S. Prem Kumar v. S. I. of Police — 1989 DIGILAW 589 (MAD)

ORDER This case reveals a very sorry state of affairs, where the petitioner who has not appeared before the trial Court, has been convicted for an offence under Sec.75 of the Madras City Police Act and sentenced to pay a fine of Rs.200 in default to suffer rigorous imprisonment for six weeks. 2. This application has been filed invoking the inherent powers of this Court under Sec.482, Criminal Procedure Code, to call for the records in A.P.C.No.8320 of 1989 on the file of the VII Metropolitan Magistrate, George Town, Madras, and to set aside the conviction and sentence imposed on the petitioner. 3. The brief facts which will be necessary for the disposal of this petition can now be summarised. The petitioner is the proprietor of a photo studio known as “Studio Meena” situated at No.137, Broadway, Madras 108. It appears that the respondent/police used to call the petitioner often to take photographs of dead bodies, for the purposes of investigation, in several crimes. On several occasions, it appears that the petitioner refused to comply with the request of the respondent to take outdoor photographs, since he was unable to leave his shop and further such work was not remunerative. This attitude of the petitioner appears to have been resented by the respondent/police. This is the background, in which the facts which led to this prosecution, will have to be appreciated. 4. According to the affidavit filed by the petitioner, on 29.7.1989, a person aged about 30 years came to his studio and made enquiries, about the charges for providing video coverage for marriages. Without paying any advance or confirming the programme, the said person told the petitioner that there was a function in the evening on the same day for which he might be engaged. The same person again came to the studio at about 3 p.m. and wanted the petitioner to cover the function by video. This was not agreeable to the petitioner, since the programme was not fixed earlier and he could not readily take men and material for the purpose of covering the function. The infuriated customer challenged about his power and left the studio. Half-an-hour later, two constables attached to the respondent/police station took the petitioner to the B-2 Esplanade Police Station, where he was locked up. The petitioner was unable to get himself freed since 29.7.1989 was a Saturday. The infuriated customer challenged about his power and left the studio. Half-an-hour later, two constables attached to the respondent/police station took the petitioner to the B-2 Esplanade Police Station, where he was locked up. The petitioner was unable to get himself freed since 29.7.1989 was a Saturday. He was forced to spend the night at the police station. The next day, a Sunday, the friends and well-wishers of the petitioner, approached the respondent police and had him released on bail. While he was released, the Inspector of Police, B-2 Police Station, as well as the respondent, who is a Sub Inspector of Police, warned him, that refusal in future, to lake out-door photographs may incessantly land him in trouble as he had tasted on this occasion. It was also revealed, that the person who made enquiries for taking video coverage, was a close relative of a high ranking police official and was working in the Pallavan Transport Corporation. The ordeal faced by the petitioner at the police station 29.7.1989 has also been narrated in this affidavit, the full details of which need not have to be gone into, in view of the proposed order I intend making directing a de novo trial of the case, by a competent Court, other than the VII Metropolitan Magistrate, Madras. Suffice to state that the petitioner was taken to the Medical Officer, on the guise of his having consumed liquor and a certificate has also been obtained, which may have a bearing in the prosecution initiated against the petitioner. From the original records which I have summoned I find that the petitioner has signed a bond in a sum of Rs.200 at the police station, agreeing to appear before the VII Metropolitan Magistrate, Madras, on 31.7.1989, in respect of B2 Crime No.1832 of 1989. In the affidavit, the petitioner has averred that no summons was received from the Court, by him and, therefore, he felt that action against him, had been dropped. In the affidavit, the petitioner has averred that no summons was received from the Court, by him and, therefore, he felt that action against him, had been dropped. When the signature of the petitioner, found in the bond executed at the police station was brought to the notice of the learned counsel for the petitioner, he stated after obtaining instructions from the petitioner, that when the signature in the bond was taken at the police station, it was blank and nothing had been filled up, and the petitioner was not aware, that he had to appear before the VII Metropolitan Magistrate, on 31.7.1989. 5. While so, when the petitioner was in his studio, a friend informed him that in the Tamil day, “Dhina Thanthi” dated 26.8.1989, a news item had been published showing that a case had been launched against him and he had paid a find of Rs.200, admitting his guilt, on 1.8.1989. It appears that the daily had published the name of the petitioner and his father, in clear terms. The shocked petitioner, rushed to the Court and made arrangements to look into the case records, through his counsel. The perusal of the records by the counsel showed that the petitioner had appeared in Court on 1.8.1989, through a counsel Mr.P.D.Ebi Nazer, and had admitted the guilt, on which admission he was convicted for an offence under Sec.75 of the Madras City Police Act and sentenced to pay a find of Rs.200 attached with a default sentence as stated above. 6. According to the petitioner, he neither went to the Court nor engaged a counsel let alone the payment of fine of Rs.200 which he did not remit. There was no signature in any of the Court records, to vouchsafe the presence of the petitioner in the case, in which he was convicted, it is the petitioner's case that the whole drama had been stage managed by the respondent, with an ulterior motive and with precision. But for the publication in the daily, he would not have been even aware, of the act done, to tarnish his name. 7. After this petition was admitted, the entire records were called from the VII Metropolitan Magistrate, Madras, and it was seen that no summons had been issued, for the appearance of the petitioner before the Court below. But for the publication in the daily, he would not have been even aware, of the act done, to tarnish his name. 7. After this petition was admitted, the entire records were called from the VII Metropolitan Magistrate, Madras, and it was seen that no summons had been issued, for the appearance of the petitioner before the Court below. I directed the VII Metropolitan Magistrate, Madras, to meet me and on such meeting, I questioned him on the basis of the records relating to this case about the non-issuance of summons, and he frankly admitted that no summons had been issued, but the person shown as the accused was produced before him by the concerned police, on 1.8.1989 and on such person pleading guilty, being satisfied, he convicted and sentenced the said person. Regarding non-obtaining of the signature of the accused, when his plea was recorded the learned Magistrate stated that under Sec.281 (6), Cr.P.C., it will not be necessary to obtain the signature of the accused, in a summary trial proceeding. 8. A careful perusal of the bond, executed by the petitioner at the police station shows that the petitioner had agreed to appear before the VII Metropolitan Magistrate, on 31.7.1989. It may be recapitulated that the petitioner has informed this Court, through his counsel, that when the form was signed by him, it was blank, and that he was not told that that he should appear before the Magistrate on 31.7.1989. Even if it is taken for granted, that the petitioner was directed to appear before the VII Metropolitan Magistrate, on 31.7.1989, there is no record to show as to what happened on 31.7.1989 and whether the accused was asked to appear over again on 1.8.1989, since the police had not filed the charge-sheet. On 1.8.1989, one cannot expect the petitioner to appear before the trial Magistrate unless he had been bound over on 31.7.1989. The petitioner could not have been produced before the trial Court as stated by the Magistrate, since he had already been released or 30.7.1989. If the rubber stamp entry is to be taken note of, it shows that the accused was present in Court and copies under Sec.207, Cr.P.C., were furnished to him, and the substance of charge was explained. It also reads that when questioned the accused admitted the offence and pleaded guilty, and that the voluntary plea was accepted. If the rubber stamp entry is to be taken note of, it shows that the accused was present in Court and copies under Sec.207, Cr.P.C., were furnished to him, and the substance of charge was explained. It also reads that when questioned the accused admitted the offence and pleaded guilty, and that the voluntary plea was accepted. Later the conviction and sentence followed. It is the definite case of the petitioner, that he did not appear before the trial Court on 1.8.1989 and that he was not at all aware of any Court proceeding against him. 9. Since the records revealed that an advocate by name Mr.P.D.Ebi Nazer of the Bar Association, George Town, Madras, had appeared on behalf of the petitioner, before the trial Court, I directed issue of notice to him, to explain the correct position in this petition in this court. I had permitted private notice also. The learned counsel appearing for the petitioner, had served notice on the said Mr.P.D.Ebi Nazer by registered post acknowledgment due requiring his presence before this Court on 6.12.1989. Though the said Advocate had received the notice even on 30.11.1989 as seen from the postal acknowledgment and the affidavit of service filed by the learned counsel appearing for the petitioner, the said Advocate has not chosen to appear before this Court. His name was called thrice and there was no representation. It is unfortunate that in a case of this nature where the identity of the accused is being challenged, a member of the Bar, who must act with responsibility has taken the matter so lightly, especially when the issue involved concerns the liberty of a citizen, and the duty the counsel owes to the Court and the society, has been completely lost sight of. The absence of the counsel, who is stated to have appeared in the Court below, on behalf of the petitioner, in spite of service of notice, creates a further reasonable suspicion, that ail was not well in the proceeding that took place before the VII Metropolitan Magistrate, leading to the conviction of the petitioner. 10. The absence of the counsel, who is stated to have appeared in the Court below, on behalf of the petitioner, in spite of service of notice, creates a further reasonable suspicion, that ail was not well in the proceeding that took place before the VII Metropolitan Magistrate, leading to the conviction of the petitioner. 10. The question has to be decided now, will be the legality of the recording of the plea of the accused in summary trial cases, available for the perusal of the higher Courts, only in the form of a rubber stamp and a cryptic entry in the form prescribed under Sec.263, Cr.P.C. There is no dispute that the offence punishable under Sec.75 of the Madras City Police Act, could be tried summarily, since it is an offence punishable with imprisonment for a term less than two years. This position is covered by Sec.260(c)(i), Cr.P.C. What should be done in summary trial is provided in Sec.262, Cr.P.C. In a summary trial case, the procedure for the trial of summons case shall be followed except to the limited extent of the exception contemplated in the Chapter. Sec.263, Cr.P.C., provides for record in summary trials. Sec.264, Cr.P.C., contemplates the Magistrate recording the substance of the evidence, when the accused does not plead guilty and a judgment containing a brief statement of the reasons for the finding. Sec.265, Cr.P.C., provides for the language of record and judgment as contemplated thereunder. The ordinary procedure should be followed in summary trials, unless some provision is made to the contrary. Secs.251 and Secs.252, Cr.P.C., apply to summary trials equally. The departure from ordinary procedure is provided in Secs.262 to Secs.264, Cr.P.C. 11. Let us now look into the various provisions of the Code, relating to procedure. Sec.206, Cr.P.C., appearing in Chapter XVI of the Code, dealing with commencement of proceedings before the Magistrate deals with issue of special summons in cases of petty offence. The departure from ordinary procedure is provided in Secs.262 to Secs.264, Cr.P.C. 11. Let us now look into the various provisions of the Code, relating to procedure. Sec.206, Cr.P.C., appearing in Chapter XVI of the Code, dealing with commencement of proceedings before the Magistrate deals with issue of special summons in cases of petty offence. The section reads: “(1) If in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under Sec.260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of the specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader.” For the purpose of this section, ‘petty offence punishable only with fine not exceeding Rs.1, 000 but does not include certain category of offences which provide for convicting the accused in his absence on a plea of guilty. The prime requisite under Sec.206, Cr.P.C., is the issue of summons to the concerned accused, on receipt of which the accused may choose either to appear in person or if he desired to plead guilty without appearing before the Magistrate, choose to send the plea of admission in writing and the amount of fine specified in the summons to the concerned Magistrate. Naturally, the plea by the accused as well as the remittance of the fine will be at the instance of accused, who has been summoned and the plea is bound to contain the signature of the accused to fix his identity. The other alternative is for the accused who had received the summons to authorise a pleader to plead guilty to the charges and this authorisation should be in writing. This again safeguards the identity of the accused, who would have authorised the advocate in writing to plead guilty on his behalf. The other alternative is for the accused who had received the summons to authorise a pleader to plead guilty to the charges and this authorisation should be in writing. This again safeguards the identity of the accused, who would have authorised the advocate in writing to plead guilty on his behalf. In (a) summons cases ( Sec.252, Cr.P.C.), (b) warrant cases ( Sec.238, Cr.P.C. )and (c) sessions cases ( Sec.226, Cr.P.C. ), the contemplation is, the appearance of the accused before Court either by himself or on his being brought before it. The former will take in its fold the appearance of the accused on summons or on his having been bound over earlier and the latter, the production of the accused from custody. In summons trials, the summons case procedure has to be followed ( Sec.272, Cr.P.C. ). Therefore, if the accused had not been bound over or produced from custody, issue of summons would be the ‘minimum requisite’. 12. As stated earlier, even in summary trial cases, the accused will have to be supplied with copies of the police report and other documents ( Sec.207, Cr.P.C. ) and the sum and substance of the accusation has to be stated to him and asked if he was pleading guilty or had any defence to make ( Sec.251, Cr.P.C.), though it may not be necessary to frame a formal charge. If the accused pleads guilty, the Magistrate shall record his plea as nearly as possible in the words used by the accused and may in his discretion, convict him thereon. This provision which forms part of Sec.252, Cr.P.C., contemplates the plea being recorded as nearly as possible in the words used by the accused. The importance of the plea being recorded thus, has been the subject matter of several decisions. In the event of the accused not pleading guilty in summons cases, the procedure is ordained, under Sec.254, Cr.P.C., and in respect of summary trials, the procedure, under Secs.262 and Secs.263, Cr.P.C., has to be followed. The importance of the plea being recorded thus, has been the subject matter of several decisions. In the event of the accused not pleading guilty in summons cases, the procedure is ordained, under Sec.254, Cr.P.C., and in respect of summary trials, the procedure, under Secs.262 and Secs.263, Cr.P.C., has to be followed. The importance of the recording of the plea is also seen from the form contemplated under Sec.263 (g), Cr.P.C. The plea of the accused in his own words is contemplated in law, to facilitate the Court to arrive at a conclusion, if in fact, the words used by the accused while pleading, have a bearing, to the sum and substance of the accusation against him, and what exactly the accused had admitted. That is the reason why Sec.252, Cr.P.C., takes within its fold the words “in his discretion”. In Kaushalya Das v. State of Madras Kaushalya Das v. State of Madras (1966)1 S.C.R. 229 :1966 Crl.L.J. 66 the Supreme Court held that the requirements of Sec.243, of the old Code, corresponding to Sec.252 of the present Code, were mandatory in character and a violation of this provision would vitiate the trial and render the conviction legally invalid. The requirement of the section was not at mere empty formality but was a matter of substance intended to secure proper administration of justice. It was further observed therein that it was important that the terms of the section were strictly complied with, because the right of appeal of the accused depended upon the circumstance, whether he pleaded guilty or not and it was for this reason that the legislature required that the exact words used by the accused in his plea of guilt should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension. The Supreme Court also considered Sec.362(2A) of the 1898 Code which reads as follows: “In every case re ferred to in Sub-sec(1), the Magistrate shall make a memorandum of the substance of the examination of the accused. The Supreme Court also considered Sec.362(2A) of the 1898 Code which reads as follows: “In every case re ferred to in Sub-sec(1), the Magistrate shall make a memorandum of the substance of the examination of the accused. Such memorandum shall be signed by the Magistrate with his own hand, and shall form part of the record.” Sub-sec.(1) of Sec.362 of the 1898 Code contemplated the Magistrate either taking the evidence of the witnesses with his own hand, or causing it to be taken in writing from his dictation in open Court, and all evidence so taken had to be signed by the Magistrate and it shall form part of the record. On these provisions, the Supreme Court in the decision cited above, held that Sec.362(2A) had no application in a case where the accused pleaded guilty and the provision of Sec.243 of the old Code would be attracted. Sec.243, Cr.P.C., (present Sec.252 ) according to the Supreme Court, was a provision of a special character and according to well established rule of interpretation, the special provision will take precedence and override the general provision of Sec.362(2A) of the old Code. 13. In Sivaguru IN RE. Sivaguru IN RE. 1974L.W. (Crl.) 199, Paul, J., while considering the plea of guilt by an accused, in a prosecution under Sec.76 of the City Police Act, held that if the accused admitted that he had committed the offence, his admission under Sec.243, Cr.P.C. (new Sec.252, Cr.P.C.), should be recorded as nearly as possible, in the words used by him and that if he showed no sufficient cause why he should not be convicted, the Magistrate may convict him. The learned Judge also found that no entries appear to have been made in Summary Trial Register which contained various columns, one of which related to the plea of the accused and another, to reasons for his conviction and the provisions of law under which he was convicted, and the last, to the sentences meted out to him for that offence. The learned Judge also took note of Sec.362(2A) of the old Code and on the basis of the law laid down by the Supreme Court in Kaushalya Das v. State of Madras Kaushalya Das v. State of Madras (1966)1 S.C.R. 229 :1966 Crl.L.J. 66 held that Sec.243, Cr.P.C. was a provision of a special character which would take precedence and override the general provision of Sec.362(2A) of the old Code. 14. The Kerala High Court in Smt.Mani v. State of Kerala Smt.Mani v. State of Kerala 1975 Crl.L.J. 1882 while construing the provision of Sec.252, Cr.P.C., held that when the provisions are violated by the Magistrate, the conviction was liable to be set aside. In that case, the allegation in the petty charge sheet did not appear to have constituted any offence. 15. As far as the recording of the plea is concerned, Sec.252 requires that the plea of the guilt of the accused should be recorded as nearly as possible in the words used by him. The reason is that the plea of the accused is what he actually states and not the conclusion reached by the Magistrate, after hearing his statement. While recording his admission, the Magistrate should see that the accused understood the ingredients. The use of a rubber stamp with the words, he pleads guilty, does not appear to be warranted by the provisions of law. The law envisages the plea must flow from the mouth of the accused. Secs.251 and 252 of the Code are applicable to summons cases tried summarily under Sec.263(g). The plea of the accused if it amounts to an admission of the offence should be recorded as nearly as possible in the words of the accused. Sec.252, Cr.P.C., being a special provision overrides the general provision contained in Sec.281, Cr.P.C., appears in Chapter XXIII of the Code, which deals with the evidence in inquiries and trials. It is, therefore, apparent that Sec.281 should prima facie be taken to deal with the examination of the accused after the recording of the evidence and not to the statement recorded in the initial stage when the accused is produced. In my opinion Sec.263(g), Cr.P.C., is neither in conflict with the provision contained in Sec.252 of the Code proper construction to be placed upon Sec.263(g) would be that the plea of the accused should be recorded as nearly as possible in his own words. In my opinion Sec.263(g), Cr.P.C., is neither in conflict with the provision contained in Sec.252 of the Code proper construction to be placed upon Sec.263(g) would be that the plea of the accused should be recorded as nearly as possible in his own words. In thus construing Secs.252 and 263(g), Cr.P.C. I am aware of the provision of Sec.281, Cr.P.C., which stipulates under Sub-clauses (2) and (3) that whenever the accused is examined by any Magistrate, other than a Metropolitan Magistrate or by a Court of Sessions, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full in the language in which he is examined and if that was not practicable in the language of the Court. This section under Sub-clause (6) makes this requirement inapplicable to summary trials, by providing “Nothing in this section shall be deemed to apply to the examination of an accused person in course of a summary trial“. It has to be borne in the mind that Sec.262, Cr.P.C., operates in a limited sphere while Sec.281, Cr.P.C., covers a much wider issue. In a case where the accused does not plead guilty, when he is examined under Sec.313, Cr.P.C., his examination may not have to be recorded in full as contemplated under Sec.281, Cr.P.C., Sec.281, Cr.P.C., as stated earlier, is a general provision dealing with examination of the accused in general, whereas Sec.252, Cr.P.C., which would be applicable to summary trials, by reason of Sec.262, Cr.P.C., contains a special provision. According to well established rules of construction the said provision overrides the general provision contained in Sec.281, Cr.P.C., and I am, therefore, of the positive opinion that whenever an accused in a summary trial admits to have committed the offence of which he is accused, his admission should be recorded, as nearly as possible, in his own words. The rule embedded in Sec.252, Cr.P.C., is a very salutary rule, being necessary for the protection of the accused and the proper administration of justice. The order of a Magistrate recording a conviction on the basis of the admission of the accused, is not a final order, inasmuch as it is open for scrutiny by a superior Court. The superior Court is entitled to be satisfied that what was recorded by the Magistrate, as an admission of the offence, is really such an admission. 16. The order of a Magistrate recording a conviction on the basis of the admission of the accused, is not a final order, inasmuch as it is open for scrutiny by a superior Court. The superior Court is entitled to be satisfied that what was recorded by the Magistrate, as an admission of the offence, is really such an admission. 16. In the instant case, on the facts and circumstances, I am of the view that the VII Metropolitan Magistrate, Madras, has not at all followed the procedure contemplated under law. No provision in the Code of Criminal Procedure or the Rules of Practice, has been brought to my notice, contemplating the signature of the accused being taken when the initial plea is recorded. A reading of Sec.206, Cr.P.C., gives an insight that, in the interests of administration of justice the signature of the accused must be obtained, under the plead recorded by the Magistrate, even initially. This procedure has to be followed scrupulously, as otherwise, in cases of the type, I am dealing with now, the identity of the accused cannot be fixed, which is bound to result in very grave miscarriage of justice. This contingency may not arise often, but these exceptions must dictate norms to be followed, for, what is paramount is proper administration of justice. The issuance of a summons to the accused, who has not been bound over or not to be produced from custody, is a prime requisite. The supply of records under Sec.207, Cr.P.C., then follows, though in summons cases the Magistrate need not have to specifically satisfy himself that provisions of Sec.207, Cr.P.C., had been complied with. The rubber stamp alone indicates “that copies under Sec.207, Cr.P.C. furnished“. I hold the procedure followed by the Magistrate (a) in not having issued summons to the accused, (b) in not having satisfied himself about the identity of the person who had appeared before him, and (c) in not having recorded the plea as nearly as possible in. the words used by the accused, vitiates the entire proceeding. The order passed by the Magistrate is unsustainable and consequently, the conviction and sentence imposed on the petitioner will have to be set aside. the words used by the accused, vitiates the entire proceeding. The order passed by the Magistrate is unsustainable and consequently, the conviction and sentence imposed on the petitioner will have to be set aside. Accordingly, I quash the conviction and sentence imposed on the petitioner in A.P.C.No.8320 of 1989, on the file of the VII Metropolitan Magistrate, Madras, and remand the matter for fresh trial by any other competent Magistrate, other than the VII Metropolitan Magistrate, who had decided this case already. The Chief Metropolitan Magistrate, Egmore, Madras, will forward the papers to a competent Magistrate, for fresh disposal, in accordance with law. This petition is allowed. B.S. ----- Petition allowed.