Shyam Singh v. Dharam Singh — 1968 DIGILAW 143 (ALL)

JUDGMENT 1. This reference has been made by the learned II Additional Sessions Judge Pilibhit recommending that the order dated 18-8-1966 passed by a learned Judicial Magistrate releasing the opposite parties u/s 4 of the U.P. First Offenders Probation Act be set aside and the opposite parties be punished and sentenced according to law. As against the order of the learned Magistrate an application in revision was filed by Shyam Singh and it was in pursuance of that application that the learned II Addl. Sessions Judge has made the reference under consideration. The reference was admitted by a learned single judge and it was directed to be listed for disposal before a Division Bench and it is hence that the reference has been listed before us. 2. Shyam Singh the Applicant had lodged a report at Police Station Madho Tanda district Pilibhit against the opposite parties who were prosecuted and charges were framed against them Under Sections 147, 148 and Sections 323, 324 and 326 of IPC read with Section 149 of that Code. The opposite parties pleaded not guilty and claimed to be tried and the learned Magistrate recorded the statements of some of the prosecution witnesses. On the date fixed for the hearing of the remaining prosecution witnesses the opposite parties filed an application in court confessing their guilt. The learned Magistrate thereafter examined the opposite parties u/s 342 of Code of Criminal Procedure and specifically invited the attention of each one of them to the fact that they had pleaded not guilty previously and that they were liable to be convicted on the basis of the confession which they had made and each one of them in reply confessed the guilt. Thereafter the learned Magistrate convicted the opposite parties of offences with which they were charged but released each one of them on probation u/s 4 of the UP First Offenders Probation Act on execution of a personal bond in the sum of Rs. 500/- and the furnishing of one surety each in the like amount to keep peace and to be of good behaviour and to be ready to undergo such sentence as the court may award in the event of non-compliance with the order of the court. 3. 500/- and the furnishing of one surety each in the like amount to keep peace and to be of good behaviour and to be ready to undergo such sentence as the court may award in the event of non-compliance with the order of the court. 3. As against the aforesaid order the Applicant filed an application in revision on the ground that one of the offences of which the opposite parties were found guilty was u/s 326/149 of IPC which was punishable with imprisonment for life and as such the benefit of Section 4 of the U.P. First Offenders Probation Act could not have been extended to them. The learned Sessions Judge who heard the application in revision saw force in the aforesaid ground and accordingly made the reference under consideration. There was previously a conflict of judicial opinion in this Court on the question whether Section 4 of U.P. First Offenders Probation Act would be applicable to a case where the maximum punishment provided for the offence proved was life imprisonment but the controversy has been set at rest by a Full Bench decision of this Court in Bhodeo v. Jagdish Prasad 1967 AWR 584 and it has been held that Section 4 referred to above would not apply to a case in which the offence proved is punishable with life imprisonment whether as a minimum or as a maximum penalty. 4. An offence u/s 326 of IPC is punishable with imprisonment for life and as such the benefit of Section 4 referred to above could not have been extended to the opposite parties so far as the offence u/s 326/149 was concerned. 5. The Learned Counsel for the opposite party has conceded that the legal position was as stated above. He has contended that on the evidence on record the offence u/s 326/149 of IPC was not established inasmuch as the Medical Officer who had examined the injuries of the Applicant was not examined as a witness and it could not, therefore, be held that any of the injuries sustained by him was grievous. He has contended that on the evidence on record the offence u/s 326/149 of IPC was not established inasmuch as the Medical Officer who had examined the injuries of the Applicant was not examined as a witness and it could not, therefore, be held that any of the injuries sustained by him was grievous. The Learned Counsel was confronted with the confession of guilt made by each one of the opposite parties and thereat the submission made by him was that under the provisions of the Code of Criminal Procedure the learned Magistrate had no power to take into consideration the confession of guilt after the accused had pleaded not guilty and claimed to be tried and reference was made to Section 251-A of Code of Criminal Procedure and reliance was also placed upon a ruling of Gujrat High Court in Jainti Laxman v. State of Gujrat 1964 (2) Cri LJ 86. The Learned Counsel for the parties did not invite our attention to any decision either of our court or of the Supreme Court on the question under consideration and we would therefore, in the first instance, deal with the question as if it were res integra. Clause (v) of Section 251-A of Code of Criminal Procedure provides that if the accused pleads guilty the Magistrate shall record the plea and may in his discretion convict him thereon. Clause (vi) to the aforesaid section enjoins that if the accused refuses to plead or does not plead or claims to be tried the Magistrate shall fix a date for examination of witnesses. Clause (vii) enjoins that on the date so fixed the Magistrate shall proceed to take such evidence as may be produced in support of the prosecution. Clause (viii) enjoins that the accused shall then be called upon to enter upon his defence and to produce his evidence. Clauses (ix) and (x) relate to the summoning of witnesses at the instance of the accused. Clause (xi) provides for the acquittal of the accused if the Magistrate finds him not to be guilty and Clause (xii) provides that if the Magistrate does not proceed in accordance with the provisions of Sections 349 or 562 he shall if he finds the accused guilty, pass sentence upon him according to law. Clause (xiii) provides for the procedure to be followed in case an accused is charged with a previous conviction also. Clause (xiii) provides for the procedure to be followed in case an accused is charged with a previous conviction also. It, will be noticed that after the accused has pleaded not guilty the Magistrate has to record the prosecution evidence and if the accused so prays the statements of witnesses proposed to be examined on behalf of defence. The question, however, that arises is as to whether a Magistrate has to go on recording the prosecution evidence in toto even though at a stage subsequent to pleading not guilty the accused confesses his guilt voluntarily and wants the trial to conclude. We are clearly of the opinion that if the Magistrate is inclined to convict the accused on the basis of the subsequent confession of guilt it would be an abuse of the process of the court and would cause unwarranted and avoidable harassment to the accused to continue to record the entire prosecution evidence. It is to subserve the ends of justice and to have a fair and impartial trial of an accused person that criminal procedure has been codified and as already observed, we do not think that it will be in the interest of the accused if the Magistrate goes on with the trial of a case even though the accused has confessed his guilt and the Magistrate has satisfied himself by examining the accused u/s 342 Code of Criminal Procedure that the confession has been made voluntarily and the accused does not want the trial to continue. There is nothing in the Code of Criminal Procedure which places a bar on a Magistrate to convict an accused on the basis of confession of guilt made by him voluntarily subsequent to a plea of not guilty. We are, therefore, of the opinion that there is nothing illegal in the conviction of an accused on the basis of a confession of guilt made subsequent to a plea of not guilty provided of course the Magistrate is satisfied that the confession has been made voluntarily and is not the outcome of any pressure. 6. Now we advert to the case of the Gujrat High Court relied upon on behalf of the opposite parties. It appears that in that case the accused was not examined u/s 342 of Code of Criminal Procedure after the confession of guilt by him and further that the confession was not made in writing. 6. Now we advert to the case of the Gujrat High Court relied upon on behalf of the opposite parties. It appears that in that case the accused was not examined u/s 342 of Code of Criminal Procedure after the confession of guilt by him and further that the confession was not made in writing. After some evidence had been recorded the accused appears to have told the Magistrate that he was guilty which plea was accepted by the learned Magistrate and conviction w is recorded. In the instant case, as has already been noticed the confession of guilt was made in writing and thereafter each one of the opposite parties was examined u/s 342 of Code of Criminal Procedure audit warning was specifically given to him that he was liable to be convicted on the basis of the confession made and his attention was specifically drawn to the fact that previously he had pleaded not guilty. In the circumstances the learned Magistrate cannot be said to have acted illegally or to have exercised a wrong discretion in accepting the plea of guilty and convicting the opposite parties. With respect to the learned Judges who decided the case Jainti Laxman (supra) we are unable to hold that a Magistrate acts illegally in accepting a confession of guilt made by an accused voluntarily after the accused had pleaded not guilty. The confession of guilt made by the opposite parties related to the charge u/s 326/149 also and it could not be said that they were not liable to be convicted of the offence u/s 326/149 of the IPC because the injury report was not proved by the Medical Officer who had prepared the same. 7. In conclusion the reference is accepted and the order of the learned Magistrate releasing the opposite parties on probation u/s 4 of the UP First Offenders Probation Act is set aside of the opposite parties Dharam Singh and Salvendra Singh were charged with the offence u/s 147 of IPC and the remaining opposite parties namely Gur Bux Singh, Virsa Singh and Kulwant Singh were charged u/s 148 of IPC. Each of the opposite parties was further charged with the offences Under Sections 323, 324 and 326 of IPC read with Section 149 of that Code. Each of the opposite parties was further charged with the offences Under Sections 323, 324 and 326 of IPC read with Section 149 of that Code. Dharam Singh and Salvendra Singh were found guilty of the offence u/s 147 of IPC and each of the remaining opposite parties Gur Bux Singh, Virsa Singh and Kulwant Singh of the offence u/s 148 of IPO. Each of Dharam Singh and Salvendra Singh is sentenced to undergo R.I. for a period of three months for the offence u/s 147 of IPC and each of remaining opposite parties Gur Bux Singh, Virsa Singh and Kulwant Singh is sentenced to undergo R.I. for a period of six months for the offence u/s 148 of IPC. Each of the opposite parties is further sentenced to undergo R.I. for a period of three months for the offence u/s 323/149 of IPC, for a period of six months for the offence u/s 324/149 of IPC and for a period of one year for the offence u/s 326/149 of IPC. The sentences passed on the opposite parties shall run concurrently. The opposite parties shall be taken into custody forthwith to serve out the sentences awarded to each of them.