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2016 DIGILAW 134 (GAU)

Vanlalpana @ Pana @ Pino v. State of Mizoram

2016-02-25

M.R.PATHAK

body2016
JUDGMENT : M.R. Pathak, J. This Criminal Revision Petition under Section 397 of the Code of Criminal Procedure has been filed by the accused Vanlalpana from Jail challenging the order dated 17.06.2015 passed by the Chief Judicial Magistrate, Mamit in Criminal Trial No. 96/2015 arising out of West Phaileng Police Station Case No. 9 of 2015 convicting the accused petitioner under Sections 454/380/75 of the Indian Penal Code and sentencing him to undergo Simple Imprisonment for 18 months for those three different offences and also to pay a fine of Rs. 1200/-, in default, to undergo Simple Imprisonment of further 30 days, setting off the detention period already undergone by him. 2. Heard Mr. Jonathan L. Sailo, learned Amicus Curiae for the accused petitioner and Mr. Ashok Kumar Rokhum, learned Public Prosecutor for the State. 3. Both the parties were earlier heard on 16th and 18th February, 2016 and was fixed today for orders. 4. The contention of the accused petitioner is that the Trial Magistrate failed to offer him any legal assistance to represent his case, while the prosecution was represented by the Assistant Public Prosecutor. The accused also alleged that the copy of the Charge-sheet was not furnished to him before conducting the trial, as such, he was not aware about the charges levelled against him and he had no advocate to plead for his case. It is also urged that without recording any evidence of the prosecution, without affording him any opportunity for defence evidence, the Trial Magistrate i.e. the Chief Judicial Magistrate, Mamit though not empowered to tried the said case summarily. It is further contended that the impugned order of conviction dated 17.06.2015 has been passed in violation of the provisions of Section 260 of the Cr.P.C. and he has been convicted illegally on the plea of guilty though the case in question is not a summons case. The accused also submitted that justice has been denied to him and the Trial Magistrate was biased with him and therefore imposed the impugned punishment which is disproportionate to the offences allegedly committed by him. For the said reasons, the accused petitioner has prayed for setting aside & quash the impugned order of conviction & sentence dated 17.06.2015. 5. Learned Amicus Curie Mr. For the said reasons, the accused petitioner has prayed for setting aside & quash the impugned order of conviction & sentence dated 17.06.2015. 5. Learned Amicus Curie Mr. Jonathan L. Sailo further submitted that the trial Court committed further illegality by sentencing the accused petitioner for a period of 18 months in a summary procedure, though in a summary trial, an accused person cannot be sentenced to imprisonment for a term exceeding 3 (three) months as prescribed by the Sub-Section (2) of Section 262 Cr.P.C. 6. Learned Public Prosecutor, Mr. Rokhum supporting the Judgment of conviction has submitted that the Trial Magistrate has rightly recorded the judgment of conviction considering the fact that the accused petitioner is a habitual offender and was convicted earlier on many occasions for similar offences and that the proceeding in which the accused petitioner has been convicted by the impugned order dated 17.06.2015 being not a summary proceeding, he was convicted for imprisonment of 18 months. 7. From the perusal of records of the case, it can be seen that on 14.03.2015 one Mr. Rozamliana of W. Phaileng, Dinthar Veng lodged an FIR before the Officer-in-Charge of W. Phaileng Police Station stating that on 11.03.2015 while they were working under NREGS works, unknown miscreants entered their house and had stolen his Air Gun (.22 India) that was kept inside the house, which was accordingly, registered as W. Phaileng Police Station Case No. 9/2015 under Sections 457/380 IPC. 8. On completion of the investigation of said W. Phaileng P.S. Case No. 9/2015, the concerned Investigating Officer submitted the Charge-sheet vide No. 13/15 dated 12th May, 2015 against the present accused under Sections 453/380/75/34 IPC and two other co-accused under Sections 414/34 IPC. The Charge-sheet of the case in hand also contains that on specific disclosure of the accused petitioner in presence of witnesses; the stolen gun was recovered, which was sold by him with the help of the other two co-accused. Alleging that the accused petitioner is a habitual offender and that he was earlier arrested & convicted on several occasions for similar offences, in the charge sheet the Investigating Officer have prayed before the authority to give enhanced punishment to the accused petitioner. 9. Alleging that the accused petitioner is a habitual offender and that he was earlier arrested & convicted on several occasions for similar offences, in the charge sheet the Investigating Officer have prayed before the authority to give enhanced punishment to the accused petitioner. 9. From the record of the case, it is seen that the charge sheet of the case was placed before the learned Chief Judicial Magistrate, Mamit in the Criminal Trial No. 96/2015 under Sections 454/414/380/34 IPC arising out of W. Phaileng P.S. Case No. 9/2015 on 15.05.2015. On 15.05.2015 itself, the learned Magistrate concerned finding the said Charge-sheet in order, accepted the same and accordingly took cognisance of the case fixing 28.05.2015 for delivery of documents. On said 15.05.2015, the said Magistrate was also aware that the accused petitioner was in Jail custody. On 28.05.2015 learned Magistrate delivered the documents to the other two co-accused of the case who were on bail except the accused petitioner who was not produced before the Court from Judicial Custody. Accordingly, the Trial Magistrate fixed the matter on 17.06.2015 for consideration of charge and issued notice for production of the accused petitioner on the said date. 10. From the record of the Criminal Trial No. 96/2015, it is seen that on 17.06.2015 the accused petitioner was produced before the learned Chief Judicial Magistrate, Mamit from judicial custody and then documents of the case were delivered to him by obtaining his signature. After delivery of the documents to him, the accused petitioner was informed of his right to engage a lawyer of his choice towards compliance of Section 303 IPC. The Public Prosecutor made a prayer before the Court to proceed with the case, as it is difficult for the police personnel to provide transportation for remand of the accused person into judicial custody in other Districts and to produce him on the next date before the Court for consideration of charge. At this stage, the accused petitioner also agreed for process of the case and stated that he has no objection in it. Accordingly, the learned Magistrate decided to process the case further. At this stage, the accused petitioner also agreed for process of the case and stated that he has no objection in it. Accordingly, the learned Magistrate decided to process the case further. On the prayer of the Public Prosecutor made before the Trial Magistrate that since there is a prima facie case against the accused who committed the offence punishable under Sections 454/380/75/34 IPC and for the other two co-accused charges should be framed for the offence punishable under Sections 414/34 IPC. 11. On perusal of the case record and materials available, the Magistrate was of the opinion that there is ground for further proceedings into the case against the accused petitioner under Sections 454/380/75/34 IPC and, accordingly, framed charge under those Sections against him which were read over and explained to him in Mizo Language that is known to him to which the accused petitioner pleaded guilty by stating that while nobody was in the house of Mr. Rozamliana (the informant) he entered the said house and stole the Air Gun (.22 India). 12. The Court felt that the same is a good plea of guilty since the accused petitioner admitted that he stole the Air Gun from the residence of Mr. Rozamliana in their absence and as such convicted the accused petitioner under Sections 454/380 and further added Section 75 IPC against him as he was previously convicted on 4 (four) occasions on similar cases. Accordingly, the learned Chief Judicial Magistrate, Mamit by his order dated 17.06.2015 itself convicted the accused petitioner under Sections 454/380/75 IPC and sentenced him to undergo Simple Imprisonment for 18 months for those offences and to pay a fine of Rs. 1200/-, and in default, to undergo Simple Imprisonment of another 30 days setting off the detention period already undergone. 13. In the said proceeding, the other two co-accused admitted that they had sold the Air Gun, that was stolen by the accused petitioner, at Rs. 1000/- to a purchaser, which was already recovered and, therefore, the Trial Magistrate convicted them under Sections 414/34 IPC and sentenced them to undergo Simple Imprisonment for 1 month and to pay a fine of Rs. 100/- each, in default S.I. for another 2 days, setting off the period of detention already undergone. 14. 1000/- to a purchaser, which was already recovered and, therefore, the Trial Magistrate convicted them under Sections 414/34 IPC and sentenced them to undergo Simple Imprisonment for 1 month and to pay a fine of Rs. 100/- each, in default S.I. for another 2 days, setting off the period of detention already undergone. 14. From the perusal of judicial record of the case, it is seen that on 17.06.2015 at the instance of the Trial Magistrate, the accused petitioner was produced before him from judicial custody and after giving him the copy of police report and other documents, the Trial magistrate did not give the accused any time either to engage his defence lawyer or to seek legal assistance, except informing him about his right to defend himself by an Advocate of his choice and at the request of the Public Prosecutor that it is difficult for the police personnel to provide transportation for remand of the accused person into judicial custody in other District and to produce him on the next date before the Court for consideration of charge, the concerned Trial Magistrate decided to proceed further with the case on the same day instantaneously. 15. The judicial record of the Trial Magistrate does not disclose that after the process was issued and the accused appeared, particulars of the offence was stated to him as the accused must know what the acquisition against him is and that he must know that he is about to be put to trial and the facts constituting the offence with the commission of which he is accused. From the judicial record, it is clear that proceeding of the Trial Magistrate did not indicate that such explanation was actually made. 16. It is a settled law that the plea of guilt must be to an offence, which has to be clearly explained to the accused by the Trial Court before his plea of guilt can be acted upon and mere mention that the accused pleads guilty, does not show whether the accused understood the ingredients of the offence and admitted those ingredients. Before accepting the plea of guilty, it is the bounden duty of the Trial Court to satisfy themselves that the concerned accused has understood the charge or the substance of the accusation against him and concerned accused has after understanding the same pleaded guilty and also after realising the consequences that follow. Before accepting the plea of guilty, it is the bounden duty of the Trial Court to satisfy themselves that the concerned accused has understood the charge or the substance of the accusation against him and concerned accused has after understanding the same pleaded guilty and also after realising the consequences that follow. 17. But in the present case, the impugned action of the Trial Magistrate does not reflect that the accused petitioner understood about the offence he is charged of and his confession or plea of guilt about the said offence; as in his said order dated 17.06.2015, after a statement of the accused, the Trial Magistrate of his own felt that the said statement of the accused is a good plea of guilty since he admitted the fact for which he convicted the accused. It is seen that the said statement of the accused on the basis of which the Magistrate concerned convicted him was not an unqualified admission of his guilt and it did not amount to a plea of guilty and, therefore, no conviction could be based on such statement. In the case in hand, the accused was questioned by the Magistrate the same day on which he furnished the documents under Section 207 Cr.P.C. to the accused. Further, the accused petitioner has also been deprived of engaging a counsel of his choice. This itself shows that there was no fair trial and the accused was prejudiced by it and as such the conviction is liable to be quashed. 18. Chapter XXI of the Cr.P.C. consisting Sections 260 to 265 provides for Summary Trial and the Chief Judicial Magistrate may try the offences under Sections 454, 380, 414 of the IPC in a summary way as provided under Section 260 Cr.P.C., but as per the provisions of Section 262 Cr.P.C., the procedure specified in the said Code for the trial of summons-case has to be followed in a summary trial. In the present case, the accused petitioner has been convicted under Sections 454 & 380 IPC but from the perusal of the record, it is seen that while convicting the accused petitioner the Trial Magistrate neither followed the procedure of summary trial nor the procedure of summons-case or the procedure of trial of warrant case in its proper perspective. 19. In the present case, the accused petitioner has been convicted under Sections 454 & 380 IPC but from the perusal of the record, it is seen that while convicting the accused petitioner the Trial Magistrate neither followed the procedure of summary trial nor the procedure of summons-case or the procedure of trial of warrant case in its proper perspective. 19. In the case of Krishnan v. Krishnaveni reported in (1997) 4 SCC 241 , the Hon'ble Supreme Court have held that - "The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinate courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice." 20. From the discussion made above, it is seen that the impugned order of conviction and sentence dated 17.06.2015 passed by the Trial Magistrate, i.e. the Chief Judicial Magistrate, Mamit in Criminal Trial No. 96/2015 arising out of West Phaileng Police Station Case No. 9/2015 convicting the accused petitioner under Sections 454/380/75 and sentencing him for Simple Imprisonment of 18 months with fine found to be erroneous, without compliance of the provisions of law and procedure laid down by the Code and in arbitrary exercise of his judicial discretion. 21. 21. In view of the above, the impugned order of conviction dated 17.06.2015 passed by the Chief Judicial Magistrate, Mamit in Criminal Trial No. 96/2015 arising out of West Phaileng Police Station Case No. 9/2015 in exercise of revisional power under Section 397 Cr.P.C. is hereby set aside and quashed. 22. The accused petitioner shall be set at liberty forthwith, if not wanted in any other case. 23. We appreciate the service rendered by Mr. Jonathan L. Sailo, learned Amicus Curie, who is entitled to the hearing fee of Rs.7,500/- (Rupees seven thousand five hundred), payable to him by the Mizoram State Legal Services Authority, Aizawl. 24. Send down the LCR.