Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 128 (HP)

SHIV RAM v. STATE OF H. P.

2002-05-04

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This petition arises out of the judgment of conviction recorded by the learned Judicial Magistrate 1st Class, Nurpur on the plea of guilt said to have been made by the petitioners for offences punishable under Sections 41 and 42 of the Indian Forest Act read with Sections 11 and 20 of Forest Produce Land Routes Rules, 1978. 2. It appears, on 15th March, 2000, Mohan Singh, Forest Guard, Incharge Tappa Beat was on normal patrol duty. He intercepted Truck No. HIL-5145. On search of the truck, 15 gunny bags containing semi wet Katha were found loaded in the Tool Box of the truck. At the relevant time, the truck was driven by Shiv Ram driver. Raghubir Singh, the other petitioner, was sitting along with the driver. They could not produce any permit for the export of Katha. The Katha was weighed and found to be 7.27 quintals. That Katha, it was revealed by Shiv Ram driver of the truck, was lifted from Katha Bhatti located in Ramnager area. The truck was owned by Ms. Kiran Bala daughter of Sh. Rabhubir Sharma who was accompanying the driver in the truck. Durga Dass, the third petitioner, was added as accused but there is no allegation against him in the complaint lodged by the Forest Range Officer. However, it appears, Durga Dass has a licensed Bhatti for the extraction of Katha at Jamgal in Ramnagar and the Katha was taken from his Bhatti. 3. On 8.6.2000, when the matter came up before the learned trial Magistrate, he directed issuance of bailable warrants against the accused-petitioners. On 2.3.2001, notice of accusation was given to all the accused namely, Raghubir Sharma, Durga Dass and Shiv Ram. The accusation, as given to the accused, was that all accused on 15.3.2000 transported 15 bags of Katha weighing about 7.27 Qtls Katha Bhatti to Indora in Truck No. HIL 5145 without transport permit from the DRO and thereby committed an offence punishable under Sections 41 and 42 of the Indian Forest Act read with Section 11 and 20 of Forest Produce Land Routes Rules, 1978. The accused were called upon to show cause "whether they plead guilty or not". The statement(s) of the accused were recorded and all of them stated that they "plead guilty". On this plea of the accused, the learned trial Magistrate convicted the accused and sentenced each one of them. The accused were called upon to show cause "whether they plead guilty or not". The statement(s) of the accused were recorded and all of them stated that they "plead guilty". On this plea of the accused, the learned trial Magistrate convicted the accused and sentenced each one of them. The driver of the truck was sentenced to pay fine of Rs. 250, Raghubir Singh, authorised agent of the owner of the truck was sentenced to pay fine of Rs. 750 and contractor Durga Dass was sentenced to pay fine of Rs. 1,000. Accused were also sentenced to simple imprisonment till the rising of the Court. The sale poceed of Katha was directed to be confiscated to the State. 4. The petitionrs, feeling aggrieved by their conviction, filed an appeal before the learned Sessions Judge, which was taken up by the learned Additional Sessions Judge. The learned Additional Sessions Judge vide his orders dated 19th September, 2001, dismissed the appeal on the grounds that as the accused have been convicted on their plea of guilty therefore the appeal against conviction was not competent in view of the provisions of Section 375 of the Code of Criminal Procedure. Aggrieved the accused have filed the present revision petition. The case of the petitioners is : (a) the particulars of the offence, which allegedly the petitioners committed were not stated to them, as required under the law; (b) the alleged plea of guilty made by the petitioners was not recorded in their own words; (c) the learned trial Magistrate while recording the plea of the petitioners merely recorded "I plead guilty" and these words do not indicate as to what precisely the petitioners have said or pleaded when the notice of accusation was given to them. I have heard Mr. M.S. Chandel, learned Counsel for the petitioners and Mr. P.M. Negi, learned Assistant Advocate General. I have also perused the records. 5. Chapter 20 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), provides for trial of summons cases by Magistrates: 6. Section 251 of the Code, under this Chapter, contemplates that when the accused appears or is brought before the Magistrate, the particulars 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. 7. Section 251 of the Code, under this Chapter, contemplates that when the accused appears or is brought before the Magistrate, the particulars 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. 7. Section 252 of the Code, provides that if the accused pleads guilty, such an plea shall be recorded by the Magistrate "as nearly as possible, in the words used by the accused". The Magistrate may, in his discretion, convict him on such plea. 8. Sections 251 and 252 of the Code may be reproduced for the convenience: "251. Substance of accusation to be stated: 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. 252. Conviction on plea of guilty: If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon." 9. A bare perusal of Section 251 of the Code shows that though no charge is required to be framed against the accused but the accused has to be apprised of the accusation against him with a statement of particulars of offence, by the Magistrate to enable the accused to know what precise charge he is to meet. In other words, full particulars of the offences have to be stated to the accused and record must reflect what were the particulars which were stated and the answers the accused gave in his reply. 10. The provisions of Sections 251 and 252 of the Code are salutary enacted in the interest of the accused to enable him to defend himself. The Section mandates that the particulars of the offence with which the accused is charged must contain the ingredients of the offence for which the prosecution has been launched against him. See State of Kerala v. Raman, AIR 1962 Kerala 78 and Pursuttom Sabra v. State of Orissa, 1992 Cr.LJ. 2417 (Orissa). 11. The Section mandates that the particulars of the offence with which the accused is charged must contain the ingredients of the offence for which the prosecution has been launched against him. See State of Kerala v. Raman, AIR 1962 Kerala 78 and Pursuttom Sabra v. State of Orissa, 1992 Cr.LJ. 2417 (Orissa). 11. Under the provisions of Section 251 of the Code, the Magistrate is not only required to state the particulars of offence but also must enquire from the accused whether he pleads guilty or has any defence to make. Similarly, under Section 252 of the Code, it is the duty of the Magistrate to record the statement of the accused and such statement has to be recorded as nearly as possible in the words used by the accused. The requirement of this provision is mandatory and any violation, vitiates the trial. However, before the accused is convicted in his plea of guilty, the Magistrate has the discretion to accept the plea of guilty or not accept the same. In the present case, the learned trial Magistrate on 2.3.2001 observed: "There are sufficient grounds to proceed against the accused. Hence, notice of accusation for the commission of offence under Sections 41, 42 of IFA read with Sections 11 and 20 of Forest Produce Land Routes Rules 78 served upon all the accused which has been read over and explained to them. The accused persons plead guilty.” The learned Magistrate, in his wisdom gave time to rethink and the case was taken up after some respite. Notice of accusation, which are identical, put to the accused, reads: "NOTICE OF ACCUSATION That you all accused on 15.3.2000 at about 2PM transported 15 bags of Katha weighing about 7.27 Qtls from Katha Bhatti to Indora in Truck No. HIL 5145 without transport permit from the DRO and thereby committed an offence punishable under Sections 41, 42 of Indian Forest Act read with Sections 11 and 20 of Forest Produce Land Routes Rules, 1978 and within my cognizance. And you are hereby called upon to show cause whether you plead guilty or not. Sd/- JMIC, Nurpur Certified that the notice of accusation has been read over and explained to the accused in Hindi. Sd/-JMIC, Nurpur Statement of accused........s/o.........................aged..... r/o................ Q.I. Have you heard and understood the notice of accusation? Ans. Yes Sir Q.2. Do you plead guilty or not? Ans. I plead guilty. Sd/- JMIC, Nurpur Certified that the notice of accusation has been read over and explained to the accused in Hindi. Sd/-JMIC, Nurpur Statement of accused........s/o.........................aged..... r/o................ Q.I. Have you heard and understood the notice of accusation? Ans. Yes Sir Q.2. Do you plead guilty or not? Ans. I plead guilty. RO&AC Sd/- 2.3.01 JMIC, Nurpur" It may be seen that all the three petitioners were accused for having transported 15 bags of Katha weighing 7.27 qtls in Truck No. HIL 5145 on 15.3.2000 without any permit whereby they committed offence punishable under Sections 41, 42 of the Indian Forest Act read with Sections 11 and 20 of the Forest Produce Land Routes Rules, 1978. In the notice of accusation, particulars of offence were given to the accused in a mechanical manner and without application of mind by the learned trial Magistrate. The case of the Range Forest Officer was that one person apart from the driver was in the truck when the truck in question was intercepted and Katha was recovered from it. There was no allegation in the complaint so far third accused is concerned, though he happened to have licensed Bhatti. The "plea of guilty" recorded by the learned trial Magistrate shows j that he had asked whether they had understood the contents of notice of accusation and then he asked whether the accused pleads guilty or not. The answer was "I plead guilty". It is admitted position and is so reflected from the certificate appended by the learned trial Magistrate to the notice of accusation, neither of the accused knew English. Notice of accusation was read over and explained to the accused in Hindi. However, when they were asked to plead guilty, whatsoever was stated by each of the accused could not have been in English. There is nothing on record to suggest that plea recorded was explained to the accused and, therefore, by no stretch it can be said that the plea of guilt recorded by the learned Magistrate is either in words of the accused or near to those words. At the best what can be said is that the Magistrate drew his own conclusion from the statements made by the accused. Recording such a plea deprives the superior court of opportunity of examining the validity of the conclusion of the Magistrate or the plea which was made by the accused. At the best what can be said is that the Magistrate drew his own conclusion from the statements made by the accused. Recording such a plea deprives the superior court of opportunity of examining the validity of the conclusion of the Magistrate or the plea which was made by the accused. The Apex Court in Muhant Kaushalya Das v. State of Madras, (AIR 1966 SC 22) construing the similar provisions of Section 243 of 1898 Code, ruled that the plea of guilty by an accused should be recorded as nearly as possible in the words used by accused and the record must show as to what exactly the accused admitted before the Magistrate. Their Lordships held: "In our opinion, the requirements of Section 243 of the Criminal Procedure Code are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid." The Apex Court further held that requirement of this Section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It was observed: "It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstances whether he pleaded guilty or not and it is for this reason that the Legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension." Apparent as it is, the learned trial Magistrate did not comply with in letter and spirit, the mandate of Section 252 of the Code. Merely recording "I plead guilty" does not show or reflect the mind of the accused as to what the accused precisely stated. In the circumstances, the conviction on the plea of guilty is not legally sustainable. This apart, the order recorded by the learned trial Magistrate does not show or reflect for what offence the accused were convicted and sentenced and for what offences they confessed or for what offence they plead guilty. The order is cryptic, which reads: 2.3.01 Present : Ld. AD for State All accused with Sh. R.K. Jhanjee, Ld. Adv. There are sufficient grounds to proceed against the accused. The order is cryptic, which reads: 2.3.01 Present : Ld. AD for State All accused with Sh. R.K. Jhanjee, Ld. Adv. There are sufficient grounds to proceed against the accused. Hence, notice of accusation for the commission of offence under Sections 41, 42 of IFA read with Sections 11 and 20 of Forest Produce Land Routes Rules 78 served upon all the accused which has been read over and explained to them. The accused person plead guilty. Since, the accused person wants to confess their guilt, therefore, they are given time to re-think over the matter. Let the case be called after respite. Sd/- JMIC, Nurpur A bare perusal of the order, noticed above, shows that the accused were convicted without application of mind. The learned trial Magistrate did not even spell out the offence or offences for which they were convicted and as to for what offence they pleaded guilty Such a conviction on this ground alone is liable to be set aside. It was held that plea of guilty is only valid if it is "voluntary" and "intelligent" and the record discloses the same." (See Brady v. United States, 397 US 742: 90 SCT 1430). In result, this revision petition is allowed. The impugned order of learned Additional Sessions Judge (I), Kangra at Dharamshala dated 19.9.2001 and that of the trial Court dated 2.3.2001 are set aside. The case is remitted back to the learned trial Magistrate who shall restore the case at its original number and proceed to decide the same in accordance with law. The accused-petitioners shall appear before the learned trial Magistrate on 3.6.2002. The records of the case be sent back to the trial Court immediately. Revision petition allowed.