Judgment Petitioners are charge-sheeted for an offence under Sec.292-A, Indian Penal Code, before the Judicial Second Class Magistrate, Kumbakonam, in C.C.No.293 of 1985. The allegation against them was that at 11.15 P.M. on 313.1985 at the Vijayalakshmi Cinema Theatre, they exhibited a grossly indecent picture. The first petitioner appears to be the operator of the theatre, and the other two were found in the projector room during the exhibition of the film. The petitioners were arrested by the Inspector of Police, Kumbakonam, on the same night and produced on 1.4.1985, while they were still in his custody, before the Judicial Second Class Magistrate, Kumbakonam. As soon as the accused were produced before him along with the charge-sheet, the trial Magistrate, in exercise of his powers under Sec.260, Criminal Procedure Code, thought it fit that the case must be tried as a Calendar Case, and cannot be tried summarily. Soon thereafter, it is seen from the records that all the three petitioners had filed a joint memorandum before the trial Magistrate which, translated into English reads as follows: “The case has been filed against us by the Kumbakonam North Police. We admit the case against us. We bow down and pray that the case may be taken on file and disposed of today itself. Since we are all first offenders, we respectfully plead for a lenient sentence.” This petition has been allowed by the trial Magistrate on the same day, which further led to his questioning each of the accused, under Sec.251, Crl.P.C. It is better to extract the question framed for the answer of each of the accused, by translating it into English: “On 31.3.1985 at 11.15 P.M., at Vijayalakshmi Theatre, situated in Besant Road, Kumbakonam, you had exhibited an obscene picture, grossly indecent, and sufficient to induce prurient interest, punishable under Sec.292-A, I.P.C., and hence show cause why you should not be punished.” Each of the petitioners has answered ‘it is true’. Thereafter, the trial Magistrate, accepting the plea of the petitioners, holding then guilty, convicted each of them for an offence under Sec.292-A, I.P.C. and sentenced them to pay a fine of Rs.125 each, in default to undergo R.I. for 30 days. It appears from the order of the trial Magistrate that the case records have been furnished to the petitioner, though the records do not indicate acknowledgement from them. It appears from the order of the trial Magistrate that the case records have been furnished to the petitioner, though the records do not indicate acknowledgement from them. It can be taken that whatever records had been available, were furnished by the trial Magistrate to the petitioners. It is not in dispute that records available them had not been furnished to the petitioners. 2. The aggrieved petitioners filed Criminal Appeal No.12 of 1985 before the Chief Judicial Magistrate, Kumbakonam, challenging their conviction and sentence, on the ground that their plea was not voluntary, and it was due to coercion. After elaborate discussion; the appellate Judge found that the trial Magistrate had acted on 1.4.1985 itself only on the request of the petitioners, who wanted to ‘plead guilty’ and, therefore, there was no legal impediment for the trial Magistrate having recorded their convictions, on the day subsequent to the arrest of the petitioners. In that view, the appeal was dismissed. The correctness of the conviction and sentence imposed on each of the petitioners, by the trial Magistrate and confirmed by the appellate Court is challenged in this revision petition. 3. Mr.S.Shanmughavelayutham, learned counsel appearing for the petitioners, contend that the petitioners had been produced before the trial Magistrate on the very next day after their arrest, when they were still in police custody, without affording them any opportunity to obtain either legal advice or have sufficient time to consider and decide about the course of action to be taken on the allegations made against them by the prosecution. He would also challenge that the plea recorded by the trial Magistrate cannot be taken to be a voluntary admission or guilt, in view of the question that had been framed which directs the accused to show cause why they should not be punished, was not in terms of Sec.251, Crl.P.C. He would contend that prejudice to the petitioners was patent and conviction and sentence imposed on them, have to be necessarily set aside. 4. I have heard Mr.A.S. Chakravarthi, learned Government Advocate, on all these contentions. He would submit that the petitioners themselves had chosen this course of action and, as such, there was no infirmity, in the trial Court having accepted their plea and finding them guilty as charged. 4. I have heard Mr.A.S. Chakravarthi, learned Government Advocate, on all these contentions. He would submit that the petitioners themselves had chosen this course of action and, as such, there was no infirmity, in the trial Court having accepted their plea and finding them guilty as charged. He would further contend that the prejudice alleged to have been caused to the petitioners may, in each case, have to be decided on the peculiar circumstances available, and cannot be made an inviolable rule, in all cases of recording of the plea of the accused on the date of their production in Court. 5. Let me now consider the rival contentions put forth by either counsel to substantiate their point of view. It cannot be disputed that the fundamental principle underlying Criminal Jurisprudence is that ‘justice must not only be done’, but must be seen to be done. ‘Every accused will have to be dealt with in accordance with the due process of law. That the accused must have a fair trial is a constitutional mandate. The concept of fair trial includes the furnishing of the documents relied on by the prosecution to prove the charges against the accused and also afford them a reasonable opportunity to put forth their defence in the process of which they could challenge the evidence sought to be put forth against them by the prosecution. The defence the accused may put forth may necessarily have to be thought of in an atmosphere free from custody, for it is not uncommon that the accused in custody have been either tutored or lulled into pleading guilty for some reason or other. This is the stage when the accused do not have an opportunity to either have legal advice or advice of well wishers before they could weigh the pros and cons of the allegations made against them and decide the course of action they may have to take during trial. That “plea bargaining does exist” has been taken judicial notice by various Courts, including the apex Court, and if such “plea bargaining” or a plea which cannot be readily accepted as voluntary is feasible, on the stated facts there will be no difficulty in holding that the procedure adopted in recording a conviction on the accused, cannot be termed as reasonable, fair and just. As observed by the Supreme Court in Thippeswamy v. State of Karnataka, (1983)1 S.C.C. 194 : 1983 S.C.C. (Crl.) 160: 1983 Crl.L.J. 1271: A.I.R. 1983 S.C. 747, “it will be clearly violative of Art.21 of the Constitution to induce or lead an accused to plead .guilty under a promise or assurance that he would be left off lightly.” 6. It is in this background that we have to take into consideration the effect of the plea of the accused in this prosecution, when they were arrested late on the night of 31.3.1985 and produced before the Magistrate from police custody on the morning of 1.4.1985, it is apparent that they had no opportunity to seek legal advice or even ponder over the charge that was to be made against them. It is not as though the petitioners had, through an advocate, filed the petition pleading guilty. It is a petition signed by the three accused and presented to Court directly, on which the endorsement of the Magistrate is found as “allowed”. The very contents of the petition detailing the particular prosecuting agency and praying for a lenient sentence in the process of admitting the offence savours the possibility of an induced or coerced plea. That a conviction under Sec.292-A, I.P.C., may have farreaching consequences in respect of running of the theatre itself, cannot also be easily brushed aside. In cases where the accused are produced, from police custody, if the object of a fair reasonable and just trial is the mandate of law, one should expect that the accused are given sufficient time, after the records are handed over to them and before they can make up their mind to answer a plea, which will have to necessarily follow, be-fore the commencement of the trial. There must be a time gap between the furnishing of the records and the questioning of the accused, which time gap may depend on the facts and circumstances of each case, and a rigid formula cannot be laid down for universal application. This time lag is all the more necessary when the accused are sought to be produced from police custody, before the trial Court. This time lag is all the more necessary when the accused are sought to be produced from police custody, before the trial Court. In arriving at the time required before the plea is recorded, the nature of the offence, the volume of the records, the opportunity for the accused to get legal advice or the time required to ponder over the pros and cons of the matter will all be essential, though the circumstances narrated cannot be said to be an exhaustive catalogue of circumstances which may weigh consideration. 7. On facts, this case necessarily needs further probe in view of the nature of the questioning made by the trial Magistrate. Under the 1898 Code, the old Sec.242, Crl.P.C, governed the procedure in summons cases. The old Section reads as follows: “When 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 if he has any cause to show why he should not be convicted”; but it shall not be necessary to frame a formal charge." When the 1973 Code was ushered in, in Sec.251, Crl.P.C., which governs the trial of summons cases, there is a positive change in the wording. It is better to extract Sec.251, Crl.P.C. which reads as hereunder: "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." 8. In both the old and new Code, there is no need to frame a formal charge. However, the sum and substance of the accusation is to be stated to the accused. In the old Code, it was feasible to question the accused as to why he should not be converted, but such a course is not open in the new Code, where the accused is to be asked whether he pleads guilty or has any defence to make. The object with which the change of words had been thought of in the trial of summons cases regarding the nature of questioning, is not far to seek. The object with which the change of words had been thought of in the trial of summons cases regarding the nature of questioning, is not far to seek. It is possible for a person, when questioned under the old Code, to comprehend that he had to show cause for non conviction, and probably cannot allow the prosecution to establish the case against him beyond doubt The questioning in this case is rather strange, for, the accused have been asked to show cause whey should not be punished. Punishing the accused can arise only after they are found guilty. The questioning under Sec.251, Crl.P.C., can apply go to the extent of asking the accused as to whether they plead guilty or have any defence to make, but cannot make them feel that conviction is preconceived and they have to answer only about the sentence to be improved. Such an impression is feasible from the nature of a question framed by the trial Magistrate, which cannot be outright overlooked, since in my view, prejudice to the accused is writ large, in the very questioning itself. 9. One other circumstance which may also have to be noticed is that the reply, "it is true" may probably indicate that in fact, a picture was exhibited in the theatre on that particular night. The obscene nature of it or otherwise may still have to be established by the prosecution. The answer "it is true" cannot be taken to be admission of the offence under Sec.292-A, I.P.C., at least prima facie. On the totality of facts, I am satisfied that the petitioners had not been afforded sufficient opportunity to acquaint themselves as to what the prosecution case against them was, or understand the same, take legal advice and prepare themselves either to claim a trial to defend themselves or take a decision to plead ‘guilty’. The acceptance of the plea of guilt by the trial Magistrate, is not in consonance with law and necessarily the conviction and sentence on the petitioners will have to be aside. 10. However, setting aside of the conviction and sentence imposed on the petitioners does not terminate the proceedings against them, since the violation is one of procedure and necessarily a retrial has to be ordered to furnish them with sufficient opportunity to decide their future course of action, in the de novo trial. 10. However, setting aside of the conviction and sentence imposed on the petitioners does not terminate the proceedings against them, since the violation is one of procedure and necessarily a retrial has to be ordered to furnish them with sufficient opportunity to decide their future course of action, in the de novo trial. The matter is remitted to the trial Magistrate, who will take up the case on file and dispose it off in accordance with law as early as possible, by giving this Calendar Case top priority, in view of the offence having been committed in 1985. This revision is allowed, with the above observations.