section 229 or 241 of Cr.P.C. Therefore, it is clear that it is incumbent upon the trial Court to put the charges/allegations to the accused in unambiguous language. This is one of the right of the accused. This is also the matter of principles of natural justice. It is also here made condemn. It is another form of the Rule of (adiya attam pattam) year before punished.
12. Section 251 of Cr.P.C. is analogies in-substance Sections 229 and 241 of Cr.P.C. Section 251, in chapter 20 of the Cr.P.C., deals with recording the plea of the accused in a summons case. Before the present Code of Criminal Procedure of 1973, he had the previous code known as old code. It is of the year 1898. In the old Code, in Section 243, there is a provision as in Section 251 of Cr.P.C., to record the plea of the accused in the summons case, but under the old Code in Section 243, the language of the employ is such that even at the stage of recording the plea, the code has pre- determined the issue because the Judge while read out the accusation, must also asked the accused why he was not be punished. However, this difficulty, has been obviated under the new Code of Criminal Procedure. It is profitable to notice hereunder Sections 251 and 252 of Cr.P.C.
?51. Substance of accusation to be stated. When in a summons- case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
252. Conviction on plea of guilty. 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.?
13. Now, a comparative analysis of the provisions of Section 229 (Sessions Case), 241(Warrant Case) and Section 251(Summons Case) dealing with recording of plea of the accused, there is a marked , as per Section 251 of Cr.P.C., the learned trial Judge is bound to record the plea of the accused as nearly as possible in the words of the accused. However, this prayer is absent in Sections 229 and 241 of Cr.P.C. The reason being, as we have already stated, at the time when plea is to be recorded in a Sessions case under Section 229 of Cr.P.C. and in a warrant case, under Section 241, charges have been read out to the accused. However, in a summons case, under Section 251 of Cr.P.C. before recording the plea of the accused, no charges were read out with the accused. Further, it is pertinent to note that even in Section 251 of Cr.P.C., it is stated that no formal charge need be framed in a summons case. So, stating to the accused the accusation as against him in a summons case under Section 251 of Cr.P.C. become very important. It is giving an opportunity to the accused to meet the case/accusation as against him, as already stated, it is also a matter of principles of natural justice. It is also in furtherance of rights of the accused. When the accused admit the offence under Sections 251 of Cr.P.C., and under Section 252 of Cr.P.C., the Judge can accept it provided it is unqualified, unambiguous, clear cut and voluntary, otherwise, he can refused to accept the plea, he can direct the prosecution to produce the witness, because as and when an accused admit the offence under Section 251 of Cr.P.C., it is not incumbent upon the Judge to immediately accept the plea. Such a discretion has been given to the trial Court under Section 252 of Cr.P.C. One thing is clear, a reading of the provisions of Section 251 of Cr.P.C., makes it clear that the trial Judge must clearly put to the accused what the accusation as against him, what penal provision of law he is violated, what is the reasons therefor and it gives an opportunity to the accused to put forth his defence, so as to enable the trial Court to appreciate the same and to appreciate his defence in the light of the evidence adduced by the prosecution. A reading of Section 251 of Cr.P.C., will clearly shows that the requirement in Section 251 of Cr.P.C., is mandatory in nature. Not following him will make the very prosecution vitiated. In the summons case, such a strict following of the mandatory provisions of Law which are intended to protect a person, who has been prosecuted for a summons offence become very important, because as per Section 375 of Cr.P.C., no appeal will lie as against conviction recorded based on the plea of the accused. But, notwithstanding the provisions of Section 375 of Cr.P.C., if a conviction recorded and sentence awarded based on the plea of guilty made by the accused is not in accordance with Law and it is in violation of settled principles of Law and the mandatory provisions of law. Then, it is legality, proprietary, regulatory can be questioned under the concurrent revisional jurisdiction of this Court and the High Court under Sections 397 r/w. 401 of Cr.P.C. In this connection, Section 401 of Cr.P.C. may also be read. Therefore, in this case, no appeal is available to the accused vide Section 375 of Cr.P.C. rightly he is questioning the conviction and sentence recorded by the trial Court now under Section 397 of Cr.P.C.
We have seen has been laid down in the various decisions cited by the learned counsel for the petitioner.
Now, keeping what we have stated in our mind less approach the facts.......
14. We have now referred back to the facts of the case. A perusal of the entire case records received from the trial Court, the learned Magistrate has recorded the required particulars in the S.T.C. Register in para II, in vernacular language, the learned Magistrate recorded as under:
.....
15. There is no records to show that the accusation as alleged as against the revision petitioner by the Kumbakonam West Police Station has been put to the accused. There is no statement in the case records indicating that the details of the accusation as found in the final report filed by the Sub-Inspector of Police has been explained to the accused. As already stated, as per Section 251 of Cr.P.C., the trial Court is bound to put the accusation to the accused. There is nothing in the trial Court records to show that the plea of the accused has been recorded as nearly as possible in the words of the accused, of course in column No.11 of the STC register, what was stated in Vernacular Language does not show that Section 251 of Cr.P.C. has been complied with. In other words, column No.11 of the S.T.C. Register does not reveal that the details of the accusation has been made against the accused has been put to the accused and the plea of the accused given by him, in his words as nearly as possible has been recorded.
16. In such circumstances, it shall be deemed that the accused has not at all been put to the accused it could be stated that the accused has not been explained to the accusation as against him and his plea has been recorded as nearly as possible in the words of the accused. Therefore, the provisions under Section 251 of Cr.P.C. has been completely violated. Consequently, the conviction recorded under Section 252 of Cr.P.C., which has to follow the plea recorded under Section 252 of Cr.P.C. itself is be vitiated.
17. It is the matter of grave concern that the salutary provisions intended and ensuring fair trial has been completely not followed to punish a person, to slab a person with conviction by a Criminal Code is to serious the matter. At the same time, it will play a havoc in pursuing a conviction his life and it will be a black mark in his career. Therefore, the trial must be fair trial. The trial Court without following the mandatory provisions of Law certainly will not be fair trial. It will be a trial as against Law. The trial proceedings will be invalid. The product of as such a trial will not be followed in the eye of Law. To obvious this kind of difficulties and to afford reasonable opportunity to the accused and confirming the rights of the accused, the learned Magistrate should put the accusation levelled as against the accused by the prosecution in ambiguous language and also record the plea of the accused whether he plead guilty or no guilty, in which he answered the question. If the language of the Court is not known to him or he is a person having different language, which is not the Court is converson explain to him the accusation as against him with the assistance of a translator/interpreter. In such circumstances, he will have the full opportunity. In such circumstances, the opportunity of natural justice got followed and the trial will be fair trial and it will be satisfying the mandatory requirement of Section 251 of Cr.P.C. After following such a procedure under Section 251 of Cr.P.C., and if the accused plead guilty and his plea is free, voluntary, unambiguous and unqualified and recording the conviction under Section 252 of Cr.P.C. certainly will be followed. They hoped that the learned Magistrate will take a decision as a guidance while dealing with such a situation in summons cases which will go in a long way to protect the rights of the accused and also enable the prosecution to safeguard the interest of the accused.
18. In view of the foregoing reasons, this Revision Petition succeeds. The conviction recorded and the sentence awarded in S.T.C.No.2174 of 2012 by the learned Judicial Magistrate No.II, Kumbakonam dated 10.07.2012 are set aside. The fine amount already paid shall be refunded.
To
1. The Inspector of Police, Kumbakonam West Police Station, Kumbakonam, Thanjavur District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3. The Judicial Magistrate, Kumbakonam, Thanjavur District. .