G. Mehrotra, J.
1. This is a revision on behalf of Austin Rufus who has been convicted by the Magistrate under Sections 338 and 279 of the Indian Penal Code and sentenced to six months' rigorous imprisonment under Section 338 and to pay a fine of Rs. 100/- in default two months' rigorous imprisonment under Section 279, Indian Penal Code.
2. The prosecution case briefly against the applicant is that on 25-12-1956 at about 7-30 A. M. at Margheritabazar, he was driving a jeep No. WGU-926 rashly and negligently so as to endanger human life and fell into a nulla causing some grievous injury to himself and simple injury to Mrs. Chinthia Rufus, wife of his brother. In the jeep, there was the, applicant's brother Alfred Rufus and his two young children. On these facts, the applicant was sent up for trial under Sections 338 and 279, Indian Penal Code.
3. The Magistrate, on the receipt of the police report, fixed 5-4-1957 for the production of the accused and ultimately he appeared on 16-5-1957 and was allowed to be released on bail. On 15-6-1957, the next date fixed for hearing, the magistrate after perusal of the police diary framed charge under Section 279 and Section 338, Indian Penal Code against the applicant and he was asked to make a statement. Thereupon the accused pleaded guilty to the charge.
His statement was recorded by the magistrate and he was convicted on his admission of guilt under Section 338 and Section 279 of the Indian Penal Code. On appeal to the Sessions Judge, the conviction was upheld although the Sessions Judge seems to be of the opinion that the framing of the charge was not justified on the materials. Under Section 412, Criminal P. C. in appeal, he could only interfere to the extent 9f the legality of the sentence awarded. He therefore reduced the sentence and upheld the conviction of the applicant.
4. In revision before me, it is contended by the counsel for the applicant that this Court can examine the merits of the case under Section 439, Criminal Procedure Code. There is no bar to this Court examining the merits of the case and finding out for itself whether the charge is supported by any evidence or not. It appears in the present case that no witness was examined in court. The magistrate followed the procedure laid down under Section 251A (3) of the amended Criminal Procedure Code and framed the charge against the applicant. This sub-section provides as follows:
'If upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that there is ground for presuming that the accused had committed an offence triable under this chapter, which such Magistrate is competent to try and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.'
The contention is that if the magistrate had examined the documents referred to under Section 173 of the Criminal Procedure Code, he could not have formed an opinion that any charge could be framed against the applicant. From the police report and from the statements recorded by the investigating officer, a copy of which is supplied to the accused, it will appear that five witnesses were examined by the police. Out of these five witnesses, three of the witnesses are not in a position to state under what circumstances the incident happened.
They are also not in a position to state if the applicant himself or his elder brother, who was also inside the jeep was driving. The other two witnesses were the brother of the applicant and his wife. They have both stated that Mr. Alfred Rufus was driving the jeep. Under the circumstances, it cannot be said that the material before the magistrate was sufficient to frame the charge against the applicant.
Apart from this question, this Court can examine the materials and find out if the conviction is justified on materials even if it is based on admission of the guilt. This power will have no meaning unless this Court can examine the materials and come to the conclusion whether the materials were such as to warrant the conclusion of guilt. The statement of the accused admitting the guilt is no evidence against him. If the Court is satisfied that the Magistrate could not come to the conclusion that the applicant was guilty under Sections 279/383, there is no bar to interfere with that finding under the revisional Dowers, even if there was an admission of the guilt. This point has been considered by more or less all the High Courts in India.
5. In the case of Narasinhaswamy v. Indian Dominion, AIR 1951 Orissa 31, a Bench of the Orissa High Court held that 'reading Sections 435 and 439 together, it is evident that the High Court can interfere in all cases of incorrectness, illegality or impropriety of any finding, sentence or order, or the irregularity of any proceedings of the inferior courts by taking such measures or passing such orders as could be passed by an appellate Court. The provision in Section 439(1) to the effect that a Court of revision should exercise the powers of a Court of appeal only means that it should exercise the power which a Court of appeal in an appeal legally entertainable by it can do.
Therefore, even though no appeal would lie to an appellate court under Section 412 against an order of conviction based on the accused's own plea of guilty except as to the extent or legality of the sentence the High Court in its revisional jurisdiction may interfere with the conviction as distinguished from merely the sentence if it satisfies itself that the finding is either incorrect or illegal or improper.' In this case, the petitioner had been convicted under Sections 7 and 8 of the Act XXIV of 1946 by the Sub-Divisional Magistrate and was sentenced to two months' rigorous imprisonment and to pay a fine of Rs. 50/- in default to further imprisonment for two months. The case against the petitioner was that on 16-6-1948 he was attempting to transport by road 12 maunds and 17 lbs. of rice in small gunny bags which were kept concealed amongst bags containing tamarind from the right side of the Indravati river to the left side in contravention of Govt. order and the petitioner pleaded guilty to the charge before the trial court, who convicted him as aforesaid.
6. All the ingredients which made an offence with which he was charged were specifically pointed out to the accused, he had pleaded guilty; but still the High Court came to the conclusion that the conviction was not proper and set aside the same. Similar view was taken by Orissa High Court in an earlier case reported in King v. Hari Baisakh, AIR 1950 Orissa 88. To the same effect is the decision of the Patna High Court in the case of Krishna Chandra v. Emperor. AIR 1943 Pat 313. In that case also all the material facts which were alleged against the accused were put to him and he admitted all the facts; still on the examination of the evidence, irrespective of the statement of the accused, the High Court came to the conclusion that the evidence was not sufficient to make out a case against the petitioner and he was acquitted in revision.
To similar effect is the decision, of the Madras High Court in the case of In re, Arunachala Goundan, AIR 1948 Mad 492. That the High Court has power to interfere in its revisional jurisdiction against conviction, though based on the plea of guilty, had been recognised by the Bombay High Court in the case of Emperor v. Nana Shahu, AIR 1943 Bom 209. Although in that case the reference was not accepted as the High Court came to the conclusion that the evidence was sufficient to prove the charge against the applicant. But the power of the High Court to examine the conviction on its merits was accepted in this case also.
7. Therefore it appears that under Section 439 Criminal Procedure Code, this Court can examine the evidence on which the conviction is based, irrespective of the plea of guilty. The Senior Govt. Advocate has contended that in the present case, under Section 251-A(3), the Magistrate on the perusal of the record before him had jurisdiction to form an opinion and frame a charge and it cannot be said that there was no material before him. This court will be reluctant to examine the sufficiency or otherwise of the materials before the Magistrate.
I do not think that there is anything which bars this Court to examine the validity of the conviction irrespective of the plea of guilty. It is certainly open to this Court to examine the charge and see whether the material was such as to warrant any conviction under Sections 338 and 279, Indian Penal Code. As has been pointed out earlier, there is no evidence to prove that the applicant was driving the jeep and the question of his being charged under Sections 338 and 279, Indian Penal Code does not arise.
8. I therefore allow this revision, set aside the
conviction and sentence passed against the applicant.