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2005 DIGILAW 766 (GUJ)

SUBAL SARKAR v. PURABI SARKAR

2005-11-02

A.B PAL

body2005
ORDER 1. The petitioners called in question the legality of the judgment and order dated 2-3-2005 rendered by the learned Sessions Judge, South Tripura, Udaipur in Criminal Revision No. 27(4)/2004 whereby the order dated 24-8-2004 of learned Chief Judicial Magistrate, South Tripura, Udaipur in CR 287 of 2003 on the question of local jurisdiction of the said Court to try an offence punishable under Section 498-A of the Indian Penal Code has been quashed with a direction to that. Court to proceed with the case in accordance with law. The background facts sans unnecessary details are as follows :- On 28-7-2003, the respondent herein Smt. Purabi Sarkar instituted a proceeding in the Court of learned Chief Judicial Magistrate, South Tripura, Udaipur by filing a written complaint against her husband Shri Subal Sarkar, the first petitioner herein and other petitioners alleging that since after her marriage on 13-5-2000 she was under pressure from the petitioners to bring dowry from her father to the tune of Rs. 50,000/- though her father at the time of marriage paid Rs. 25,000/- in cash and spent an amount of Rs. 1,25,000/- in the marriage which was beyond his financial capacity. Her unwillingness to approach her father for more money culminated to mental and physical torture by all the petitioners and when she was pregnant for three months, the first, sixth and seventh petitioners had taken her to Agartala, got her admitted in the I.G.M. Hospital and against her will forced termination of her pregnancy. The story of cruelty did not end there. On 23-3-2003 and 27-3-2003, the petitioners tortured her physically on demand of Rs. 50,000/- and then drove her away. Since then she had taken shelter with her parents and when all attempts to settle the dispute failed, she was compelled under the circumstances to formally lodge a complaint under Section 498-A of the Indian Penal Code. The learned Chief Judicial Magistrate after taking cognizance of the offence on 29-7-2003 and after examining the respondent wife under Section 200 of the Cr. P.C. issued bailable warrant of arrest. The learned Chief Judicial Magistrate after taking cognizance of the offence on 29-7-2003 and after examining the respondent wife under Section 200 of the Cr. P.C. issued bailable warrant of arrest. The proceeding continued till 16-8-2004 after examination of three witnesses on 18-10-2003 produced by the respondent wife and at that stage the learned counsel for the petitioners herein submitted a petition under Section 177 read with Section 462 of the Criminal Procedure Code advancing a prayer that as the alleged incident of physical and mental torture had taken place in the matrimonial house at Charilam under West Tripura District, the learned Chief Judicial Magistrate of South Tripura District had no territorial jurisdiction to entertain the complaint only because she was temporarily residing in the house of her parents within the local jurisdiction of that Court. By an order dated 24-8-2004, the learned Chief Judicial Magistrate, South Tripura, Udaipur disposed of the said petition after holding that it had no local jurisdiction to entertain such a complaint in the face of the admitted facts constituting the alleged offence having occurred within local jurisdiction of the competent Court of West Tripura District. Accordingly, all the accused persons were discharged after rejecting the complaint. The said judgment dated 24-8-2004 was, however, called in question by the respondent wife in the Court of learned Sessions Judge, South Tripura, Udaipur, who by impugned judgment and order dated 2-3-2005 reversed the findings of the learned C.J.M. after taking a view, which is backed by a decision of this Court in Bina Dey v. Prathiva Dey (Baidya), reported in 2003 (3) GLT 659 : (2003 Cri LJ 3618) that an offence under Section 498-A of the IPC being a continuing offence, the learned CJM, South Tripura, Udaipur had jurisdiction to entertain the complaint as the complainant was living at the relevant time with her parents within the local jurisdiction of that Court. The learned C.J.M. was further directed to proceed with the case and give it to its logical conclusion. This judgment and direction of the learned Sessions Judge has been assailed in the present petition. I have heard Mr. B. Chowdhury, learned counsel for the petitioners and Mr. T. D. Majumder, learned counsel for the respondent. The learned C.J.M. was further directed to proceed with the case and give it to its logical conclusion. This judgment and direction of the learned Sessions Judge has been assailed in the present petition. I have heard Mr. B. Chowdhury, learned counsel for the petitioners and Mr. T. D. Majumder, learned counsel for the respondent. The only question, which has fallen for consideration in the present proceeding, is whether under the facts and circumstances of the case noted above, the learned CJM, South Tripura has local jurisdiction to entertain the complaint lodged by the respondent wife. The factual position which is necessary for disposal of this controversy regarding the residential address of the parents and in-laws of the respondent and that after the alleged physical and mental torture she had taken shelter with her parents within the local jurisdiction of the learned CJM, South Tripura, Udaipur are not in dispute. It is contended by the learned counsel for the petitioners herein that the allegations of the wife, which are per se without any basis having taken place in the matrimonial house at Charilam within the local jurisdiction of the learned CJM, West Tripura, Agartala, the proceeding instituted in the Court of learned Chief Judicial Magistrate, South Tripura, Udaipur is not maintainable on the question of jurisdiction only. In support of this submission, the learned counsel has placed reliance on the decision of the Supreme Court in Y. Abraham Ajith v. Inspector of Police, Chennai, reported in 2004 AIR SCW 4788 : (2004 Cri LJ 4180), In that case, the question of local jurisdiction had arisen for decision of the Court under similar circumstances as the present one and the Apex Court proceeded to decide the question after examining the factual situation of that case on the anvil of the provisions contained in Section 177 and 178 of the Cr. P.C. The above two provisions may be gainfully quoted below :- "177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 178. Place of inquiry or trial. P.C. The above two provisions may be gainfully quoted below :- "177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 178. Place of inquiry or trial. - (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas." After taking a view that the expression 'cause of action' is not a stranger to criminal cases, the Apex Court reiterated the settled law that 'cause of action' consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a Court of law. To understand and appreciate the importance of cause of action, which is of much relevance in the present case, the views expressed by the Apex Court on the said expression, are quoted below :- "15. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action". 18. In Halsbury's Laws of England (Fourth Edition) it has been stated as follows :- "Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court to a remedy against another person. 18. In Halsbury's Laws of England (Fourth Edition) it has been stated as follows :- "Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court to a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action." "19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned Magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No. 2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed." It would thus appear from the factual matrix of the above case that no part of cause of action, which is a bundle of facts, constituting the alleged offence did arise in Chennai and, therefore, it was held that the concerned Magistrate in Chennai had no jurisdiction to deal with the matter. In a similar case, this Court in Crl. Rev P. No. 33 of 2005 by an order dated 7-4-2005 (T. Vaiphei, J.) placing reliance on the decision of the Apex Court noted above quashed the proceeding pending before the learned Judicial Magistrate Ist Class, Sonamura on the ground that no part of the cause of action had arisen within the jurisdiction of that Court. The learned counsel for the respondent, however, made a submission that the offence punishable under Section 498-A of the IPC being a continuing one, it is open to the complainant wife to choose the appropriate forum and institute a proceeding in the Court having local jurisdiction over the place where she has been temporarily residing with her parents. The learned counsel for the respondent, however, made a submission that the offence punishable under Section 498-A of the IPC being a continuing one, it is open to the complainant wife to choose the appropriate forum and institute a proceeding in the Court having local jurisdiction over the place where she has been temporarily residing with her parents. In order to buttress this submission reliance has been sought from the decision of this Court in Bina Dey v. Prathiva Dey (Baidya), reported in 2003 (3) GLT 659 : (2003 Cri LJ 3618). In that case the alleged cruelty had taken place at Mariani in the District of Jorhat while the proceeding under Section 498-A, IPC was instituted in the Court at Silchar. After discussing the decisions of the Delhi High Court in Mohan Lal v. State, reported in 2000 Cri LJ 3762, Allahabad High Court in Vijay Ratan Sharma v. State of U.P., reported in 1988 Cri LJ 1581 and of Rajasthan High Court in Jagdish v. State of Rajasthan, reported in 1998 Cri LJ 554, this Court agreeing with the ratio laid down by the Allahabad and the Rajasthan High Court and disagreeing with that of the Delhi High Court held, in the facts and circumstances of the case, that it would amount to deprivation of right to prosecute properly if the deserted lady, who is compelled to take shelter with her parents, cannot institute a proceeding in the Court having jurisdiction where she is temporarily residing. It was thus held that in an offence punishable under Section 498-A IPC, the place where the wife is forced to take shelter has the jurisdiction to try the offence punishable under Section 498-A of the IPC. It needs no reiteration that the legal position on the question of local jurisdiction of a Court in entertaining a complaint such as this has been finally laid down by the Apex Court with reference to the provisions of Sections 177 and 178 of the Cr. P.C. and the only thing, which is required to be decided by the Court in every such case is to place the factual position on the anvil of the ratio laid down by the Apex Court as discussed above. P.C. and the only thing, which is required to be decided by the Court in every such case is to place the factual position on the anvil of the ratio laid down by the Apex Court as discussed above. The bundle of facts, which constitutes the cause of action varies from case to case and if it can be shown that a part of such cause of action has taken place in the Court where the proceeding has been instituted, it can be said following the above principle that such Court has jurisdiction to entertain a complaint. In the case on hand, several allegations of physical and mental torture have been brought forth in the complaint petition and none of such facts is alleged to have taken place within the jurisdiction of the learned Chief Judicial Magistrate, South Tripura, Udaipur. Though the details of the facts situation of the case in Bina Dey, (2003 Cri LJ 3618) (Gau) (supra) has not been narrated in the judgment, it is to be presumed in the light of the principle laid down by the Supreme Court in Y. Abraham (2004 Cri LJ 4180) (supra) that at least a part of the cause of action must take place within the jurisdiction of the Court where the proceeding has been instituted, the above decision of this Court has been rendered in the particular facts and circumstances of that case taking into consideration the place where the cause of action and the bundle of facts constituting the same has occurred. From the above discussion it would be evident that if the allegations of physical and mental torture are to be believed in toto as alleged by the respondent wife, it has to be admitted that the entire episode had taken place in her matrimonial house, not in her parental house or in any place within the jurisdiction of South Tripura District and, therefore, the learned Chief Judicial Magistrate, South Tripura has got no jurisdiction to entertain the complaint instituted by her. For the aforesaid reasons, this petition has to be accepted and accordingly, the same is allowed setting aside the judgment and order of the learned Sessions Judge, South Tripura, Udaipur impugned herein. For the aforesaid reasons, this petition has to be accepted and accordingly, the same is allowed setting aside the judgment and order of the learned Sessions Judge, South Tripura, Udaipur impugned herein. The respondent wife shall, however, be at liberty to institute a fresh proceeding in the Court at Agartala, which has jurisdiction over the place where her matrimonial house is located and where allegedly all the incidents of physical and mental torture had taken place. Petition allowed. 46. We are, therefore, in full agreement with the contention, advanced on behalf of the accused persons and by learned amicus curiae in this Group of Matters, that the observations and the conclusions reached by the learned single Judge in that case of State of Gujarat v. Uttam Bhikhabhai Prajapati (1992 Cri LJ 626) (supra), arising from the offences punishable under the B.P. Act, are not supportable and acceptable as submitted and desired by the State. We find substance in the plea that the real forensic perception and correct jurisprudential exposition was not brought to the notice of the Court in those cases as a result of which those observations and conclusions are contrary to the plain and proper propositions of the provisions of proviso and case law laid down by the Hon'ble Apex Court in the cases referred to, in this judgment by us and relied on by the amicus curiae, learned Senior Advocate Mr. P. M. Thakkar. 47. Where there are mitigating or extenuating circumstances present or available on the record, which are peculiar and special to the accused and which may justify imposition of any sentence including "Till Rising", less than the prescribed minimum to the accused, it is always open for the Court to exercise the discretion, in terms of the provisions incorporated in the proviso. What is special and adequate will have to be judged by the trial Court, objectively, depending upon the facts of each case. If the conditions specified in the proviso are present, the Court has power to award less than the minimum sentence. Of course, for that, there must be special and adequate reasons and such reasons should be recorded in the judgment. 48. The Hon'ble Apex Court in State of Orissa v. Janmejoy Dinda, (1998) 3 SCC 63 : (1998 Cri LJ 2046), fully supports the view, which we propose to take in this Group of Matters. Of course, for that, there must be special and adequate reasons and such reasons should be recorded in the judgment. 48. The Hon'ble Apex Court in State of Orissa v. Janmejoy Dinda, (1998) 3 SCC 63 : (1998 Cri LJ 2046), fully supports the view, which we propose to take in this Group of Matters. In that case the question was interpretation of the proviso contained in Section 27(b)(ii) of the "Drugs and Cosmetics Act, 1940". It was held in that case that the proviso to Section 27(b)(ii) of the Act confers discretion and jurisdiction on the Court to reduce the sentence of imprisonment less than the minimum prescribed, if the conditions specified in the provisos are present. 49. In Gurmukh Singh v. State of Punjab, AIR 1972 SC 824 : (1972 Cri LJ 654), while considering and interpreting the proviso to Section 16(1) of the Prevention of Food Adulteration Act, 1954, it has been held that though offences for adulteration of food must be severely dealt with, no doubt, depending upon the facts of each case, which cannot be considered as precedents in other cases. In that instant case, having regard to the fact that the offence was only for non-renewal of the licence within a reasonable time and the appellants were only petty traders, a mitigation in this sentence under the proviso is justified. This proposition, also, supports the view, which we propose to take in this judgment, that when discretionary powers exist special and adequate reasons of the case and peculiar to the accused ought to be considered. 50. The second reliance by the State is on the decision in the case of State of Gujarat v. Somani Jamaji, 1994 Cri LJ 3458 (supra), wherein, the respondent came to be tried for the alleged offences, punishable under Section 66(1)(b) of the B.P. Act (For Possession) on his raising plea of guilty was convicted for the same and sentence "till the rising of the Court and to pay a fine of Rs. 20". While dealing with that Criminal Appeal, the learned single Judge observed that though the minimum sentence is provided in the Act, the learned trial Magistrate has awarded lesser sentence and such a "plea-bargaining" is not legal and deprecated the practice adopted by the Magistrate. 51. 20". While dealing with that Criminal Appeal, the learned single Judge observed that though the minimum sentence is provided in the Act, the learned trial Magistrate has awarded lesser sentence and such a "plea-bargaining" is not legal and deprecated the practice adopted by the Magistrate. 51. The third decision relied on by the State is the case of V. K. Bhatt, Provident Fund Inspector v. M/s. Aryodaya Ginning Mills, Ahmedabad, (1992) 2 Guj LR 38. The learned single Judge, in this case, while dealing with the Criminal Revision Application in the matter under Employees Provident Fund Act, prescribed a pro forma to "plead guilty". The observations made in this decision and the judicial prescription of the pro forma for pleading guilty is, seriously, criticised on behalf of the accused and, also, by the learned amicus curiae. 52. As regards judicial prescription of a format for recording the plea of guilty by the learned single Judge in V. K. Bhatt case ((1996) 2 Guj LR 38) (supra), the learned amicus curiae has rightly submitted that the specimen format for the purpose of pleading guilty and praying for mercy in sentence as a condition precedent is, also, not in consonance with the Criminal Jurisprudence and specific provisions provided in the Code of Criminal Procedure, 1973. In para-12 of the said decision, it has been observed : "12. .........Accordingly, what occurs to this Court is laying down some conditions as conditions precedent for the accused to submit the purshis at the time of pleading guilty. If that is done and scrupulously followed, in all probability, neither the accused concerned dare even to pretend to plead guilty, nor the Court haunted by disposal mania would render wander away from its judicial path in accepting the same by imposing by flea-bite sentence, sometimes inadvertently, may be, sometimes advertently, even in not imposing the statutory minimum sentence prescribed under the Act. Accordingly, it is hereby ordered that - "No Court shall accept "plea of guilty" tendered by the accused person, more particularly, in cases where in the statute has prescribed minimum sentence unless and until, he submits the purshis in the specified form prescribed hereunder for pleading guilty along with adequate and special reasons, if any, for taking a lenient view of the matter, in the matter of awarding sentence." SPECIMEN FORM FORM OF PUSHIS PLEADING GUILTY AND PRAYING FOR MERCY IN SENTENCE In the Court of the learned Magistrate at . . . . . . . . . . . . . . . . . . . . . . . . . . Court No. . . . . . . . . . . . . . CRIMINAL CASE NO. . . . . . . . . . ../1999 . . . . . . . . . . . . State/Complainant v. . . . . . . . . . . . . . Accused Sub. :- "Plead guilty and Mercy in the matter of sentence." Respected Sir, I, ......................................... accused No. ................. in this case state that I have read/read over the complaint filed against me for the alleged offence(s) punishable under Sections .............................. of the ................. Code/Act. 2. I have also been read-over and explained the charge against me, which is as under :- CHARGE ......................................................................................... ......................................................................................... 3. I have also been informed by the learned Magistrate that for the alleged offences, the statutory minimum prescribed is SI/RI for not less than the ........... years/months and/or fine of Rs. ........... or both. 4. I have also been further informed by the Court that even if I plead guilty, it has no option to impose less than the minimum sentence prescribed under the Act; as stated above, unless I have some adequate and special reasons for praying less than the said minimum sentence. 5. Accordingly, having fully understood the consequences of "pleading guilty" I voluntarily plead guilty. I have not been promised to impose the lighter sentence, till rising of the Court and/or some small amount of fine only, if I pleaded guilty. 6. That I on being convicted on pleading guilty pray that having regard to the following "adequate and special reasons" Your Honour be kind enough to impose less than the statutory minimum sentence prescribed. I have not been promised to impose the lighter sentence, till rising of the Court and/or some small amount of fine only, if I pleaded guilty. 6. That I on being convicted on pleading guilty pray that having regard to the following "adequate and special reasons" Your Honour be kind enough to impose less than the statutory minimum sentence prescribed. ADEQUATE and SPECIAL REASONS (i) For less than the minimum period of imprisonment. (ii) For less than the minimum amount of fine. ......................................................................................... ......................................................................................... ......................................................................................... (If reasons are more, then separate sheet can be annexed.) 7. On the basis of my above submissions, my plea of guilty be kindly accepted and I be imposed with some lighter sentence. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Signature of the Signature of the Complainant Accused Date :- Date :- Before me - - - - - - - - - - - - - - - - - Signature of the learned Magistrate Date :- It is further observed in para 12.1 as under :- "12.1 It shall be the duty of every Court before which the accused pleads guilty, to record the same in the specimen form of purshis prescribed hereinabove, and accordingly, not to record the plea of guilty as directed would not only render the said plea illegal but would also render the concerned learned Magistrate liable to proceedings for judicial misconduct." ARRAIGNMENT AND ITS PREMISE 53. It is very well known that the plea of the accused is an event occurring at the general trial Court level that formally initiates the trial process. As such, it is the offence again on which the accused is given an opportunity to answer the accusation. Here, at this stage, the accused is required to enter a plea. Punishment is held in open and generally, it begins with a formal reading of the accusation or indictment or charge, by which the accused is again, formally, advised of the charges against him. The accused is, therefore, required to answer the charge by entering a plea, at this juncture. Punishment is held in open and generally, it begins with a formal reading of the accusation or indictment or charge, by which the accused is again, formally, advised of the charges against him. The accused is, therefore, required to answer the charge by entering a plea, at this juncture. This is the right of the accused and no doubt, the plea may take one of the two forms : One, he may deny the accusation or charge against him, or another, he may plead guilty to the crime, as charged. 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 thereon. 54. In the criminal matters as in this Group of Appeals, cases are tried by the Magistrate under Chapter-XX of the Code of Criminal Procedure, 1973, which deals with the trial of Summons Cases by the Magistrate, the statutory mechanism and the frame of Chapter-XX, the procedures for Summary Trial have been prescribed in Chapter-XXI of the Code of Criminal Procedure and the principles of Criminal Jurisprudence would not permit the prescription of the format by judicial fiat for the purpose of mode and manner for raising the "plea of guilty". The Court of law cannot add or subtract or ignore the statutory provisions incorporated in the enactment by the legislature in its wisdom. The making of a law or an enactment is a constitutional prerogative of the competent legislatures. 55. The function of the Court is to interpret the provisions of law. Law and statute making is exclusively within the jurisdictional domain of the legislatures. The Court cannot re-write any provision of any law by any judicial fiat or direction. Even the Constitutional Court, dealing with the constitutionality of the provision, cannot create or take away by adding or subtracting from any of the provisions employed by the competent legislatures. Even the Constitutional Courts, while interpreting the correct meaning and real object of the law by its constitutional jurisdictional interpretation and adjudication, can propound and interpret correct law. Therefore, it is one of the fundamental principles, that no Court can re-write or reframe the provisions contained in the enactment made by the competent legislatures. Even the Constitutional Courts, while interpreting the correct meaning and real object of the law by its constitutional jurisdictional interpretation and adjudication, can propound and interpret correct law. Therefore, it is one of the fundamental principles, that no Court can re-write or reframe the provisions contained in the enactment made by the competent legislatures. The enthusiasm with which the direction to record the "plea of guilty" and prayer for mercy by prescribing specimen proformas for pleading guilty and praying for mercy in sentence and the manner and mode in which the specimen form is required to be filled up and signed by not only the accused but also the complainant, as well as, the prosecutor concerned in the case before the trial Magistrate, in our opinion, is nothing but re-writing and adding in the provisions of an enactment and, therefore, such a direction or judicial prescription of a form against the specific statutory provision, obviously, would be impermissible, unsustainable and not legal. 56. To an extent, it makes an inroad on the statutory rights and duties of the complainant, the accused and the Court. A general judicial fiat that no Court would accept the plea of guilty tendered by the accused person more particularly, in cases, wherein, the statute has prescribed a minimum sentence unless and until the accused submits the purshis in the "specimen form prescribed in the judgment for pleading guilty" along with adequate and special reasons, is not supportable, being contrary and not in consonance with the statutory provisions and outside the competence of the judicial adjudication. Such a direction and prescription of a form, contrary to the provisions specifically provided in the Code of Criminal Procedure would be incompetent and impermissible and illegal. 57. Though we appreciate the enthusiasm, anxiety and innovation to place in focus the said mal-practice in raising "plea of guilty", we are unable to jurisprudentially and by settled proposition of law, uphold and maintain with utmost due respect, to the learned single Judge, such a judicial fiat by enblock direction, to all trial Courts in all criminal cases, where minimum sentence is prescribed, and "plea of guilty" is raised. The fundamental canons of criminal jurisprudence much less against statutory provisions would not permit or allow such a view or perception and prescription of format. The fundamental canons of criminal jurisprudence much less against statutory provisions would not permit or allow such a view or perception and prescription of format. Therefore in our opinion the observations and directions contained in paras 12 and 12.1 in V. K. Bhatt's case ((1996) 2 Guj LR 38) (supra) are, also, not compatible with the statutory provisions and, therefore, they cannot be sustained, being beyond the jurisdictional competence and consequently not legal and binding on trial Magistrates. STATUTORY PRESCRIPTION FOR RECORDING PLEA OF GUILTY 58. Let us at this stage have a close look into the statutory and mandatory provisions for trial and recording of plea in trial of cases before the Magistrate. Since we are concerned with cases which are arising from the trial before the Magistrates the procedure is prescribed for trial of warrant cases by the Magistrate in Chapter-IX of the Cr. P.C. which includes cases instituted on a police report, as well as, cases instituted otherwise than on police report. 59. It is interesting to note that sub-section (2) of Section 240 provides that the charge shall then be read and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. Section 241 provides that if the accused pleads guilty Magistrate shall record the plea and may in his discretion convict him thereon. Now it is not obligatory on the part of the Magistrate to convict him even if the accused pleads guilty, he may proceed with the trial. 60. In Chapter-XX of the Cr. P.C., the procedure is prescribed for the trial of summons - cases by the Magistrates. Section 251 in this Chapter provides that, the substance of the accusation shall be stated to the accused 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. Whereas, Section 252 provides for conviction of plea of guilty. If the accused pleads guilty the Magistrate is obliged to record the plea, "as nearly as, possible" in the words used by the accused and may in his discretion convict him thereon. Section 252 is corresponding Section to old Section 243 of the old Repealed Code of 1898. Whereas, Section 252 provides for conviction of plea of guilty. If the accused pleads guilty the Magistrate is obliged to record the plea, "as nearly as, possible" in the words used by the accused and may in his discretion convict him thereon. Section 252 is corresponding Section to old Section 243 of the old Repealed Code of 1898. It becomes quite clear and unambiguous from the plain text and tenor of the Section 252, that the trial (Magistratial) Court is bound to record the plea, as nearly as, possible in the words used by the accused but is not bound to convict him upon such a plea. 61. In our opinion it is a mandatory provision. It will be material to highlight here that the requirements of Section 252 are mandatory in character, we are reinforced by the decision of the Hon'ble Apex Court in Mahant Kaushalya Das v. State of Madras, reported in AIR 1966 SC 22 : (1966 Cri LJ 66). This Court has, also, followed the principle enunciated in the said decision in a reported decision in Chhotu Bhagirath v. State of Gujarat, 1972 Cri LJ 548. The judicial prescription of recording a plea in a prescribed format as directed in V. K. Bhatt's case (supra) by the learned single Judge with utmost respect within our commands, if followed would run counter to the plain meaning and interpretation of Section 252, the provisions of which are mandatory in character. 62. Probably, the attention of the learned single Judge was not drawn to the said provision of Section 252 and the provisions of Section 262. The Section 262 of the Cr. P.C. provides a procedure in summary trial. In the summary trial the procedure prescribed for the trial of summons-case is required to be followed. The case on hand and the three decisions relied on by the State are the cases falling within the procedures of Chapter-XX and XXI of the Code relating to trial of summons case by the Magistrate. It is in this respect and in this context the observations and directions of the learned single Judge in the case of V. K. Bhatt ((1996) 2 Guj LR 38) (supra) with respect are contrary to the provisions of law and the prescribed format cannot be maintained or sustained as legal and binding to the trial Magistrates. 63. It is in this respect and in this context the observations and directions of the learned single Judge in the case of V. K. Bhatt ((1996) 2 Guj LR 38) (supra) with respect are contrary to the provisions of law and the prescribed format cannot be maintained or sustained as legal and binding to the trial Magistrates. 63. It will be also material to refer the provisions contained in para 103 of Criminal Manual provided in Chapter-IV - for summary trials which reads, here as under :- "Though it is not necessary to frame a formal charge in cases tried, summarily, it is always desirable that the ingredients of the offence, as also, the particulars thereof with which accused is charged are clearly stated to him. In case the accused pleads guilty the Magistrate should question the accused, in respect of each particular of the offence and record in full his answer to the same." 64. In Mahant Kaushalyadas case (1966 Cri LJ 66) (supra), the accused was facing trial for the offence under Section 4(1)(a) of the Madras Prohibition Act. At the initiation of the trial, the particulars of the offences were explained to the accused by the interpreter, it was translated to the accused in Hindi by one Shri M. Sukumara Rao, Bench Clerk of that Court, who had passed examination in Hindi. The "plea of guilty" by the accused was also interpreted to the Court by the same gentleman. The trial Court found accused guilty for the said offence, charged against him, and upon conviction, the sentence of one year's rigorous imprisonment and a fine of Rs. 50 was inflicted on the accused, which was confirmed by the Madras High Court in Appeal. On behalf of the accused, the plea was raised before the Hon'ble Supreme Court in an Appeal, which was brought by certificate granted under Article 134-1C of the Constitution, from a judgment of the Madras High Court that, he was not afforded with fair and just trial, of course he had raised the "plea of guilty". It was contended that there was miscarriage of justice. 65. It was contended that there was miscarriage of justice. 65. It was held by the Hon'ble Supreme Court, considering the record, that the admission of the accused-appellant had not been recorded, "as nearly as, possible in the words used by him" as required by Section 243 of the Criminal Procedure Code, 1898, a corresponding provision in the Code of 1973 is Section 252. The conviction was set aside on the ground that material mandatory requirements of old Section 243 of the old Code were not observed and, therefore, there was a violation of the said provision, vitiating the trial, and rendered the conviction legally invalid. It is, therefore, very obvious that Section 252 (old Section 243) is mandatory and the requirement of Section is not a mere empty formality but is a matter of substance intended to secure and serve proper administration of justice. It is, therefore, an incumbency upon the Court to follow the mandate of Section 252 while recording plea, "as nearly as possible in the words used by the accused" as required under this Section. How could such a statutory mandatory provision be substituted by a judicial direction or adjudication by prescribing special format in this behalf? 66. The case of Mahant Kaushalyadas (1966 Cri LJ 66) (supra) was also followed by the learned Single Bench Judge of this Court in Chhotu Bhagirath v. State of Gujarat, 1972 Cri LJ 548 (Coram : T. U. Mehta, J. as His Lordship then was). In that case, also, there was a summary trial, as in the case of the criminal appeals in this group. The reference made by the Court of Sessions Judge, Rajkot, was allowed, holding that trial of the accused was vitiated and order of conviction and sentence passed by the trial Court was set aside, holding that old Section 243 (new Section 252) provided that if the accused "pleads guilty", the said plea should be recorded by the Magistrate, "as nearly as, possible in the exact words used by the accused". It was further observed and held that if the Magistrate fails in doing so then obviously he does not provide any record to the appellate or revising authority to know any of the actual words, the accused had pleaded guilty and also to judge whether the said words really amounted to a plea of guilty or not. 67. It was further observed and held that if the Magistrate fails in doing so then obviously he does not provide any record to the appellate or revising authority to know any of the actual words, the accused had pleaded guilty and also to judge whether the said words really amounted to a plea of guilty or not. 67. It is, therefore, evident that the reason behind the mandatory provisions of Section 252 (old Section 243) requires the Magistrate to record the plea of accused, "as nearly as possible" in his own words so that it could be evaluated and examined by the higher forum, as to whether there was actual plea of guilty or not and the procedure contemplated is very important and substantial because the plea of guilty raised by an accused would debar him from preferring an appeal against his conviction. Under these circumstances, it would not be open to any Court to disregard the specific provision contained in Section 252 of the new Code (old Section 243), and non-compliance of this provision would, therefore, not be controlled even by the provisions contemplated by Section 465 or Section 537. It is, therefore, incumbent upon the Court to record, whenever, an accused in a summary trial raises the, plea of guilty, so as to place on record, what was the exact plea with a view to afford protection to the accused and proper administration of justice. It is, in this context, how could a Court with a judicial adjudication or direction prescribe new format for recording the plea of guilty and to be also signed by the complainant contrary to constitutional safeguards for the offender and statutory mandate? CONTOURS AND CONTRADICTION OF PLEA-OF-GUILTY AND "PLEA-BARGAINING" 68. We make it clear that the grievance and voice raised by the learned single Judge against impermissible "plea-bargaining" is not, hereby, sought to be belittled or in any way intended to be diluted. But the 'plea-bargaining' and the raising of "plea of guilty", both things should not have been treated, as the same and common. There it appears to be mixed up. But the 'plea-bargaining' and the raising of "plea of guilty", both things should not have been treated, as the same and common. There it appears to be mixed up. Nobody can dispute that "plea-bargaining" is not permissible, but at the same time, it cannot be overlooked that raising of "plea of guilty", at the appropriate stage, provided in the statutory procedure for the accused and to show the special and adequate reasons for the discretionary exercise of powers by the trial Court in awarding sentences cannot be admixed or should not be treated the same, and similar. Whether, "plea of guilty" really on facts is "plea bargaining" or not is a matter of proof. Every "plea of guilty", which is a part of statutory process in criminal trial, cannot be said to be a "plea-bargaining" ipso facto. It is a matter requiring evaluation at factual profile of each accused in criminal trial before reaching a specific conclusion of it being only a "plea-bargaining" and not a plea of guilty simpliciter. It must be based upon facts and proof not on fanciful or surmises without necessary factual supporting profile for that. 69. It is unquestionable that concept of "plea-bargaining" is not recognised in any jurisdictions in our country. Therefore, it is illegal. The Hon'ble Apex Court has time and again raised clear and consistent voice, in host of the judicial pronouncements, and, also, has come down, heavily, against the trick and play of the "plea bargaining". Therefore, so far so "plea bargaining" is held not only illegal and unconstitutional but also intending to encourage the complaint, collusion and pollution of the poor punt of justice. Therefore the observation by the learned single Judge in those cases against the "plea-bargaining" and short circuiting the proceedings cannot be questioned. 70. However, as observed by us, hereinabove, that every "plea of guilty" during the course of observance of the mandatory procedure prescribed in Code and particularly in Sections 228(2), 240(2), 252 and also in Section 253 for the trial of case by the Magistrates, when plea of guilty is recorded as per the procedure prescribed cannot be said to to be a "plea-bargaining". In a criminal trial there must be justifiable material on record and any assumption, presumption or surmise having no nexus with the factual profile of a given case of each accused cannot be sustained. In a criminal trial there must be justifiable material on record and any assumption, presumption or surmise having no nexus with the factual profile of a given case of each accused cannot be sustained. It is matter of proof like any other proof of fact, as provided in the Evidence Act. It cannot be contended that, whenever, the "plea of guilty" is raised, then less than minimum sentence awarded though may be in the light of "special and adequate reasons" peculiar to the each accused and in the factual and contextual profile of a given cases is only "plea-bargaining". It has to be proved and shown to the satisfaction of the Court. It cannot be straightway deduced. In the said case before the learned single Judge, there may be supporting and justifiable material to hold it as "plea-bargain". But each and every case cannot be termed or treated same way. 71. However, we are, also, tempted to state and suggest that in view of the inordinate delay in disposal of cases in general and criminal cases in particular, and huge backlog of cases in Courts, in the changed circumstances, introduction of concept of "plea-bargaining" in our Criminal Jurisprudence and jurisdiction requires re-thinking and re-consideration. In some jurisdictions in other countries, "plea-bargaining" in some of the cases, where larger interest is not involved and when the dispute revolves around the individuals, has been, successfully, introduced. It will be interesting to refer here the concept of "NOLO CONTENDERE", practised in some of the jurisdictions like the United States. 72. Let it be reiterated that at present, there cannot be any question that "plea-bargaing" is not recognised, so far and is not permissible. Whether "plea of guilty" is "plea-bargaining" or not, will be a matter of fact to be examined in each case, from the factual matrix of the case and totality of the context and entire profile. It cannot be contended that every "plea of guilty" is always plea-bargaining in case of each case and each accused. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible: in those cases based on facts and proof thereof. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible: in those cases based on facts and proof thereof. Thus it is a matter of proof and evaluation of evidence in each case. DOCTRINE OF NOLO-CONTENDERE : PRACTICE AND PROMINENCE : 73. In United States, in some jurisdictions, the plea of "Nolo Contendere" is available. "Nolo Contender" or "no contest" is not an 'admission of guilt', but rather a 'willingness to accept declaration of guilt', rather than to go to trial. It is treated as a guilty plea to serve one purpose not served by a guilty plea in a subsequent civil suit possibly arising out of same event. Guilty plea is admissible as evidence against the defendant (accused) but plea of "Nolo contendere" is not. It may be stated that the expression, "defendant" is used in India in the civil dispute against whom civil action is taken whereas in United States, this expression is used in criminal trial also, and, thus, the defendant is an accused. David Gorden has observed that the latin word, 'nolo' means 'I do not choose it'. This statement, variously, defined as 'plea of no contest' and 'not a plea of guilty' does not mean that defendant will not fight the same charges against him of the same as that of guilty plea. It admits the fact charged, but cannot be used as a confession of guilt in other proceedings. Acceptance of such a plea by a Court is discretionary. 74. The judgment of conviction entered on a plea of "Nolo Contendere", may be used, by the accused as a basis of 'plea of double jeopardy', since conviction and punishment, after the "Nolo Contendere" plea operates for the protection of the accused against subsequent proceedings, is as full as a form of conviction or an acquittal after the plea of guilty or not guilty. 75. As held in "Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807", the plea of "Nolo Contendere" sometimes called, also, "Plea of Nolvut" or "Nolle contendere" means, in its literal sense, "I do not wish to contend", and it does not origin in early English Common Law. 75. As held in "Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807", the plea of "Nolo Contendere" sometimes called, also, "Plea of Nolvut" or "Nolle contendere" means, in its literal sense, "I do not wish to contend", and it does not origin in early English Common Law. This doctrine is, also, expressed as an implied confession, a quasi-confession of guilt, a plea of guilty, substantially though not technically a conditional plea of quality, a substitute for plea of guilty, a formal declaration that the accused will not contend, a query directed to the Court to decide on plea-guilt, a promise between the Government and the accused, and a Government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only. 76. Be it noted, that raising of plea of "Nolo Contendere" is not ipso facto, a matter of right of the accused. It is within the particular discretion of the Court concerned to accept or reject such a plea. However, if the Court accepts such plea, it must do so unqualifiedly. It is, therefore, clear that if such plea is once accepted, by the Court, the accused may not be denied, his right to raise such plea. The Court cannot accept such plea having rights of the accused and determination of facts on any questions of law. Of course, the discretion of the Court, if plea is accepted, has to be exercised in light of special facts and circumstances of the given case. It is, also, held at times that such discretion vested in the Court has to be used only when special considerations are present. It is, also, important to mention, at this stage that in the absence of statutory provisions to the contrary, consent of a prosecutor is not required as a condition for refusing the plea of 'Nolo Contendere' by the Court. And the fact that the prosecutor's consent is not generally required would not tantamount to non-consideration of his version or attitude. The Court is required to consider the prosecutor's version as an important factor in influencing the Court in deciding whether such plea should be accepted or not. 77. And the fact that the prosecutor's consent is not generally required would not tantamount to non-consideration of his version or attitude. The Court is required to consider the prosecutor's version as an important factor in influencing the Court in deciding whether such plea should be accepted or not. 77. Upon the acceptance of a plea of "Nolo Contendere" for the purpose of the case in which such a plea is made, it becomes an implied confession of the guilty equivalent to a plea of guilty; that is, the incidence of plea. So far as a particular criminal action in which the plea is offered is concerned, rather than the same, as of a plea of guilty, of course, it is not necessary that there should be adjudication by the Court that the party whose plea is accepted is guilty, but the Court may immediately impose sentence. This proposition is very well elucidated in "United States v. Risfeld, 340 US 914." However, it may be noted a new dimension was evolved in Lott v. United States, 367 US 421, where the Court, after stating that the plea is tantamount to an admission of a guilt for the purpose of the case, added that the plea itself, does not constitute a conviction and hence, is not a determination of guilt. As found from some of the judicial pronouncements, it is beyond the purview of the Court once a plea of "Nolo Contendere" is needed to make in adjudication to the guilt of the accused. 78. The plea of "Nolo Contendere", barring a few percentages of cases, have been recognised in the administration of criminal justice in many countries, including the United States, and has resulted into substantial reduction in the workload of the criminal justice system. Such a plea, it has been stated, has a success of practical aspect over the technical one. In the criminal justice delivery system, should India not consider the introduction and employment of such a plea when Courts are flooded with astronomical arrears, the trial life-span is inordinately long and the expenditure is very heavy, as an effective alternative dispute resolution in certain identified criminal cases? In the criminal justice delivery system, should India not consider the introduction and employment of such a plea when Courts are flooded with astronomical arrears, the trial life-span is inordinately long and the expenditure is very heavy, as an effective alternative dispute resolution in certain identified criminal cases? This issue, undoubtedly, requires serious consideration at this juncture, and a trial on experimental basis, also, when we are at the crossroads and Courts are obliged to engage and address itself in early, easy, less-expensive and simple way of disposal of criminal cases in the criminal justice system. Of course, the introduction of such a system will have to be considered at the level of Government by appropriate legislative measures. However our voice shall not be a cry in wilderness moreso when innovative and dynamic strategies are evolved for "Excellence in Judiciary" in 2005, by My Lord Chief Justice of Supreme Court, Hon'ble Mr. Justice R. C. Lahoti. We, are concerned collectively, collaboratively and constructively and, therefore, we ought to take seriously and strive assiduously and honestly for such ingeniously and innovatively ordained by My Lord, Chief Justice of Supreme Court, Hon'ble Mr. Justice R. C. Lahoti, as a novel and noble, neo-dynamics in the armoury of Judicial Reforms and Legal Rehabilitation of the ideal Fold and System, which is, undoubtedly, Basic and Cornerstone in the philosophy of our Constitution. We all belong to such a Fold, wherein, we owe a duty to contribute for restructuring and reshaping Administration of Law and Justice, so as to provide expeditious easy and less complex and less processual, for making it easily accessible and affordable, for common and pauper Litigant, which is as such a heart of Judicial Anatomical Atlas and a consumer of Justice Dispensation in our Country, for the recovery and rejuvenation the faith of such litigants and resultant enhancement of the Majesty of Justice. 79. The plea of "Nolo Contendere" in our country is not used in strict sense in absence of any statutory provision or necessary enactment. However, this plea plays a very important role in many jurisdictions in United States, Scotland and other European and non-European Courts. 80. 79. The plea of "Nolo Contendere" in our country is not used in strict sense in absence of any statutory provision or necessary enactment. However, this plea plays a very important role in many jurisdictions in United States, Scotland and other European and non-European Courts. 80. When in India, the Courts are flooded with astronomical arrears of cases and reduction of backlog of cases is important and out of the pending cases, almost 70% to 80% of the cases are reportedly arising from criminal jurisdiction, and again, reportedly, the rate of conviction is below 5% to 7% out of 100 cases. Could it be not said that it is opportune time, to at least, consider such a plea which has been usefully and successfully employed as an effective ADR in some parts of the world and that took in petty cases and cases in which only individual interests are concerned and larger public interests are not at stake or involved, to begin with, and that too on experimental basis for a short period as one of the means and methods to reduce the unbreakables heavy and huge backlog of cases with existing means and measures in India and particularly in Criminal Courts. We have suggested this jurisprudential "Doctrine of Nolo Contendere" as one of the alternatives to arrest menace of arrears with a view to find out whether in certain type of criminal cases and in certain type of (identified-earmarked) criminal trials, it needs to be tried and experimented for speedy and easy justice, as an effective ADR moreso, when in many jurisdictions in foreign countries, it has been gainfully and successfully used and employed as such a plea does not enter into the consideration in other litigation in clear terms of such a doctrine. PROPOSITIONS OF CRIMINAL JUSTICE REFORMS 81. It is true that the idea of "plea-bargaining" in jurisdictions in India is not permissible, but in view of the changed circumstances and present state of affairs of the criminal justice delivery system in our country, a Bill has been introduced by the Government, known as "THE CRIMINAL LAW (AMENDMENT) BILL, 2003 (BILL No. LX OF 2003)" in which Chapter XXIA, relating to "Plea-bargaining" is proposed to be introduced in the Code of Criminal Procedure, 1973. In the said Bill, new Sections i.e. Section 265A to Section 265K are proposed to be added in the Code of Criminal Procedure so as to provide for raising the "plea-bargaining" in certain types of criminal Cases. 82. One of the main aims and objects of introduction of certain provisions in general and for the introduction of "plea-bargaining" by amendment in the Code of Criminal Procedure in particular, has been the speedy disposal of criminal cases. The disposal of criminal cases in Courts, unquestionably, takes considerable long time and in that, in many cases, trials do not commence for as long as period as 3 to 5 years after the accused has been remitted to the judicial custody. Large number of persons accused of criminal offences particularly, indigent, illiterate and rustic persons are unable to secure bail, for one or the other reason and have to languish in jail, as under-trial prisoners, for years. Though not recognised so far by the Criminal Jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. It is really a measure and redressal, if brought on statute and also operative, it shall also add a new dimension in the realm of judicial Reforms. 83. To reduce the delay in the disposal of criminal trials and appeals as also to alleviate the suffering of under-trial prisoners, as well as, their dependents and keeping in mind the real purpose of Victimology, it has been rightly proposed to introduce the concept of "plea-bargaining", as recommended by the Law Commission of India, in its 154th Report, on the Code of Criminal Procedure. The committee of Criminal Justice Reforms under the Chairmanship of Dr. (Justice) V. S. Malimath (formerly, Chief Justice of the Kerala High Court), has, also, endorsed the Commission's recommendations, as well as, by Review Committee on Constitutional Reforms. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced, as part of the process of decriminalisation. It means pre-trial negotiations between the parties during which the accused agrees to plead guilty in exchange for certain concessions by the Prosecutor. The benefit of "plea-bargaining" would, however, not be admissible to habitual offenders. 84. We are tempted to mention here that law should be stable but not standstill. It means pre-trial negotiations between the parties during which the accused agrees to plead guilty in exchange for certain concessions by the Prosecutor. The benefit of "plea-bargaining" would, however, not be admissible to habitual offenders. 84. We are tempted to mention here that law should be stable but not standstill. The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases, and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. As such, "Change is only constant - thing in the world". If the individual, society or for that purpose, nation feels allergic to the change for the reforms and remaining oblivious to the realism and prevalent situations, the very existence may be in jeopardy. It is, therefore, rightly said that all must have an open mind, as mind is like a parachute; it starts working when it is open. Although, hitherto, as a part of colonial legacy, "plea-bargaining" has not been recognised, so far, in our system and Criminal Jurisprudence. However, keeping in mind the huge arrears and long time spent in trials and resultant hardships to parties and particularly, the accused and the victims of the crimes, the benefit of "plea-bargaining" as an alternative method to deal with the dispute or question of offence requires serious consideration, which would not be admissible and available to the habitual offenders. We should remember a saying that "every saint has past and every sinner has a future" and also that "law and justice should not be distant neighbours." EPILOGUE 85. After having threadbare considered, evaluated and discussed the rival submissions and valued submissions of 'amicus curiae', learned Senior Advocate Mr. Thakkar and the relevant and material provisions of Bombay Prohibition Act and Code of the Criminal Procedure, as well as, important pronouncements of the Hon'ble Apex Court coupled with the principles of Criminal jurisprudence in summing up, we hold and decide upon all the three points formulated by us in the very commencement of this judgment, here as under: (i) in the affirmative (ii) also in the affirmative iii) not competent and not legal and not binding to Courts. Observations in that judgment in para 12.1 are not legal and, therefore, not approved. 86. Observations in that judgment in para 12.1 are not legal and, therefore, not approved. 86. In short in our conclusions on objective assessment and evaluation of the factual and legal profile, in this group of criminal appeals, a sentence of imprisonment for a period of less than minimum with the help of proviso and in terms of the requirements and on proof of existence of special and adequate reasons for a first offence, the Court is empowered and entitled to award less than minimum sentence on finding accused guilty either by evidence or by raising "plea of guilty" and the judicial directions and prescription of special format contrary to the statutory provisions as observed by us, hereinabove, are not binding and required to be followed for recording the plea of guilty of accused and the proposition provided in three decisions relied on by the State are not affirmed and approved by us to the extent as stated above for the elaborate reasons and factual matrix and legal profile given, hereinabove, and upon true and correct interpretation and legislative intendments, forensic and jurisprudential exposition of the relevant propositions of the said provisions of Bombay Prohibition Act in general and proviso to Sections 66 and 85, so far as first offence is concerned. 87. In the end-result, all the appeals, at the instance of the State are without any substance and quite meritless and therefore they shall stand dismissed for the foregoing discussions and reasons. Appeals dismissed.