Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 350 (JK)

Aijaz Ahmad Khan v. State Of J. &K.

2009-07-22

MANSOOR AHMAD MIR

body2009
1. This criminal revision is directed against the judgment and order dated 12th of September, 2005, passed by Judicial Magistrate, Budgam, in a case titled State V/S Aijaz Ahmad FIR No.242/2003 P/S Sadder under Sections 279, 304-A RPC and u/s 3/181 Motor Vehicles Act, whereby petitioner came to be convicted and sentenced, and against the order dated 28.4.2006 passed by learned Principal Sessions Judge, Budgam whereby criminal appeal titled Aijaz Ahmad Khan V/S State came to be dismissed and the order passed by learned Judicial Magistrate, Budgam, came to be confirmed/up-held. BRIEF FACTS:- 2. FIR No.242/2003 came to be lodged in Police Station, Sadder with the allegation that the petitioner-accused was driving maruti van bearing registration No.7075-DL-60E on 25th of July, 2003 rashly and negligently when he was going from Soibugh to HMT and hit one Sajad Ahmad S/O Gh. Rasool R/O Bonapora Soibugh who sustained grievous injuries and succumbed to the injuries. Police conducted investigation, presented challan against the petitioner-accused for the commission of offences punishable under Sections 279, 304-A RPC and 3/181 Motor Vehicles Act before Chief Judicial Magistrate, Budgam, came to be transferred to Judicial Magistrate, Budgam. On 12th of September, 2005, it framed charge against him. Petitioner-accused pleaded guilty and came to be convicted and sentenced vide impugned order dated 12th of September, 2005. 3. Feeling aggrieved, petitioner questioned the impugned order of conviction/sentence by the medium of an appeal before Principal Sessions Judge, Budgam, came to be dismissed vide order dated 28.4.2006. 4. Short controversy involved in this petition is "whether the plea of guilty came to be rightly recorded and whether the impugned orders passed by the subordinate courts are legally sound." 5. I am of the considered view that both the courts have fallen in error while passing the impugned orders for the following reasons:- 6. The charge sheet came to be framed by Judicial Magistrate, Budgam, on 12th of September, 2005 on printed form by making fill in the blanks, by making mention of the allegations. On the back of that charge sheet three questions were asked to the petitioner-accused. 1st question was, whether he heard and understood the contents of charge sheet, he replied in affirmative. The second question was, whether he has committed the guilt, he said `yes. On the back of that charge sheet three questions were asked to the petitioner-accused. 1st question was, whether he heard and understood the contents of charge sheet, he replied in affirmative. The second question was, whether he has committed the guilt, he said `yes. Third question was, whether he had to say something, in reply he said that for the first time he has committed the mistake, he be forgiven; in future he would be careful. 7. Chapter 21 of the Criminal Procedure Code (hereinafter referred to as "the Code") provides how to conduct trial in warrant cases. Section 251-A of the Code prescribes the procedure to be adopted in cases instituted on police reports. It is profitable to reproduce sub-section 4 of Section 251-A of the Code hereunder:- "251-A .. (4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried." In terms of this provision, the trial court had to ask the accused in a single question "whether he is guilty or claims to be tried." In the instant case only part of mandate of the said provision has been complied with as the accused has been only asked whether he has committed the offence and he replied `yes. It was not the answer of the accused that he was guilty or has committed the crime. It is not known what were the words used by the accused. The trial court has not asked the composite question that "whether he is guilty or claims to be tried." Even the trial court has not asked the question separately `whether he claims to be tried. He has also stated that he has committed mistake for the first time, he be forgiven. It cannot be said that he has accepted and confessed that he has committed the offence and accepted the guilt. 8. It appears that the charge sheet came to be prepared while making fill in the blanks in the printed form by the concerned clerk (Ahlimad) and even the questions and answers also appears to have been written by the concerned clerk. The trial court has not recorded the requisite certificate that the concerned clerk prepared the charge sheet and made fill in the blanks under his dictation and supervision. 9. The trial court has not recorded the requisite certificate that the concerned clerk prepared the charge sheet and made fill in the blanks under his dictation and supervision. 9. This Court in case titled Mohammad Ramzan (Katu) Bhat V/S State reported in 1981 K.L.J 325 held that it is incumbent upon a Magistrate to put the questions in the manner in which sub-section 4 of Section 251-A requires the questions to be put. It is apt to reproduce para 18 of the said judgment:- "(18) It has been argued with reference to sub-section 4 that the question put to the accused-petitioner by the Magistrate do not include the question as to whether he claimed to be tried. From a perusal of this statement, it is obvious that the main question put to the accused-petitioner was "whether he has committed the offence" and the reply was `YES. Sub-section 4 as quoted above requires a Magistrate to ask the accused as to whether he is guilty or claims to be tried. It is incumbent upon the Magistrate to put the question in the manner in which sub-section 4, requires the question to be put. The Magistrate should have asked the accused petitioner "whether he is guilty or claims to be tried". Instead, what has been asked is whether he had committed the offence or not and there is no mention in the question as to whether he claims to be tried may be redundant in view of the plea of guilt raised by the answering accused, yet the question as to whether he claims to be tried had to be put to the accused unless as suggested by the learned counsel for the petitioner, the Magistrate was sure that the accused would take up a plea of being guilty. The contention of the learned counsel for the petitioner has enough force behind it, especially when under Sub-section 5, the Magistrate had been vested with the discretion to act upon the plea of guilt or not. It may not be out of place to observe that the question as to whether the accused claims to be tried had to be put to the accused-petitioner even if he had taken up a plea of guilt. It may not be out of place to observe that the question as to whether the accused claims to be tried had to be put to the accused-petitioner even if he had taken up a plea of guilt. Rather the question should be in a composite form and in one and the same question the accused should be asked as to whether he is guilty or claims to be tried. The effect of having failed to put this question specifically to the petitioner-accused has a bearing on the facts of the case to which I shall come later." 10. Gauhati High Court in a case titled Sashidhara Kurup Vs. Union of India & Ors. reported in 1994 Cri. L.J. 375 held that accused simply saying that he is guilty of the charge does not constitute an admission of guilt. Further it held that Magistrate has to record plea as nearly as possible in the words used by the accused. 11. Keeping in view the facts of the case and the ratio laid down by the judgments supra, the trial court has not followed the procedure correctly and thereby has fallen in error. The trial court has also not passed the speaking and reasoned order but has passed an order in hot haste. It is not forthcoming from the impugned order what imprisonment was awarded against the petitioner-accused for the commission of offences punishable under sections 279, 304-A RPC or under section 3/181 Motor Vehicles Act but trial court has in lump sum awarded five years imprisonment for the commission of all the three offences. 12. It is also not record in the impugned order that trial court deemed it fit to convict the accused on the basis of the alleged so-called plea of guilt and has not assigned reasons why it has not directed the prosecution to lead evidence in support of their case as was required in terms of mandate of sub-section 5 of Section 251-A of the Code. 13. How the trial court has convicted the petitioner-accused for the commission of offence punishable under Section 279 RPC and also for the commission of offence under Section 304-A RPC? 14. The offence punishable under Section 279 RPC carries punishment of six months simple imprisonment or fine of Rs.1000 or both. Offence under Section 304-A RPC carries punishment of maximum five years imprisonment. 14. The offence punishable under Section 279 RPC carries punishment of six months simple imprisonment or fine of Rs.1000 or both. Offence under Section 304-A RPC carries punishment of maximum five years imprisonment. The offence punishable under Section 3/181 Motor Vehicles Act carries one months imprisonment or fine. Whether the petitioner-accused has been sentenced to five years imprisonment for the commission of offence under Section 279 RPC or under Section 304-A RPC or under Section 3/181 Motor Vehicles Act, is not forthcoming from the impugned order of the trial court. 15. It is not recorded why the trail court on the plea of so-called guilt has awarded maximum punishment of five years. The trial court has not spelled out all the facts which constitute the ingredients of the said offences. 16. Andhra Pradesh High Court in a case titled C. Subbarayudu Vs. State of AP reported in 1996 Cr. L.J.1472 held that Magistrate should question the accused on all the ingredients of the offence to find out whether the accused understood the nature of the offence. Further held that the plea of guilty should be recorded in the words of the accused. 17. The learned Sessions Judge has also passed an illegal order and has fallen in error. 18. For the foregoing reasons, this revision petition is allowed. Impugned orders are set aside. The Judicial Magistrate, Budgam is directed to frame charge afresh and conclude the trial of the case as soon as possible. The parties are directed to appear before the trial court on 8th of August, 2009 19. Registry is directed to send record of both the courts along with copy of this order forthwith.