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1997 DIGILAW 1126 (RAJ)

J. K. Dholkia v. State of Rajasthan

1997-09-12

M.A.A.KHAN

body1997
JUDGMENT 1. - Heard the learned counsel for the parties. 2. The petitioners in this case are the owners and managers of M/s. Ceramics India Ltd. Industrial Area, Bhiwari, Distt. Alwar. They are alleged to have committed the offence of non-fencing the machineries in their factory, being an offence under section 21 and punishable Under section 92 of the Factories Act, 1948 (the Act). The Inspector Factories and Boilers, Bhiwari, has filed the complaint against the petitioners for having committed the aforesaid offence on 29.4.89. It was alleged by the complainant that the non-fencing of the machineries by the petitioners had led to causing fatal injuries to one Amar Chand Guard on 26.4.89. When the Inspector had inspected the factory premises, the Belt Conveyor and the Roller, whereat Amar Chand had sustained injuries were found un-covered. The inspector accordingly filed the complainant before the concerned Magistrate. 3. On 24.10.90 a request was made by the counsel of J.K. Dholkia. petitioner, that the plea of guilty of the accused be recorded and that the case be decided through his counsel Sh. Pavan Kumar. The learned Magistrate recorded the plea of guilty of the accused through his counsel and imposed a fine of Rs. 500/- upon him. Thereafter, on the adjourned date of hearing, i.e. 9.1.91, Sh. B.D. Agrawal, another petitioner, made a similar request through his counsel and the learned Magistrate recorded plea of guilty through his counsel and imposed the same amount of fine upon him. 4. It appears that the State preferred a revision petition against the judgment and order, dated 9.1.91 as passed by the learned Magistrate, in the case. The learned Addl. Sessions Judge, Kishangarh Bas appears to have issued process to B.D. Agrawal, petitioner, who was a respondent in that petition. However, without service of the notice of date of hearing of the petition, the learned Addl. Sessions Judge heard the learned Asstt. Public Prosecutor and set aside the order, as passed by the learned Magistrate and sent the case back to him for disposal according to law. At the same time the learned Addl. Sessions Judge set aside the order of conviction of J.K. Dholkia, petition, dated 25.10.90, against which no revision petition had been filed by either of the parties and J.K. Dholkia, petitioner, had not put in appearance before the learned Addl. At the same time the learned Addl. Sessions Judge set aside the order of conviction of J.K. Dholkia, petition, dated 25.10.90, against which no revision petition had been filed by either of the parties and J.K. Dholkia, petitioner, had not put in appearance before the learned Addl. Sessions Judge Both these orders have been challenged by this petition Under section 397(1) Cr.RC. by both the petitioners. 5. The main argument of Mr. R.K. Mathur, the learned counsel for the petitioner was that the impugned order was passed without giving an opportunity of being heard to the petitioners and, therefore, the same should be set aside. Section 403 Cr.RC., no doubt, says that it is not obligatory on the part of a revisional court to hear a party in revision petition under section 397(1) Cr.PC. but Section 401 (2) Cr.RC., which regulates the exercise of the powers of revision of this court requires that a party should be given an opportunity of being heard before an order, adverse to his interest, is passed. The same principle may be borrowed in Section 399 Cr.PC. relating to the powers of revision of the Sessions Judge, as is provided in sub-sec. (2) of that Section. Since, the learned Addl. Sessions Judge did not provide any opportunity of being heard to the petitioner as was required to be done by him in accordance with the provisions, contained in Section 399(2) r.w. Section 401 (2) Cr.RC., the impugned order is bad in law. 6. However, an order, which is bad in law and may even be illegal, is not to be set aside in revision Under section 397 (1) Cr.RC. until such order causes some prejudice to the petitioner or leads to mis carriage of justice. The petitioners could not make out a case of injustice to them, caused by the impugned order, as the said order simply, required the Magistrate to decide the case afresh according to law. I, therefore, heard Mr. Mathur on merits of the petition particularly in view of the fact that the offence was alleged to have been committed in the year 1989 and such offence was punishable with two years imprisonment or with fine or with fine or with both only. 7. Though Mr. I, therefore, heard Mr. Mathur on merits of the petition particularly in view of the fact that the offence was alleged to have been committed in the year 1989 and such offence was punishable with two years imprisonment or with fine or with fine or with both only. 7. Though Mr. Mathur urged that he wanted to withdraw the present petition, yet on examining the impugned order I am of the opinion that the approach, adopted by the learned Addl. Sessions Judge in passing the impugned order, does require this Court to remove certain mis-conception of law on his part. Section 399 (1) Cr.RC. casts a duty upon this court to examine the correctness, illegality and propriety of the findings, recorded, and sentence, passed, by the inferior courts. On examination of the impugned order it is noticed that the learned Addl. Sessions Judge has set aside the orders of the learned Magistrate mainly on the ground that the plea of the accused was recorded through their counsel and that the order of conviction was passed in their absence. Both these points, which appeal to the learned Addl. Sessions Judge, are not tenable at law. 8. Since the offence under section 21 of the Act was punishable with two years imprisonment or with fine or with both, it offence was triable as a summons case as per Schedule II of the Code of Criminal procedure. Section 253 (2) Cr.PC. provides that the Magistrate may in his discretion convict the accused in his absence on his plea of guilty and sentence him to pay the fine, specified in the summons case. Though this Section has a relation to the summons sent to the accused under section 206, which has been talked of in Section 253 (1), yet Section 252 admits of the proposition that a plea of guilty may be recorded through a counsel, provided the offence is punishable with sentence of fine only. In case the offence is not punishable with fine only, the plea of guilty shall have to be recorded on the accused himself. In any case after recording the plea of guilty a judgment of sentencing the accused with fine only, may be pronounced in his absence as per provisions of Section 353 (7) Cr.PC. In my opinion, therefore, the learned Addl. In any case after recording the plea of guilty a judgment of sentencing the accused with fine only, may be pronounced in his absence as per provisions of Section 353 (7) Cr.PC. In my opinion, therefore, the learned Addl. Sessions Judge was wrong when he entertained the opinion that an order of conviction, imposing sentence of fine only, cannot be pronounced in the absence of the parties. However, he was right on the other point when he stated that a plea of guilty in a case, involving offence, punishable with imprisonment, cannot be recorded through his counsel. The particulars of the offence and substance of accusation in a summons case may be read over and explained to and a charge in a warrants case may be framed on, an accused through his counsel provided there is no plea of guilty at that stage of the proceedings. In the present case, before recording the plea of guilty, the learned Magistrate can be said to have come to know that the accused were going to plead guilty to the charge against them and the recording of such plea of guilty through their counsel indicates that he knew that on the plea of guilty, he (the counsel) would not be required to suffer any sentence of imprisonment. That was clearly or case of "plea bargain". The learned Addl. Sessions Judge was, therefore, right in finding such a mistake in the order passed by the learned Magistrate. 9. In order to enable him to examine the legality and validity of the order, passed by the Magistrate it was not necessary for the learned Judge to have exercised his jurisdiction Under section 397(1) Cr.PC. only on the basis of an application, moved before him. He could have taken suo moto cognizance of the matter and corrected the illegality or invalidity, as the case may be in the order challenged. However, before setting aside an order, favourable to an accused, it was obligatory on the part of the learned Addl. Sessions Judge to have given a notice of the date of hearing of the petition to the accused. But the learned Addl. Sessions Judge has not done that in the present case. 10. Though the orders of the learned Magistrate as well as the order of the learned Addl. Sessions Judge to have given a notice of the date of hearing of the petition to the accused. But the learned Addl. Sessions Judge has not done that in the present case. 10. Though the orders of the learned Magistrate as well as the order of the learned Addl. Sessions Judge are found to be defective and invalid for the reasons, stated above, and , therefore, deserve to be set aside yet I find that the offence had been committed in the year 1989 and such offence was punishable with imprisonment for two years or with fine or with both. The petitioners had, though through their counsel,pleaded guilty to the aforesaid offences. It is, therefore, not desirable that the matter be sent back to the Magistrate for trial afresh after so many years. Therefore, to bring the litigation to an end this court would like to pass appropriate orders with regard to the sentence, imposed on the petitioners. 11. Both the petitioners are held guilty of an offence Under section 21 r.w. Section 92 of the Act, convicted as such and sentenced to pay a fine of Rs. 10,000/- each or to under go Simple Imprisonment for three months each, in case of default of the payment of fine. The amount of fine, if realised, shall be paid to Amar Chand, injured/deceased worker, by way of compensation. The petitioners are allowed three months' time to pay such amount of fine. 12. The petition is disposed of accordingly.> Petition decided as above. *******