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Meghalaya High Court · body

2022 DIGILAW 258 (MEG)

Bhagadatta Boro v. State of Meghalaya

2022-09-27

W.DIENGDOH

body2022
JUDGMENT 1. The petitioner has approached this Court with this criminal revision petition being aggrieved by the judgment dated 18.07.2022 passed in Criminal Appeal No. 1 of 2022 whereby the order dated 29.06.2022 passed by the learned Judicial Magistrate First Class (JMFC) in GR Case No. 35 of 2021 wherein the petitioner as an accused therein was convicted and sentenced to undergo six months simple imprisonment with fine of Rs. 1000/- (rupees one thousand) only on default thereof to undergo another one month simple imprisonment was upheld by the learned Additional Deputy Commissioner (Judicial), West Khasi Hills District, Nongstoin. 2. The brief fact of the case is that on 03.04.2019 an FIR was lodged by one Shri. A. Mawsor of Umdang village under Shallang Police Station informing the Officer In-Charge, Shallang Police Station, West Khasi Hills District of a motor vehicle accident involving two vehicles bearing registration No. AS 01 CC-4992 and AS 01 CC-3027 in which his minor daughter was involved in the said accident causing her death as a result of the same. It is prayed that necessary action be taken against the drivers of the said offending vehicles. 3. The FIR was registered as Shallang PS Case No. 5(4) 2019 under Section 279/304 A IPC. On investigation being completed, the charge sheet was filed by the Investigating Officer who has found that a prima facie case is well established against the accused person Shri Bhagadatta Boro, the petitioner herein and he was directed to stand trial in the said case which was registered as GR Case No. 35 of 2021 taken up by the learned Judicial Magistrate First Class (JMFC), Nongstoin. 4. In course of proceedings, the accused/petitioner was made to appear before the court of the learned JMFC, who vide order date 29.06.2022 has noted that the accused/petitioner along with his defence counsel is present in court and the particulars of the offence under Section 279/304 A IPC has been explained to him and he was asked whether he wants to plead guilty or has any defence to make, to which the accused/petitioner pleaded guilty. 5. The learned Trial Court on being convinced that the accused/petitioner had voluntarily pleaded guilty and his statement being recorded accordingly, had thereafter, convicted the accused/petitioner for the offence under Section 279 IPC and has immediately sentenced him to payment of fine of Rs. 5. The learned Trial Court on being convinced that the accused/petitioner had voluntarily pleaded guilty and his statement being recorded accordingly, had thereafter, convicted the accused/petitioner for the offence under Section 279 IPC and has immediately sentenced him to payment of fine of Rs. 1000/- (rupees one thousand) only, in default of payment to undergo one month simple imprisonment and further has also sentenced him to undergo simple imprisonment of six months in respect of offence under Section 304 A IPC. The sentenced to run concurrently. 6. The petitioner being aggrieved by the impugned order and sentenced dated 29.06.2022 has appealed against the same before the court of the learned Additional Deputy Commissioner (Judicial), Nongstoin, who after hearing the parties vide impugned judgment and order dated 18.07.2022 has rejected the appeal and has confirmed the sentenced imposed by the learned JMFC. Hence this petition. 7. Heard Mr. S. P. Mahanta, learned Sr. counsel who has submitted that the manner in which the petitioner was convicted by the Trial Court was improper and not in accordance with law inasmuch as the petitioner who is uneducated and not aware of the nuances of law was apparently confronted with questions and allegations in a language, he is not accustomed to and in a court room atmosphere without knowing or realizing the consequences, he has replied in the positive to the questions put to him. This aspect of the matter was not appreciated by the learned JMFC resulting in the passing of the impugned sentence and conviction. 8. The learned Sr. counsel has also submitted that the procedure followed by the learned JMFC is not according to law, inasmuch as the alleged statement of the petitioner was recorded under Section 313 Cr.P.C, when no evidence has been led in the case and as such, no incriminating evidence could have been found against the petitioner to enable the court to comply with the provision of Section 313 Cr.P.C. On this ground alone, the impugned sentence and conviction is vitiated and the petitioner may be discharged from the case on this ground alone. 9. In this regard the learned Sr. counsel has cited the case of State of Mizoram v. Ramengmawia: (2006) 1 GLR 745 at paras 9, 22 and 25 which reads as follows: '9. 9. In this regard the learned Sr. counsel has cited the case of State of Mizoram v. Ramengmawia: (2006) 1 GLR 745 at paras 9, 22 and 25 which reads as follows: '9. Coupled with the above, it is of immense importance to note that though the offence of 'murder' is a mixed question, of fact and law and while a layman may plead guilty to a charge of murder due to the fact that he does not know the law, a man, who knows the law, may not plead guilty in similar circumstances. The man, thus, who has no knowledge of law, may suffer. Though an illiterate and poor man stands in an utterly disadvantageous position vis-a-vis a literate and moneyed man, Article 14 of our Constitution does not discriminate between a literate and an illiterate accused or between a rich and a poor person as an accused. This dichothamy of inherent disadvantage, which a literate and poor person, as an accused suffers, vis-a-vis a literate and rich person as an accused, needs to be, therefore, resolved. Consequently, imperative it is for the Sessions Court, before whom an accused pleads guilty to a charge of such serious an offence as murder, that the Judge makes all endeavours to satisfy himself that the accused admits the facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unequivocal and the Court must be satisfied that the accused has understood the nature of the allegations made against him and admits them accordingly. The Court must act with caution and circumspection before accepting the plea or before acting upon such a plea. 22. Setting at rest the controversy if there is an absolute bar or not in acting upon the plea of guilty of the accused even in a heinous offence, such as murder, it is worth noticing that in State of Maharashtra v. Sukhdeo Singh ( AIR 1992 SC 2100 ), the Apex Court held, "................................. Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to the tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses, i.e., the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under Section 313 of the Code.' 25. We may hasten to point out that unlike Section 229 Cr.PC, where the Legislature allows the Sessions Court merely to record the plea of guilt of the accused and convict him thereon, Section 252 Cr.PC, which empowers a Magistrate, in the cases, which are triable by summons procedure, to convict the accused on 'his plea of guilty' requires that a Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict thereon. Unlike Section 252, though Section 229 does not cast any obligation on the Sessions Judge to record the plea of the accused as nearly as possible in the words used by the accused, yet prudence demands that the Court records the plea in the words used by the accused so that the Court confirming conviction and sentence may know what exactly the plea of the accused was.' 10. The learned Addl. PP, Mr. S. Sengupta appearing on behalf of the State respondent at the outset, has fairly conceded that a perusal of the records would show that the learned JMFC has proceeded to convict the petitioner on application of a wrong provision of law, inasmuch as the statement of the petitioner was recorded under Section 313 Cr.P.C when evidently, the deposition of the witnesses has not been recorded and as such, the petitioner could not have been confronted with any incriminating evidence against him. 11. This Court has carefully considered the submission made by the parties herein and has also perused the relevant records, particularly the record of the learned Trial Court. In the impugned order dated 29.06.2022 the learned JMFC has recorded that the particulars of the offences under Section 279/304 A IPC have been explained to the accused person/petitioner and he was asked whether he wants to plead guilty or has any defence to make and on being explained the substance of allegations made, the petitioner herein pleaded guilty. As pointed out, the basis for the conclusion arrived at by the learned JMFC is the statement made by the accused/petitioner. 12. As is seen from the case of Ramengmawia (supra) the Hon'ble Guahati High Court at para 9 has noted that '...while a layman may plead guilty to a charge of murder due to the fact that he does not know the law, a man, who knows the law, may not plead guilty in similar circumstances. The man, thus, who has no knowledge of law, may suffer.... ' At para 25, the Court has observed that '...section 252 Cr.PC, which empowers a Magistrate, in the cases, which are triable by summons procedure, to convict the accused on 'his plea of guilty' requires that a Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict thereon...' 13. The learned JMFC by recording the statement of the accused/petitioner under Section 313 Cr.P.C has committed jurisdictional error which cannot be contemplated in law, since recourse to this Section is only after the whole body of evidence has been placed on record which was not the case in this case. It is also observed that the learned JMFC has indicated that the statement was recorded on being interpreted from Hindi allegedly spoken by the accused/petitioner, however there is no indication that the accused is acquainted with the Hindi language nor was the name of his interpreter indicated in the records. This is indeed, a glaring error which had apparently gone against the case of the accused/petitioner. 14. As submitted by the learned Sr. counsel for the petitioner, this Court is in agreement with submission that the petitioner could not have been convicted and consequently sentenced to undergo imprisonment on the basis of the procedure adopted by the learned Trial Court. 15. The incorrect application of law in this instant case has vitiated the proceedings and injustice was meted out to the petitioner by the impugned order of the Trial Court as well as that of the Appellate Court. 16. Accordingly, it is the considered opinion of this Court that the impugned order of the learned JMFC dated 29.06.2022 is not sustainable in law, hence the same is hereby set aside and quashed. Consequently, the impugned order of the learned Additional Deputy Commissioner dated 18.07.2022 is also hereby set aside and quashed. 17. Since a procedural defect has occurred in the proceedings, the merits of the case against the petitioner has not been decided and as such, the learned Trial Court is directed to proceed with the case at the stage of consideration of charges. 18. The conviction and sentenced passed against the petitioner vide impugned order dated 29.06.2022 being set aside and quashed, the petitioner is directed to join trial at the stage of consideration of charges. 19. The petitioner is directed to be released forthwith, if not required in some other cases and he is allowed to be enlarged on bail, on conditions: i. That he shall not abscond or tamper with the witnesses; ii. That he shall appear in Court as and when required; iii. That he shall execute a personal bond of Rs. 19. The petitioner is directed to be released forthwith, if not required in some other cases and he is allowed to be enlarged on bail, on conditions: i. That he shall not abscond or tamper with the witnesses; ii. That he shall appear in Court as and when required; iii. That he shall execute a personal bond of Rs. 20,000/- (Rupees twenty thousand) only along with two sureties of like amount, to the satisfaction of the Trial Court. iv. That he shall not leave the jurisdiction of India without the prior permission of the Court. 20. The petitioner shall appear before the court of the learned JMFC, Nongstoin on 28.10.2022 who shall proceed with the matter as directed. 21. Let copy of this order be issued upon the learned Judicial Magistrate First Class (JMFC), West Khasi Hills District, Nongstoin for compliance. 22. Registry is directed to send back the Lower Court case records. 23. Petition disposed of. No costs.