T.N.R. Tirumalpad, J.C.
1. In this case, the petitioner along with six others was prosecuted for offences punishable under Sections 188 and 143 I.P.C. on a complaint filed by the District Magistrate and they were convicted under both the sections on the basis of their admission of the offences and the Magistrate punished them to the maximum sentences under each, of the sections, namely, one month's S. I. under Section 188 and Six months' R. I. under
S. 143 I.P.C. The Magistrate did not give any reason why he awarded the maximum sentences under both the sections nor did he state whether the sentences were to run concurrently or consecutively, which meant that the sentences would run consecutively.
2. Alter the conviction and sentence, the petitioner was transferred to Nowgong Jail in Assam while the remaining accused were retained in Jail in Manipur itself. Those retained in Manipur filed an appeal to the Sessions Court in Criminal Appeal No. 52 of 1960 and the learned Sessions Judge set aside their conviction and sentence and acquitted them. Now the petitioner has filed this revision against his conviction and sentence and also prayed that the proceedings before the First Class Magistrate may be quashed under Section 561-A Cri. P.C.
3. A preliminary objection was taken for the respondent that the judgments of the Magistrate was pronounced on 8-6-1960 and this revision petition was filed on 14-9-1960 and that therefore there was considerable delay in presentation and for this one reason alone this petition should be dismissed. It was also pointed out that the petitioner ought to have filed an appeal before the Sessions Judge against his conviction and that therefore' this revision petition will not lie under Section 439(5) Cr. P.C.
But I cannot shut my eyes to the fact that the petitioner was transferred to Nowgong Jail in Assam soon after his conviction and thereby prevented from filing an appeal. Further if this application had been filed merely under Section 439 Cr. P.C. I may not have taken much notice of it. But it is also filed under Section 561-A Cr. P.C. If therefore I find that in order to secure the ends of justice it is necessary to interfere under Section 561-A, the delay or the failure to file an appeal cannot be allowed to stand in the way of the exercise of the inherent jurisdiction of this Court.
4. It was pointed out for the petitioner that he did not admit the offences with which he was charged and further that the so-called admission was not recorded as required under Section 243 Cr. P.C. and that even the recording did not show that he had committed the offences and hence his conviction was wrong.
5. I find that the Magistrate has recorded the plea of all the seven accused persons jointly and taken the signature of all the 7 accused in a joint statement. What is recorded is that it was a fact that the 'l persons went in procession near the Police Check Post at Khwairamband Bazar at 5-15 p.m. in the afternoon on 7-6-1960 raising certain slogans and further that it was known to all of them that there was a prohibitory order passed under Section 144, Cri. P.C. by the District Magistrate against holding such processions and raising such slogans within the Imphal Municipal area and 5 miles around and that all of them jointly violated that order with their knowledge and consent.
6. Now Sections 242 and 243, Cri. P.C. provide that when the accused appears before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall
be asked if he has any cause to show why he should not be convicted and further that if the accused admitted that ho has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the, words used by him.
This will mean that where there are more accused than one the plea of each of the accused should be separately recorded as nearly as possible in the words used by him. I am sure that in this case, the Magistrate must have asked each of the 7 persons separately after
stating the particulars of the offence why he should not be convicted and they must each have given separate answers. What is expected of the Magistrate under Section 243, Cri. P: C. is to
record separately what each accused separately mentioned to him in answer to the question put to him.
So, what is actually recorded in the form of a joint statement is not what each of the accused separately stated, but what the Magistrate subsequently wrote down as having been stated by all of them. No doubt he has got the signature of the 7 accused in the joint statement, but that is not what is expected of the Magistrate under Section 243 and what he has recorded as a joint statement cannot be said to serve the purpose of what the Magistrate had to do under Section 243, Cri. P.C.
7. It was argued by the Government Advocate that it was an irregularity which did not vitiate the conviction, and that it would be cured under Section 537, Cri. P.C. as it was not shown that it has occasioned failure of justice. But the matter does not appear to me to be so easy. The admission by each person accused of an offence must be recorded as nearly as possible in his Own words.
It is clear that all the 7 accused could not have used the exact words in answer to the Magistrate's question though in the subsequent recording of the joint statement the Magistrate may have recorded that all the accused used the very same words. It would look as if what transpired before the Magistrate and what is recorded in the joint statement were to some extent different. Hence this joint statement cannot be treated as a plea of guilty under Section 243 by all the accused persons.
8. If this was the only irregularity, I would, not have interfered in this petition, but what is recorded even in the joint statement did not amount to an admission of the offence under u first part of Section 188, I.P.C. All that the accused persons stated was that they went in procession raising certain slogans and that they did so knowing of the prohibitory order under Section 144,
Cri. P.C. and in violation of it. This will not however constitute an offence under Section 188-first part.
For a conviction under that section it had to be proved not merely that they disobeyed the prohibitory order knowing of the same, but that the said disobedience caused or tended to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any persons lawfully employed. That the disobedience caused or tended to cause obstruction, annoyance or injury or risk of the same to any persons lawfully employed was not admitted by any of the accused. It was for the prosecution to establish that fact even if the accused admitted the disobedience of the prohibitory order. Thus, there was really' no proof and no admission that the accused had committed the offence under the first part of Section 188, I, P. C- with which they were charged. The so-called admission cannot form the basis of a conviction. The conviction was therefore illegal.
8. It followed that there was no admission of the offence under Section 143, I.P.C. as it was necessary for a conviction under that section to prove that the common object of the persons composing the assembly was to commit an offence. It was necessary to prove that they had formed themselves into an assembly to commit the offence under the first part of Section 188, I.P.C. in order to convict them under Section 143. They did not admit this in the joint statement recorded by the Magistrate.
10. It is clear therefore that there has been a total failure of justice in this case and that it is necessary for this Court to interfere under Section 561-A.
11. It may also be mentioned that the age of the petitioner is seen to be 18 years. The Magistrate had no jurisdiction even if he found him guilty to punish him straightway to imprisonment under Section 6 of the Probation of Offenders Act. It was the duty of the Court to satisfy itself in the case of an accused who was under 21 years of age that it would not be desirable to deal with him under Section 4 of the Probation of Offenders Act before sentencing him to imprisonment. The judgment of the Magistrate shows that he has totally failed to apply the provisions of the Probation of Offenders Act before sentencing the petitioner to imprisonment.
12. It follows that the conviction and sentence of the petitioner cannot stand. The conviction and sentence are therefore set aside and he is acquitted. It is indeed unfortunate that the petitioner had to undergo the imprisonment and that his term is about to expire. But it shall be deemed that the petitioner has not been convicted and that he has not undergone the sentences.