Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 611 (GUJ)

STATE OF GUJARAT v. JAYANTIBHAI CHATURBHAI PATEL

2009-09-14

D.H.WAGHELA

body2009
D. H. WAGHELA, J. It is one of those unfortunate cases in which service of notices or warrants has taken nineteen years and when at long last the proceedings are dropped against respondent Nos. 4, 5 and 6 and learned Counsel, Mr. H. M. Parikh has appeared for respondent Nos. 1, 2 and 3, the appeal could be heard in extenso today after its admission on 28-10-1991. 2. The appellant-State has called into question the judgment and order dated 5-12-1989 whereby, upon the accused persons pleading guilty, Criminal Case No. 6735 of 1989 was disposed with conviction for the offences under Secs. 3, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 by exercising powers under Sec. 252 of Cr.P.C. and sentencing the accused with fine of Rs. 100/-, in default, simple imprisonment for ten days. The impugned order is ex-fade absolutely illegal and shows complete lack of any sincere application of mind, insofar as Secs. 3 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short 'the Act') clearly provide for sentence of imprisonment for minimum period of one year and three years. 3. It was, however, submitted by learned Counsel Mr. H. M. Parikh that the trial Court had obviously misdirected itself in recording the conviction under Sec. 252 of Cr. P. C. when the offences for which the accused were charge-sheeted were triable as warrant cases. He further pointed out that the basic requirement of framing charge in writing under the provisions of Sec. 240 was not complied, and therefore, the accused persons could not be presumed to have known what they were pleading guilty to. He emphasized the requirement of sub-sec. (2) of Sec. 240 of Cr.P.C., whereunder the charge, after being framed in writing, is required to be read and explained to the accused persons before he is asked whether he pleads guilty of the offences charged or claims to be tried. Relying upon the judgment of the Supreme Court in Thippeswamy v. State of Kamataka. (2) of Sec. 240 of Cr.P.C., whereunder the charge, after being framed in writing, is required to be read and explained to the accused persons before he is asked whether he pleads guilty of the offences charged or claims to be tried. Relying upon the judgment of the Supreme Court in Thippeswamy v. State of Kamataka. 1983 Cri.LJ 1271, which is followed by this Court in State of Gujarat v. Uttam Bllikllu Prajapati, 1992 Cri.LJ 626, it was submitted that it would be violative of Art. 21 of the Constitution to induce or lead the accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence where a disproportionately low sentence is imposed on the accused, as a result of plea bargaining. In such cases, it would not be reasonable, fair and just to act on the plea of guilt for the purpose of enhancing the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial Court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him. Learned Counsel relied upon the dates of the proceedings for the inference that it was a case of plea bargaining. 4. Learned A.P.P. relied upon the provisions of Secs. 464 and 465 of Cr.P.C. to submit that absence of charge had not resulted into failure of justice and the respondent had not taken any objection when they could and should have raised the objection at the stage of recording their plea. She further submitted that in absence of any provision for plea bargaining at the relevant time, the Court, the prosecution or the accused could not be presumed to have entered into any plea bargaining, and while the charge-sheet filed before the Court clearly indicated the Sections for the offences under which the respondents were charged, there could not be any misunderstanding or a plea bargaining which would be absolutely illegal and contrary to the provisions requiring imposition of minimum punishment of imprisonment for a term. 5. 5. It was clear from the record that not only the charge-sheet was filed on 5-12-2008 but summons were ordered to be issued to the accused on the same date. Surprisingly, the accused persons remained present on the same date, filed their vakalatnama and the Court recorded their plea, wherein they pleaded guilty and the impugned order was also passed on the same date. This sequence of events and proceedings clearly indicate an understanding among all concerned, including learned Magistrate, with the result that the accused would plead guilty on the one hand and the Court would let them off with a token punishment on the other hand. Just as the accused persons could have but did not take any objection, learned A.P.P. or the police officer concerned could have but did not take any objection. These facts indicate the state of affairs which is worse to an illegal plea bargaining and display scandalous disregard for the express provisions of law, now compounded by the delay caused even in the proceeding of the present appeal by non-service of summons and warrants for years on end. 6. The above facts, however, indicated that the accused persons pleaded guilty on the understanding and expectation of a very light punishment and if they were made aware about seriousness of the charge and prescription of sentence of minimum period of imprisonment, they would have taken the defenses available to them rather than pleading guilty at the first opportunity. Therefore, the ratio of the decision of the Supreme Court in Thippeswami (supra) squarely applies in the facts of the present case. 7. Accordingly, the appeal is allowed, the impugned order of conviction and sentence is set aside and the case is remanded to the trial Court to afford to the accused persons, i.e. respondent Nos. 1, 2 and 3, an opportunity of defending themselves in accordance with law after framing of the charge in writing, and if they are found to be guilty, for appropriate order of sentence by the trial Court. In view of the inordinate delay in the proceedings so far, the trial Court is directed to issue fresh bailable warrants for original accused Nos. 1, 2 and 3 and impose upon them the condition, inter alia. of attending the trial on each date of hearing and commence and conclude the trial, as far as practicable, within a period of three months. 1, 2 and 3 and impose upon them the condition, inter alia. of attending the trial on each date of hearing and commence and conclude the trial, as far as practicable, within a period of three months. Since, the learned Judge whose judgment and order is under challenge in this appeal, is reported to have already retired, no order for any action on the administrative side is made. However, the absolutely illegal approach and impugned order of the trial Court are deprecated and the necessity of taking action against learned A.P.P. concerned, if any, appearing in the trial Court, is highlighted. (NRP) Appeal allowed.