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2014 DIGILAW 353 (KER)

Abdul Jaleel v. Station House Officer

2014-05-16

K.RAMAKRISHNAN

body2014
Judgment 1. This Criminal Miscellaneous Case is filed by the petitioner, who is the accused in S.T.No.2233/2010 on the file of the Judicial First Class Magistrate Court-V, Kozhikode and the revision petitioner in Crl.R.P.No.95/2012 on the file of the First Additional Sessions Court, Kozhikode to quash the proceedings under Section 482 of the Code of Criminal Procedure Code (hereinafter referred to as 'the Code'). 2. Petitioner is the accused in S.T.No.2233/2010 on the file of the Judicial First Class Magistrate Court-V, Kozhikode which was taken on file on the basis of a check report filed by the first respondent alleging that on 31.1.2010, the petitioner had driven the vehicle KL-11/G-1787 in a rash and negligent manner and he was not found to be in possession of Pollution Control Certificate and thereby he had committed the offence punishable under Section 184 of the Motor Vehicles Act and also Rule 152 read with Section 190(2) of Kerala Motor Vehicles Act. According to the petitioner, he had not committed any offence. When he was intercepted by the first respondent, he told him that he was having the pollution control certificate and he was told that he can produce the certificate before the first respondent on the subsequent date so as to avoid payment of fine or he can come and pay the fine in the office of 1st respondent and if he does not want to pay the fine, then he can contest the case before court. So he went to the office of the first respondent with the pollution control certificate. But he was abused by the first respondent and he complained the same to the higher police officials but they were also against him and he later came to understand that charge sheet has already been filed before court incorporating Section 184 of the Motor Vehicles Act as well. He was manhandled by the first respondent and other police officials. So he filed a complaint before the Chief Judicial Magistrate Court and the Chief Judicial Magistrate Court earlier dismissed the complaint against which he filed revision as Crl.R.P.No.82/2011 and the learned Sessions Judge has confirmed the order of dismissal as against accused Nos. He was manhandled by the first respondent and other police officials. So he filed a complaint before the Chief Judicial Magistrate Court and the Chief Judicial Magistrate Court earlier dismissed the complaint against which he filed revision as Crl.R.P.No.82/2011 and the learned Sessions Judge has confirmed the order of dismissal as against accused Nos. 2 to 4 in that complaint but set aside the order of dismissal of the complaint as against the first accused, who is the first respondent herein and remitted the case to the court below for fresh disposal as against the first accused in that case. Thereafter he filed W.P.(C).No.11019/2010 before this Court and this Court directed the Assistant Commissioner of Police to conduct enquiry regarding false implication of the petitioner in some cases by the first respondent and others and without conducting any proper enquiry, final report in this case and also other cases were filed. In fact, on 31.5.2010 he appeared before the Judicial First Class Magistrate Court-V, Kozhikode and the case was not called and when he enquired about the same with the Bench Clerk of that court, he was called to the chambers of the learned Magistrate and wanted to ascertain whether he wanted to plead guilty or not and he informed the magistrate that he is not intended to plead guilty but he was made to sign certain papers. Thereafter he came to understand from the court officials that he was convicted on the plea of guilt alleged to have been made and he was made to remit the fine of Rs.1,100/-. Thereafter he remitted the fine and obtained certified copy of the judgment and then filed revision before the Sessions Court which was taken on file as Crl.R.P.No.95/2012. It was made over to the First Additional Sessions Court for disposal and the learned Additional Sessions Judge though found that there is illegality in not recording the plea of guilt of the petitioner and obtaining signature of the petitioner in the same but came to the conclusion that, that alone is not sufficient to come to the conclusion that the plea recorded by the court below and the conviction entered by the court below is illegal considering the conduct of the petitioner and dismissed the revision by the impugned judgment. Aggrieved by the same, the present petition has been filed by the petitioner in person challenging the order passed by the courts below under Section 482 of the Code. 3. Heard the petitioner, who appeared in person and argued the case and the learned Public Prosecutor appearing for the State. 4. The petitioner has submitted that even going by the judgment of the Additional Sessions Court will go to show that his plea was not recorded by the learned Magistrate as required under law and as such, there is illegality committed by the court below and conviction entered by the court below on the basis of alleged plea of guilt is illegal and the same is vitiated. But the learned Sessions Judge ignored this fact though found that there is irregularity committed by the court below, but proceeded on the basis that there is nothing to disbelieve the statement recorded by the Magistrate in the proceedings paper and confirmed the order of conviction passed by the court below, which according the petitioner is illegal. Further, the conduct of the petitioner will go to show that there is no possibility of the petitioner pleading guilty and merely because he had remitted the fine, the circumstance which has been explained by him alone is not sufficient to come to the conclusion that he had pleaded guilty as found by the learned Additional Sessions Judge. So, according to the petitioner, the orders passed by the court below are liable to be set aside and the matter has to be remitted to the court below for fresh disposal. 5. On the other hand, the learned Public Prosecutor appearing for the respondent submitted that there is nothing to disbelieve the proceedings recorded by the learned Magistrate in the proceedings paper that he had pleaded guilty and relying on that plea of guilt, entered the conviction and as such, there is no illegality committed by the court below and mere irregularity will not vitiate the conviction unless prejudice has been caused to the accused on account of the same which has not been established by the petitioner. So according to the learned Public Prosecutor, the orders passed by the court below does not call for any interference. 6. So according to the learned Public Prosecutor, the orders passed by the court below does not call for any interference. 6. It is an admitted fact that the first respondent had filed petty charge sheet against the petitioner before the Judicial First Class Magistrate Court-V, Kozhikode alleging that on 31.1.2010 at about 5 p.m. the petitioner was found driven the vehicle KL- 11/G 1787 in a rash and negligent manner and not in possession of Pollution Control Certificate and thereby he committed the offence punishable under Section 184 of the Motor Vehicles Act and Rule 115(2) of the Kerala Motor Vehicles Rules read with Section 190(2) of the Motor Vehicles Act. It is also an admitted fact that on the basis of the petty charge sheet submitted by the first respondent herein before the Judicial First Class Magistrate Court-V, Kozhikode, the learned Magistrate had taken cognizance of the case as S.T.No.2233/2010 and summons was issued to the petitioner to appear on 17.5.2010. It is seen from the proceedings paper that on 17.5.2010, he was absent and applied through counsel and it was posted to 31.5.2010 for his appearance. It is seen from the proceedings paper that on 31.5.2010, the accused was present and it was noted as follows: "Accused present. Particulars of offence read over. Accused pleaded guilty. The accused is convicted and sentenced to pay Rs.1,000/- under Section 184 of the Motor Vehicles Act and Rs.100/-under Section 190(2) of the Motor Vehicles Act. In default of payment of fine to undergo imprisonment for 5 days each". 7. This is being challenged by the petitioner alleging that in fact the case was not called in the open court and when he enquired about the same with the bench clerk of the court, he was called to the chambers of the Magistrate from where he asked him as to whether he was pleading guilty or not and he told the Magistrate that he was not pleading guilty and he was made to sign certain papers and asked to remit Rs.1,100/-and he remitted the same. Later when he made enquiries with the office of the court, he came to understand that he was convicted on the basis of the alleged plea of guilt and sentenced to pay fine which according to him was not done by him. Later when he made enquiries with the office of the court, he came to understand that he was convicted on the basis of the alleged plea of guilt and sentenced to pay fine which according to him was not done by him. So he filed Crl.R.P.No.95/2012 before the Sessions Court, Kozhikode and the learned First Additional Sessions Judge by the impugned judgment dismissed the revision which is being challenged by the petitioner by filing this petition. 8. It is seen from the records that in the proceeding papers it was mentioned that particulars of offence were read over and he pleaded guilty. But nothing mentioned in the proceedings paper that the learned Magistrate was satisfied that the plea was voluntarily and it is on that basis that he found him guilty. But only in the judgment it was mentioned that he was satisfied that the plea is voluntarily. Further in the proceedings paper, nothing mentioned as to whether the documents produced by the police along with the petty charge sheet have been given to the petitioner. But in the judgment, it was mentioned that on appearance of the accused, copies of relevant prosecution records were given to him and this is absent in the proceedings paper based on which the judgment was prepared. Further there is nothing on record to show that any endorsement was obtained for giving copy of the documents to the petitioner. 9. Chapter XXI of the Code deals with procedure for summary trial and Section 262 of the Code deals with procedure for summary trials which reads as follows: 262. Procedure for summary trials:- (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." Section 263 of the Code deals with records in summary trials which reads as follows: 263. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." Section 263 of the Code deals with records in summary trials which reads as follows: 263. Record in summary trials:- In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, he following Particulars, namely:- (a) the serial number of the case; (b) the date of the commission of the offence; (c) the date of the report of complaint; (d) the name of the complainant (if any), (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any), (h) the finding; (i) the sentence or other final order; (j) the date on which proceedings terminated. 10. Section 263(g) of the Code says that the plea of accused and his examination, if any, has to be entered in such form as the State Government may direct. So it is clear from this that the plea of the accused must be recorded by the learned Magistrate before proceeding further in the matter. Further Section 262 of the Code says that the procedure in this Code for trial of summons cases shall be followed except as hereinafter mentioned. So it is clear from this that procedure provided for the summary trials is the procedure to be followed for the trial of summons cases which is being enumerated under Chapter XX of the Code. Section 252 of the Code says that 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. Section 252 of the Code says that 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. Section 253 of the Code deals with conviction of plea of guilty in the absence of accused in the petty cases where it was mentioned that if a special summons has been issued to the accused as provided under Section 206 of the Code, and if a statement has been sent by the accused along with his intention to plead guilty, then that can be accepted by the Magistrate and can convict without recording the plea of the accused separately as provided under Section 252 of the Code. So it is clear from the above that the Magistrate is bound to follow the procedure in summons cases for trying offences under summary trial cases as well. Failure to follow the procedure by the Magistrate will vitiate the conviction as well (See Hansa Raj & Others v. State (AIR 1956 Allahabad 641), Rupchand v. State (AIR 1956 Allahabad 399), S. Prem Kumar v. S.I. Of Police (1990 Madras Law Journal Reports (Criminal) 320) and Smt.Mani v. State of Kerala (1985 Crl.L.J 1882) 11. In this case, there is nothing on record to show that the plea of the accused was recorded by the learned Magistrate before accepting the same and entering conviction on the basis of such plea. When a procedure is directed to be adopted by the Magistrate and if the Magistrate has not followed that procedure, then the proceedings of the Magistrate will be vitiated and the conviction entered by the Magistrate without following the procedure will vitiate the conviction as well. This fact has not been properly considered by the learned Additional Session Judge while confirming the order of conviction and sentence passed by the court below. The conduct of the accused is not much relevant when it is found that there is procedural illegality committed by the learned Magistrate while proceeding with the case. I am not going to the question as to whether the allegations made by the petitioner are genuine or not at this stage as he had pleaded not guilty, but the magistrate has recorded that he had pleaded guilty wrongly and convicted etc. I am not going to the question as to whether the allegations made by the petitioner are genuine or not at this stage as he had pleaded not guilty, but the magistrate has recorded that he had pleaded guilty wrongly and convicted etc. Since there is nothing on record to show that plea of the accused was recorded as provided under Section 252 of the Code read with Section 262 of the Code and Section 263(g) of the Code and also that there is nothing in the proceedings paper to show that the Magistrate was satisfied that the plea was voluntarily, then the conviction entered by the court below on the basis of the alleged plea of guilt made by the accused is vitiated and the same is liable to be set aside. So the order of conviction and sentence passed by the learned Magistrate as confirmed by the First Additional Sessions Judge, Kozhikode on the basis of the alleged plea of guilt alleged to have been made by the petitioner are liable to be set aside. So the order of conviction and sentence passed by the court below are set aside and the matter is remitted to the Judicial Fist Class Magistrate Court-V, Kozhikode for fresh consideration from the stage of reading over particulars of offence and then proceed with the case afresh in accordance with law. 12. So the petition is allowed and the order of conviction and sentence passed by the Judicial First Class Magistrate Court-V, Kozhikode, in S.T.No.2233/2010 under Section 184 of the Motor Vehicles Act and Section 190(2) of the Motor Vehicles Act as confirmed by the First Additional Sessions Judge, Kozhikode in Crl.R.P.No.95/2012 are set aside and the matter is remitted to the Judicial First Class Magistrate Court-V, Kozhikode for fresh disposal in accordance with law. The learned Magistrate is directed to proceed from the stage of reading over particulars of the offence and then dispose of the case afresh in accordance with law. Parties are directed to appear before the court below on 14.6.2014. Office is directed to communicate this order to the courts below at the earliest.