Judgment :- The Additional Sessions Judge, Quilon allowed an appeal against the conviction of the respondent for an offence under S.55(g) of the Abkari Act setting aside the conviction and sentence and remanding the case to the trial court for fresh disposal. The conviction by the trial court was based upon a plea of guilty entered by the accused. The learned Sessions Judge found that the accused did not plead guilty voluntarily. In that view the conviction was found liable to be set aside. This is attacked in this revision by the State. 2. Before I go into the merits of the case it may be necessary to observe that there is some confusion in the minds of the parties as to whether the learned Sessions Judge exercised appellate or revisional power in setting aside the conviction and sentence. The State has evidently treated the case as one where the Sessions Judge had invoked his revisional power in making the impugned decision. There was a contention for the State before the learned judge that the appeal should not be entertained because of the bar of S.375 of the Code of Crl. Procedure. Evidently to meet this, counsel for the accused submitted in that court that at any rate the facts were such as to justify invoking the revisional power of that court and therefore even if not entertainable: as an appeal the grievance of the appellant could be heard as if he was invoking the revisional power. The court found that this could be done. But that by itself need not be taken as the court's order converting the appeal into a revision. I do not find any order in the judgment of the learned judge treating the case as one falling under S.397 of the Code. He was only remarking in answer to the contention of the State before him that as pointed out by the appellant it would be possible to entertain the challenge to the judgment of the trial Magistrate even as a revisional court. The appeal was not re-numbered as a revision nor was it directed to be re-numbered. In these circumstances I must take it that the learned judge disposed of the appeal without converting it in to a revision. 3. The appeal was not re-numbered as a revision nor was it directed to be re-numbered. In these circumstances I must take it that the learned judge disposed of the appeal without converting it in to a revision. 3. The answer to the controversy as to whether the appeal was maintainable would in a way also answer the contention of the parties on the merits. The case of the accused-respondent in this revision is that there was no genuine plea of guilty and therefore S.375 would not apply. In that event the appeal would be maintainable. If that be so, for the very same reason, - that there was no plea of guilty - the order has to be set aside as found by the learned Sessions Judge. Hence, if once the appeal is held to be maintainable despite S.375 of the Code it would automatically follow that the appellant before the learned Sessions judge was entitled to relief which was granted to him by the learned judge. 4. S.375 of the Code, provides that notwithstanding any thing contained in S.374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal if the conviction is by a Magistrate of the first or second class, except as to the extent or legality of the sentence. The challenge before the learned judge was not to the legality or extent of the sentence but to the conviction. S.375 corresponds to S.412 of the Old Code and in so far as it is material for the purpose here there is no difference between the two Sections. Therefore the decisions which have interpreted S.412 of the old Code may be of relevance in considering the case before me. 5. S.251 of the Code provides that 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. It is agreed by both sides that it is S.251 that is applicable to the facts of the case here. It is agreed by both sides that it is S.251 that is applicable to the facts of the case here. S.252 provides that 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. Evidently the conviction of an accused on a plea of guilty is not automatic and does not follow merely because such plea is made. Despite the plea the court has to judicially consider whether the conviction would be warranted and that is where there is scope for exercise of the discretion of the Magistrate. Various factors may have bearing on whether, despite the plea by the accused that he is guilty, he has to be convicted or whether the case has to be tried and disposed of on the evidence that may be taken at the trial. The duty cast upon a court to decide whether the plea by the accused that he is guilty should be the sole basis for conviction is a solemn duty, the exercise of which calls for due care and caution. If the Magistrate has reason to feel that the plea entered by the accused is not voluntary he has to probe further into the matter and he is to act upon such plea only if he is fully convinced that the accused pleaded guilty of his own free will. Equally relevant is the case where a court has reason to feel that the accused may not have understood the charge fully, the facts as well as the inference drawn from the facts stated in the charge. It is possible that the accused may not be properly advised because of the situation in which he is placed. May be he entered plea of guilty assuming that the consequences may not be serious. In short, except in a case where the court feels that the plea of guilty made by the accused was made under circumstances where he was well advised as to what he was pleading and was well aware of the consequences of his plea, the court may not be justified in acting upon such plea and convicting the accused without may evidence, 6. It is only when there is a genuine plea of guilty made freely and voluntarily that the bar under S.375 of the Code would apply. It is only when there is a genuine plea of guilty made freely and voluntarily that the bar under S.375 of the Code would apply. There may be instances where the facts averred or pleaded by the prosecution do not amount to an offence. Pleading by the accused that he is guilty does not preclude by from filing an appeal against the conviction. That is because his plea may amount only to the admission of facts averred by the prosecution which, even if true, may not be sufficient to constitute an offence. Reference may be made in this context to the decision of the High Court of Madras in In re. U. R. Ramaswami, AIR. 1954 Mad. 1020. In that case the accused represented himself to be a merchant dealing in broken glass pieces and obtained an advance of Rs. 300/-from the complainant in two instalments agreeing to supply certain quantity of glass pieces to him within a fixed period. The glass pieces were not supplied within the stipulated period and when he was pressed by the complainant the accused gave a cheque to the complainant which was dishonoured the there was no balance to the credit of the accused at that time. On these facts a charge under S.409 of the IPC. was framed and the accused pleaded guilty to that charge. The Magistrate found that there was no intention on the part of the accused to cheat or defraud at the outset and that it was apparently due to circumstances beyond his control that the accuse could not act according to the terms of the contract. The Magistrate also found that the issue of cheque was not an act of fraud but really was proof of good faith. But nevertheless the Magistrate was of the view that an offence under S.409 was made out because the accused did not use the money for the purpose for which it was intended, namely, to be used by him in his capacity as merchant and so accepting the plea of guilty, the Magistrate convicted the accused. The appellate court held that the plea of guilty did not bar the appeal from being entertained That was because if the question be one of admission of all the facts and the facts pleaded are not disputed, even then the accused would not be guilty. The appellate court held that the plea of guilty did not bar the appeal from being entertained That was because if the question be one of admission of all the facts and the facts pleaded are not disputed, even then the accused would not be guilty. When a person advances money for purchase it is not an entrustment for a specific purpose The money so advanced becomes the money of the person to whom it was so advanced, and he is free to utilise it otherwise than for his business. The view to the contrary taken by the learned Magistrate was found to be unsustainable. Plea of guilty did not preclude a challenge to the inference drawn. 7. In In re Manikkam Pillai,19 Mad Q. 271 referred to in the Madras decision just adverted to the accused sought to get himself reinstated in the post of karnam by the production of a certificate of having passed a certain examination. The certificate, according to him, referred to him but in fact referred to another man of the 'jama name. Though the accused pleaded guilty to the charge and was convicted under Ss.419 and 511 the appellate court found that the elements for the offence under S.419 bad not been made out on the facts indicated and therefore there would be no bar in entertaining the appeal. So is the case with the decision in Emperor v. Sat Narain, AIR. 1931 All. 265. Reference is made in the same Madras decision to the case in In re Gurrapa Marigadu, 2 Weir Crl. 336 where the accused was convicted of culpable homicide not amounting to murder on his plea of guilty His admission was understood to be of the physical acts attributed to him, namely, that he beat his deceased wife and that she died. But it was open to question whether he admitted the existence of any connection between the beating and the death or of any intention to cause such bodily injury as was likely to cause death. The court held that the conviction on the plea of guilty could not be sustained and the accused must be retried. The case in Emperor v. Sat Narain, AIR. 1931 All. The court held that the conviction on the plea of guilty could not be sustained and the accused must be retried. The case in Emperor v. Sat Narain, AIR. 1931 All. 265 was one where the plea of guilty was made under a mis-conception of one's right in the property and in such a case too the bar of S.412 of the Code was held not to apply. In the case before Chaudhuri J. in Emperor v. Akub Alt AIR. 1920 Cal. 522 the accused pleaded guilty in a statement submitted by them while at the same time stating that the accused were acting only as agents. In an appeal against the conviction the appellate court found that if they were agents they would not be criminally liable in law. Necessarily therefore the plea of guilty did not preclude an appeal. The scope of bar under S.412 was examined by the court of the judicial Commissioner, Manipur in the decision reported in Haobijam v. Heisnam, 1957 Crl. Q 144. That the plea must be considered with caution is the key-note of the said decision. 8. In the case before me the accused had been arrested by the Excise Officers and he was in their custody at the time he was produced in court. Copy of the charge sheet had not been given to him. He was only asked whether he was admitting to an offence of keeping some wash in three tin containers of capacity of 18 litres and thereupon he pleaded guilty. Neither the charge nor the particulars of the charge were stated to him. The very relevant part of the charge that the wash was recovered from his residence was not put to him, the quantity of wash recovered was not mentioned, who recovered it was not mentioned and even the date on which it was said to have been recovered was not mentioned oq the accused entering the plea of guilty he was convicted and though he was a first offender he was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs 1000/-. This of course is the minimum sentence. Possibly the accused who was produced from the custody of the Excise Officers assumed that if he admitted the offence he would be let away with a light sentence. This of course is the minimum sentence. Possibly the accused who was produced from the custody of the Excise Officers assumed that if he admitted the offence he would be let away with a light sentence. It is pertinent to note that at the time he pleaded guilty he did not have the assistance of a counsel. In fact he had no assistance of any person to enlighten him of the consequences of pleading guilty There is no case that the Magistrate made known to him such consequences. That in such circumstances the assistance of a counsel is relevant is indicated by the decision of this Court in State v. Raghavan, AIR. 1959 Ker 248. In that case the fact that the accused had the as is factor of a lawyer from the very beginning and it was under legal advice that he pleaded guilty to a charge which expressly mentioned that the offence alleged against him was one falling under S.23 • () read with S.42 (!) of the Motor Vehicles Act was noticed as a relevant circumstance. Immediately on the sentence being pronounced by the court in this case the accused moved the court by a petition explaining the circumstances under which he made the plea of guilty He referred in his petition to his custody with the Excise Officers, Hs production in court at their instance, the fear of consequences if ht did not obey their direction to plead guilty, the ignorance as to the nature of the charge and the consequences. He moved for suspension of the operation of sent acj. The learned Sessions Judge A was prepared to infer from these circumstances that the element of voluntaries was absent in the plea made by the accused. I would respectfully agree with the harmed Sessions Judges in this and in fact I would go further and stats that the requirement of making the accused aware of the particulars of the charge against him has not been met in this case A cursory statement of the nature of the charge which the accused was called upon to answer and in response to which the accused pleaded guilty i* what we find from the records of the case. In these circumstances the court had a duty >o exercise its discretion it should not have exercised such discretion to enter conviction based upon the plea of 'guilty. In these circumstances the court had a duty >o exercise its discretion it should not have exercised such discretion to enter conviction based upon the plea of 'guilty. Since there was no genuine plea of guilty the bar under S.375 of the Code of Criminal Procedure does not operate and the appeal was rightly entertained by the learned Sessions Judge. If the plea of guilty was not to be the basis of conviction the course adopted by 'he learned Sessions Judge is the proper course. Hence I sustain the remit of the case for a fresh trial after setting aside the conviction and sentence. In the circumstances the revision petition of the State tails and is dismissed.