STATE OF GUJARAT v. MAHESHKUMAR AMBALAL RANA — 1993 DIGILAW 214 (GUJ)

K. J. VAIDYA, J. ( 1 ) THESE two appeals by the State of Gujarat are directed against the impugned judgment and order dated 8-6-1990 rendered in two criminal cases Nos. 4337/86 and 14747/87 by the learned Chief Judicial Magistrate Bharuch wherein the respondent - M. A. Rana who came to be tried for the alleged offences punishable under Sections 409 467 and 477a of the IPC on pleading guilty to the charge was convicted for the same and instead of sentencing him to undergo any imprisonment or to pay a fine was simply ordered to be released on probation under section 4 of the Probation of Offenders Act 1958 (for short-the Act ). ( 2 ) TO state the prosecution case briefly the respondent M. A. Rana during the relevant period was working as a Junior Clerk in Jambusar Nagar Panchayat. It is further alleged that during the period 1985-86 he committed criminal breach of trust in respect of two amounts viz. that of Rs. 7 783 and Rs. 12 453 and in the process also forged and fabricated certain receipts and other relevant records of the Panchayat in the said regard. On the basis of these allegations the learned Magistrate framed two separate charges to which he pleaded not guilty and claimed to be tried. However thereafter during the course of the trial it further appear that the respondent all of a sudden turned round and on having some after-thought pleaded guilty to the charge. The learned Magistrate accepting the same convicted him for the alleged offences and releases him on probation of two years as stated in detail in the impugned judgment and order. It is under these circumstances that the State of Gujarat has filed these two appeals. 2. 1 It may be stated that both these appeals arise out of more or less identical facts-situation except the fact that the amounts alleged to have been misappropriated are two different one of the different periods. Under the circumstances at the joint request and consent of the learned Advocates appearing for the respective parties these two appeals are heard and finally decided together by this common judgment. Under the circumstances at the joint request and consent of the learned Advocates appearing for the respective parties these two appeals are heard and finally decided together by this common judgment. ( 3 ) M/s. M. A. Bukhari and K. P. Raval the learned APPs for the appellant-State while challenging the impugned order of releasing accused on the probation submitted that taking into consideration the two indisputable facts - firstly that the offence alleged against the respondent was under Section 409 of IPC which is punishable with imprisonment for life he could not have been released on probation under section 4 of the Act and secondly the respondent at the earlier stage having pleaded not guilty and claimed to be tried thereafter it was not open to the learned Magistrate to accept the plea of guilty and that he should have recorded the evidence and disposed of the cases on merits there two cases deserve to be remanded to the trial court for de-novo trial. In support of the first contention the learned APPs have relied upon Section 4 of the Act as well as decision of the Supreme Court rendered in the case of Somnath Puri vs. State of Rajasthan reported in AIR 1972 SC 1490 wherein it has been held that a person convicted for the offence under section 409 of the IPC which is punishable with life imprisonment cannot invoke the benefit under section 4 of the Probation of Offenders Act. Thereafter in support of the second contention also the learned APPs have relied upon the decision of this court rendered in the case of Jayanti Luxman vs. The State of Gujarat reported in 5 (1964) GLR 648 wherein this court has taken the view that the stage of convicting an accused person on his plea of guilty comes when the charge is read over to the accused. If at that stage the accused pleads not guilty he cannot be convicted without recording evidence and without appreciating evidence which is recorded. What an accused says subsequent to the charge does not amount to a plea. On the basis of the aforesaid submissions the learned APPs finally urged that the impugned judgments and orders releasing the respondent on probation being illegal the same require to be quashed and set aside and that the cases be remanded to the trial court for de-novo trial. On the basis of the aforesaid submissions the learned APPs finally urged that the impugned judgments and orders releasing the respondent on probation being illegal the same require to be quashed and set aside and that the cases be remanded to the trial court for de-novo trial. ( 4 ) AS against the above Mr. Sanjanwala the learned Advocate appearing for the respondent quite fairly conceded that taking into consideration the facts and circumstances of these cases and particularly the above referred two decisions relied upon by the learned APPs he was not in a position to controvert the same to defend patently illegal orders. At the same time Mr. Sanjanwala further submitted that merely because the impugned judgments and orders are found to be illegal that by itself is not sufficient to mechanically remand these cases to the trial court for de-novo trial. Making good these submissions Mr. Sanjanwala further submitted that by this time these two offences have become pretty stale as about 8 years have already passed after the commission of the said offences. Not only that but the respondent has subsequently paid back the entire misappropriated amounts. In support of this submission Mr. Sanjanwala has produced on record two receipts dated 24-1-1991 and 8-11-1985 issued in favour of the respondent by Jambusar Nagar Panchayat showing that the respondent has paid back the entire misappropriated amounts. These two receipts have been duly seen by the learned APPs and they have not disputed the correctness of it. Mr. Sanjanwala further submitted that not only that but the respondent is still further ready and willing to pay up the entire interest amount due on the aforesaid misappropriated amounts for the relevant period in between the date of the commission of the offence and the date on which the amounts were actually paid back to the Panchayat. Mr. Sanjanwala submitted that thus when the amounts are duly paid up at such a belated stage this court may not remand the matters to the trial court. Mr. Sanjanwala further submitted that even if the cases are remanded the respondent would be within his right to urge before the trial court to take into consideration the factor of the long pending trial and of paying back the entire amount for taking lenient view of the matter while awarding the sentence. Mr. Mr. Sanjanwala further submitted that even if the cases are remanded the respondent would be within his right to urge before the trial court to take into consideration the factor of the long pending trial and of paying back the entire amount for taking lenient view of the matter while awarding the sentence. Mr. Sanjanwala further submitted that even the Supreme Court has taken a view that when the accused pays up the amount that factor can be taken into consideration for taking a lenient view of the matter while awarding the sentence. In support of the above two submissions Mr. Sanjanwala has relied upon two decisions of the Supreme Court rendered in the cases of (1) State of Gujarat vs. V. A. Chauhan reported in AIR 1983 S. C. 359 and (2) Ved Prakash Handooja vs. Delhi Administration reported in AIR 1974 SC 2336 . In the case of State of Gujarat vs. VA. Chauhan the Supreme Court has observed that though the benefit under section 4 of the Probation of Offenders Act 1958 cannot be extended to the accused convicted of the offence punishable under Section 409 (Punishable with life imprisonment) however since the same was already extended to the accused by the subordinate court since last many years it was not interfered with in the overall interests of justice at the belated stage. Similarly in the case of Ved Prakash Handooja vs. Delhi Administration where the accused in the capacity of the clerk defaulcated the amount of Rs. 8 898. 38 he on depositing the entire amount towards the fine with a view to reimburse the complainant the Supreme Court held that it would meet the ends of justice if the sentence of RI was reduced to the period already undergone provided the accused deposits additional fine of Rs. 2 0 On the basis of these submissions it was finally urged by Mr. Sanjanwala that even if it is held that the impugned judgments and orders are illegal then even taking into consideration the peculiar facts and circumstances of the case these two matters may not be remanded. 2 0 On the basis of these submissions it was finally urged by Mr. Sanjanwala that even if it is held that the impugned judgments and orders are illegal then even taking into consideration the peculiar facts and circumstances of the case these two matters may not be remanded. ( 5 ) NOW ordinarily in such type of matters wherein the accused in the first instance pleaded not guilty and thereafter pleaded guilty and as a result released on probation the matters are required to be remanded to the trial court and accordingly there is no reason for this court to take exception to the said general practice. However bearing in mind the ratio laid down by the Supreme Court in the above referred two decisions of the Supreme Court rendered in the case of State of Gujarat vs. V. A. Chauhan and Ved Prakash Handooja vs. Delhi Administration this court feels that it would not be expedient in the overall interests of justice to remand the cases as the same is not likely to serve any useful purpose. The reasons for taking the said view are that (1) the alleged misappropriated amounts are comparatively not that large amount and (2) which by this time have been duly paid back (3) not only that but the interest due on the misappropriated amounts is also agreed upon by the respondent to be paid to the department for which the learned Advocate for the respondent has given a personal undertaking. Under these circumstances even if the matters are remanded to the trial court for de-novo trial then taking into consideration the above two decisions of the Supreme Court relied upon by Mr. Sanjanwala this is not a case which calls for remand at such a belated stage. Not only that but having regard to the fact that the misappropriated amounts have been duly paid back and that too with the interest that factor would be open to any court to take a lenient view of the matter in awarding the sentence. In this view of the matter if even after remanding these two cases to the trial court if ultimately there is not going to be any major difference in the matter of awarding punishment to the respondent this court feels that remanding the cases just for the sake of remanding would be quite useless exercise in futility. In this view of the matter if even after remanding these two cases to the trial court if ultimately there is not going to be any major difference in the matter of awarding punishment to the respondent this court feels that remanding the cases just for the sake of remanding would be quite useless exercise in futility. Not only that but there is yet another important side of the picture which is equally important to bear in mind while remanding the matter and it is this. By remanding such matters the trial court would be once again asked to re-cycle the entire trial proceedings afresh bringing about two more criminal cases to be added to the long list of order pending cases to be tried. This obviously would consume further more public time and energy of the learned Magistrate staff of the court the process serving agency etc. It would also further add to the cost of stationery and other financial aspects involved. Thus after doing all these things if the result is ultimately going to be square-one at the end of the fresh trial then in that case though technically the impugned orders are patently illegal and cannot be sustained for a minute more even the better part of the judicial discretion always warrants that it is better not to remand the cases. There are cases and cases and that these two are certainly one of those fittest cases wherein no useful purpose is likely to be served on remanding the matters and therefore they are not required to be remanded. Further still even if the cases are not remanded the fact remains that the stamp of stigma of conviction in a criminal case on the forehead of the respondent remains as it is which by no stretch of imagination can be said to be less humiliating as that has sufficiently damaged the image and reputation of the respondent as an honest and trust worthy fellow in the society. ( 6 ) NOW the learned APPs who initially were quite vehement in insisting upon the remand of these two cases for fresh trial when they were made conscious of the futility in exercise in the said regards they were enable to press further their prayer for remand. Every case has to be decided on the facts i. e. overall intrinsic strength and weakness of that particular case. Every case has to be decided on the facts i. e. overall intrinsic strength and weakness of that particular case. It is true that at earlier stage the respondent pleaded not guilty and thereafter turned round and pleaded guilty was certainly illegal. Similarly the accused convicted under section 409 of the IPC cannot be given benefit under section 4 of the Probation of Offenders Act. and thus undoubtedly the impugned judgments and orders passed by the trial court patently illegal but as discussed above in every case the better part of the judicial discretion must have the last say that is to say the cases are not to be decided mechanically merely on the ground of some illegality putting the sound common sense and the overall judicial discretion in the cold storage. The judicial discretion/ pragmatism must always and in overall interests of justice at times has got to trascent the law and to perform that part of the highest duty which sometimes when narrowly viewed appears to be illegal and yet at the same time are neither improper nor unjust. Thus having regard to the facts and circumstances of the case it is finally decided not to remand these two cases to the trial court and close the chapter here as it is. ( 7 ) IT is true that in case of Ved Prakash Handooja vs. Delhi Administration (Supra) the accused had undergone some sentence and to that limited extend said decision may not be applicable to the facts of the present case. However this court taking into consideration overall facts and circumstances of this case do not deem it necessary to award any further sentence except to direct the respondent to deposit Rs. 1 0 towards the cost of the proceedings and the interest due on misappropriate amount as aforesaid and given undertaking by the learned Advocate for the respondent. ( 8 ) IN the result these two appeals are partly allowed. The impugned judgment and order of conviction passed by the trial court are hereby confirmed. Taking into consideration the peculiar facts and circumstances of these two cases no separate order of sentence is passed however the respondent is directed to deposit a sum of Rs. 1 0 towards the costs on or before as undertaken by his learned Advocate. Appeal Partly Allowed. .