STATE OF GUJARAT v. KAMALSINH MUNSHIRAM KUMAR — 1995 DIGILAW 187 (GUJ)

D. G. KARIA, J. ( 1 ) ). State of Gujarat has preferred this appeal under Section 377 of the Code of Criminal Procedure against judgment and order dated August 17 1987 whereby learned Judicial Magistrate First Class Lunavada convicted the respondentaccused in summary case No. 412 of 1987 for the offences punishable under Section 304-A of the Indian Penal Code and Section 279 of the Indian Penal Code and Sections 112 and 116 of the Motor Vehicles Act on the accused pleading guilty of the said offences. The learned Magistrate ordered to sentence the accused till rising of the Court and imposed a fine of Rs. 450. 00. in default simple imprisonment for one month for the offence punishable under Section 304 A of the Indian Penal Code and imposed a fine of Rs. 50. 00 in default simple imprisonment for three months for the offence punishable under Section 112 of the Motor Vehicles Act and no separate sentence was passed for the offence punishable under Section 279 of the Indian Penal Code and Section 116 of the Motor Vehicle Act. It is against this order of sentence the State of Gujarat has preferred this appeal for enhancement of the sentence of the plea that having regard to the seriousness of the offences the sentence imposed by the learned Magistrate is too lenient. ( 2 ) ). The aforesaid summary case No. 212 of 1987 was instituted against the respondent-accused in the court of the learned Judicial Magistrate First Class at Lunavada for the aforesaid offences. It was alleged that at about 16 hours on October 9 1988 the accused drove the moto truck No. GTB 6197 on the public road of Virpur-Khanpur road in a manner so rash and negligent as to endanger human life and collided and caused death of one Bismillakhan. The accused was also alleged to have caused death of the said Bismillakhan by rash and negligent act of driving not amounting to culpable homicide and thereby committed offences punishable under Sections 304-A and 279 of the Indian Penal Code and Sections 112 and 116 of the Motor Vehicles Act. ( 3 ) ). The sentence provided for the aforesaid offence on conviction is that the accused shall be punished on conviction for the offence punishable under Section 304-A for imprisonment for 2 years or fine or both. ( 3 ) ). The sentence provided for the aforesaid offence on conviction is that the accused shall be punished on conviction for the offence punishable under Section 304-A for imprisonment for 2 years or fine or both. As regards offence of rash and negligent driving on the public road under Section 279 of the Indian Penal Code the sentence provided is that punishment for a term which may extend to six months or with fine which may extend to Rs. 1000. 00 or both. Mr. S. T. Mehta learned A. P. P. appearing for the appellant-State submits that the learned Magistrate has ignored the provisions relating to sentence and has imposed absolutely lenient sentence without considering the seriousness of the offence. There is substance in the submission of Mr. Mehta. In this case the learned Magistrate has not assigned any reasons whatsoever for imposing such lighter punishment as to imprisonment till rising of the court. Whereas the imprisonment extending for a period of two years is provided for the offence under Section 304 of the Indian Penal Code on conviction. ( 4 ) ). This case however appears to be a case of plea bargaining and as such it will be in the interest of justice to remand the case to the trial Court. As observed in the case of Kasambhai Abdul Raheman v. State of Gujarat reported in the A. I. R. 1980 SC. 854 the conviction of an accused based on plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be considered to be unconstitutional and illegal. Where the conviction of the accused has been solely based on the plea of guilty entered by him and this confession of guilt was the result of plea bargaining with the prosecution the defence and the Magistrate the case is required to be remanded of trial in accordance with law. Where the conviction of the accused has been solely based on the plea of guilty entered by him and this confession of guilt was the result of plea bargaining with the prosecution the defence and the Magistrate the case is required to be remanded of trial in accordance with law. This Court (Coram : M. B. Shah J.) in the case of State v. Krushnmorari reported in 29 (2) G. L. R. 965 has observed as under : " Normally in each and every case where plea of guilty is recorded by the learned Magistrate in this type of serious offences at the time hearing of the appeal the accused submits that they have pleaded guilty because of some inducement or promise either by the prosecutor or by the Food Inspector or by the Magistrate. Therefore it would be just and proper that in this type of cases before recording their plea the learned Magistrate should explain the charge to the accused and in writing he should inform them that the minimum sentence is prescribed under the Act and that appropriate sentence would he imposed and thereafter he should record the plea of the accused so that there may not be any chance of stating before the appellate Court that the plea was recorded under some inducement. To avoid the submission of the accused that they pleaded guilty under some inducement it would be advisable that the Court should inform the accused after explaining the charge that for the offences minimum sentence is prescribed and unless special reason are shown in any set of circumstances minimum sentence would be imposed. In this type of serious offences the Magistrate should discharge his duties seriously and should apply his mind to the facts of the case and if necessary record the evidence before passing the order of sentence and should not act mechanically or in haste and dispose of the case. ( 5 ) ). In view of the aforesaid position of law the present case being a ease of plea bargaining requires to be remanded for trial in accordance with law to the trial Court. In the result the appeal is allowed. The impugned judgment and order of convection and sentence is set aside. Fine it paid by the accused is ordered to be refunded to the accused. The trial Court is directed to try the case in light of the. In the result the appeal is allowed. The impugned judgment and order of convection and sentence is set aside. Fine it paid by the accused is ordered to be refunded to the accused. The trial Court is directed to try the case in light of the. aforesaid observations and dispose it of on merits and in accordance with law. The case being old it is directed that the learned Magistrate shall dispose it of as expeditiously as possible and not later than June 30 1995. .