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The State of Mysore Vs. Shivanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ1146
AppellantThe State of Mysore
RespondentShivanna and ors.
Excerpt:
.....the accused what he has got to say because, the principle that no man should be condemned unheard, is perhaps the first and most important principle relating to the mode of administering justice and. where there are number of accused persons and the accusation is read over to them jointly and the magistrate records their plea of admission jointly, such an admission is bad in law......accused was considered as a plea of guilty and the learned magistrate has not convicted any of the accused persons under section 80 of the act, but however, his judgment shows that he has sentenced each one of the accused to simple imprisonment till the rising of the court and to pay a fine of rs. 20/- each, in default, to suffer s. i. for 20 days.2. section 80 of the act under which the accused have been convicted reads thus:gaming in a common gaming house etc. -- whoever is found in any common gaming house gaming or present for the purpose of gaming shall, on conviction, be punished with imprisonment which may extend to one year and with fine: provided that -- (a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred.....
Judgment:
ORDER

C. Honniah, J.

1. The facts that have given rise to this revision petition are these: 25 persons (respondents herein) were accused of having committed an offence under Section 80 of the Mysore Police Act, 1963 (hereinafter referred to as the 'Act'). The Second City Magistrate Mysore. before whom they appeared, asked all the 25 accused to show cause why they should not be convicted for the offence under Section 80 of the Act for having been found gaming with playing cards by staking money a game of chance called 'Rani Salu' or 'Andhar Bahar' or 'Village Horage' in a common gaming house in a shed belonging to one Thimmamma at Siddalingapura village in Mysore Taluk on the night of 10/11-1-1969 at about 12-30 a, m. when raided by the police under a search warrant. The judgment of the Court below shows that all the accused admitted that they were gambling with playing cards by staking money in the shed of one Thimmamma of Siddalingapura village in Mysore Taluk. That plea of the accused was considered as a plea of guilty and the learned Magistrate has not convicted any of the accused persons under Section 80 of the Act, but however, his judgment shows that he has sentenced each one of the accused to simple imprisonment till the rising of the court and to pay a fine of Rs. 20/- each, in default, to suffer S. I. for 20 days.

2. Section 80 of the Act under which the accused have been convicted reads thus:

Gaming in a common gaming house etc. -- Whoever is found in any common gaming house gaming or present for the purpose of gaming shall, on conviction, be punished with imprisonment which may extend to one year and with fine: provided that -- (a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees.(b) * * *(c) * * *

The State has filed this revision petition to enhance the sentence in conformity with the first proviso to Section 80 of the Act, The accused persons, as could be made out, are first offenders in this case. If the accused pleaded guilty as stated by the learned Magistrate to the accusation under Section 80 of the Act, the accused being first offenders, the sentence should be awarded in accordance with the first proviso to Section 80 of the Act. That proviso makes it obligatory that the imprisonment shall not be less than one month and the fine shall not be less than two hundred rupees. If that is so, the learned Magistrate was wrong in not imposing the sentence provided for.

3. Mr. Basavalingappa, the learned Counsel appearing for some of the accused persons, has relied upon Sub-section (6) of Section 439, Cr. P.C. which provides:

Notwithstanding anything contained in this Section, any convicted person to whom an opportunity has been given under Sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

The object of Section 439. Criminal P.C. is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of Procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals.

4. Section 439 Criminal P.C authorises the High Court to enhance the sentence. No reservation or limitation except that contained in Sub-section (3) is placed upon the exercise of this power and the High Court can therefore enhance sentence so as to alter its nature. Before the Court of revision enhances the sentence beyond that term, it should satisfy itself that the conviction is correct. It therefore follows that both the conviction and the sentence should be treated open to revision. The principle therefore is that the High Court can act as a court of revision in relation to the enhancement of sentence and it should not interfere with the discretion of the trial Court if the sentence passed is as provided in law. If the sentence passed is manifestly inadequate, then interference is necessary. The question of sentence is a matter of discretion primarily resting with the trial Magistrate and it is well settled that if that discretion has beer properly exercised, the High Court should not interfere unless there are very strong reasons. The power of enhancement of sentence can be exercised where the sentence passed is not according to law.

5. When the State files a revision to enhance the sentence as provided under the law, it is open to the accused to challenge the correctness of the conviction as provided in Sub-section (6) of Section 439 Cr. P.C. The accused has a right to show that the conviction is not justified in answer to a question calling upon him why the sentence should not be enhanced. Subsection (6) of Section 439 of the Code enables the High Court not only to refuse enhancement of sentence, but also to set aside the conviction if it: thinks that the conviction and sentence are equally unjustifiable.

6. In this case it is stated that the accused were playing a game of chance called 'Andhar Bahar' in a common gaming house, which is punishable under Section 80 of the Act, It is urged that the said accusation has not been read over and explained to each of the accused and their plea recorded as required under Section 242 Cr. P.C. The record must show that this has been done and must give the answer as early as possible in the words used. The accused should have a clear statement made to him; (1) that he is about to be put on the trial and, (2) as to the offence or facts constituting the offence with the commission of which he is accused. Section 242 Cr. P.C. only dispenses with a formal charge in a summons case, but it does not dispense with the statement of the. particulars of the offence for which the accused is to be dealt with. The purpose of questioning the accused under Section 242, Cr. P.C. is to apprise him of the charge against him. In effect, if there is a plea of guilty, there will be compliance with the provisions of Section 242. It is therefore clear from this provision that the particulars of the offence, of which a person is accused, shall be stated to him.

7. The first thing to be done in summons cases is to ask the accused what he has got to say because, the principle that no man should be condemned unheard, is perhaps the first and most important principle relating to the mode of administering justice and. in any record of the essentials of a fair trial. It is the last essential, which could be omitted.

8. Having regard to the provisions contained in Section 243, Cr. P.C. the proper construction that could be placed would be that the plea of the accused if it amounts to an admission of the offence of which he is accused, should be recorded as nearly as possible in his own words. If there are number of accused persons, the, plea of each of the accused should be separately recorded and in his own words after the accusation was read over to each one of them. Where there are number of accused persons and the accusation is read over to them jointly and the Magistrate records their plea of admission jointly, such an admission is bad in law.

9. In the instant case, there is nothing to indicate that the accusation was read over and explained to each of the accused. Nor is there anything to show that the Magistrate has put the accusation to each one of the accused persons and recorded their plea of guilty and certified to that effect at least to probabilise that there was a compliance with the provisions of Section 243, Criminal P.C. That being the case, the conviction (assuming that the Magistrate has convicted the accused) and sentence passed against the accused cannot be sustained. Further the plea of accused has been recorded in Hindi script and if that is read, it does not amount to a plea of guilty and that being the case, the conviction and sentence, on this ground also, cannot be sustained.

10. For the reasons stated above, the petition filed by the State fails and is dismissed. The conviction and sentence passed against the accused are set aside and they are acquitted. The fine, if paid by the accused, shall be refunded.


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