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Union of India (Uoi) Vs. Jasbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectExcise;Criminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 614 of 1977
Judge
Reported in1981(8)ELT902(MP)
ActsCentral Excise Act, 1944 - Sections 9(1); Central Excise Rules, 1944 - Rule 151; Constitution of India - Article 21; Code of Criminal Procedure (CrPC) , 1973 - Sections 260, 377(2), 386 and 461; Indian Penal Code (IPC), 1860 - Sections 379, 380 and 381
AppellantUnion of India (Uoi)
RespondentJasbhai and anr.
DispositionAppeal dismissed
Cases ReferredKachhia Patel Shantilal Koderlal v. State of Gujarat and Anr.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 760 of 1976. objections of the respondents as well as the reply of the prosecutions though..........does not exceed two hundred rupees;* * * on a plain reading of this section, it is clear that the trial magistrate was not empowered to try the alleged offences summarily as the offence is punishable with imprisonment for a term exceeding two years.9. at this stage it would be pertinent to set cut the relevant portion of section 461 of the code :'461. irregularities which vitiate proceedings.- if any magistrate, not being empowered by law in this behalf, does any of the following things, namely :-* * * (m) tries an offender summarily; his proceedings shall be void.' in view of the forequoted section 461 of the code, it is transparently clear that as the trial magistrate was not empowered to try the respondents for the alleged offence summarily, the trials held by the trial court are.....
Judgment:

G.P. Singh, C.J.

1. This order shall govern the disposal of the companion appeals, Criminal Appeal No. 615 of 1977 (The Union of India v. Shri Jasbhai and Anr.); Criminal Appeal No. 616 of 1977 (The Union of India v. Shri Jasbhai and Anr.) and Criminal Appeal No. 617 of 1977 (The Union of India v. Shri Jasbhai and Anr.).

2. All these appeals are against the judgments of the Court of Judicial Magistrate First Class, Gadarwara dated 28-2-1977. Criminal Appeal No. 614 of 1977 is against the judgment in Criminal Case No. 760 of 1976; Criminal Appeal No. 715 of 1977 is against the judgment in Criminal Case No. 759 of 1976; Criminal Appeal No. 716 of 1977 is against the judgment in Criminal Case No. 757 of 1976 and Criminal Appeal No. 717 of 1977 is against the judgment in Criminal Case No. 758 of 1976. All the aforesaid criminal cases were instituted against respective accused person on a complaint filed by the Excise Department alleging that they had committed an offence under Section 9(1)(bb) of the Central Excises and Salt Act, 1944, (hereinafter referred to as 'the Central Excise Act') read with Rule 151 of the Central Excise Rules, 1944 (hereinafter referred to as 'the Excise Rules') by avoiding the payment of duty that was leviable to the extent not exceeding 1 lac of rupees and were liable to punishment under Section 9(1)(ii) of the Central Excise Act.

3. The punishment provided under Section 9(1)(ii) of the Central Excise Act is imprisonment for a term which may extend to 3 years or fine or both.

4. The trial Court held summary trials and on a plea of guilty by the accused persons in the respective cases conviated the respective accused persons and sentenced them to a fine of Rs. 260 each or in default to suffer imprisonment for a period of one month (nature of imprisonment whether simple or rigorous has not been clarified), vide its respective impugned judgments.

5. The Union Government (hereinafter referred to as 'the appellant') has filed the aforesaid appeals against the respective impugned judgments of the trial Court under Section 377(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the sentences awarded on the ground of its inadequacy and prayed for enhancement of the sentence to the respective accused persons (hereinafter referred to as 'the respondents').

6. At the outset a preliminary objection was raised on behalf of the counsel for the respondents, that the trial Court was not competent to try the cases summarily in view of the punishment provided for the alleged offences. The trial in respect of the cases, therefore, was illegal and void. The learned counsel for the appellant conceded to this legal position and submitted that the cases should be sent back for re-trial.

7. Section 9(1)(ii) of the Central Excise Act which provides the punishment for the alleged offence reads as under :

'9. Offences and penalties.-(i) Whoever commits any of the following offences, namely:-

* * *

(ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both.* * *

Thus it is clear that the punishment of imprisonment provided for the alleged offence is in excess of two years.

8. Section 260 of the Code so far as relevant reads as under :

'260. Power to try summarily.-(1) Notwithstanding anything contained in this Code -

(a) any Chief Judicial Magistrate;

(b) any Metropolitan Magistrate;

(c) any Magistrate of the first class specially empowered in this behalf by the High Court,

may, if he thinks fit, try in a summary way all or any of the following offences :

(i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

(ii) theft, under Section 379, Section 380 or Section 381 of the Indian Penal Code (45 of 1860), where the value of the property stolen does not exceed two hundred rupees;

* * *

On a plain reading of this Section, it is clear that the trial Magistrate was not empowered to try the alleged offences summarily as the offence is punishable with imprisonment for a term exceeding two years.

9. At this stage it would be pertinent to set cut the relevant portion of Section 461 of the Code :

'461. Irregularities which vitiate proceedings.- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely :-

* * *

(m) tries an offender summarily;

his proceedings shall be void.'

In view of the forequoted Section 461 of the Code, it is transparently clear that as the trial Magistrate was not empowered to try the respondents for the alleged offence summarily, the trials held by the trial Court are absolutely void.

10. If now advert to the Section 386 of the Code which deals with the powers of the appellate Court. Clause (c) (i) of this section provides that in an appeal for enhancement of sentence, the Appellate Court is competent to reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence. In view of my holding that the trial Court being not empowered to try the accused persons in respect of the alleged offence summarily and thus summary trials held by the trial Court are void, the proper course is to exercise the powers under Section 386 of the Code, Clause (c) (i) and send the cases for re-trial.

11. In the light of the foregoing discussion, I hold that the trials held in the aforesaid cases are void. I, therefore, set aside the impugned judgments of the trial Court as also the order of conviction and sentences recorded against the respondents by the trial Court and remand the case back to the trial Court so that the trial Court may proceed afresh with the cases and try them in accordance with law. It may be stated here that looking to the quantum of punishment provided, the instant cases have to be tried adopting the procedure of trial of warrant cases as provided in Chapter XIX, Head B- 'Cases instituted otherwise than on police report.'

12. Before parting with this order, it is necessary to observe that the trial Court has acted without the application of mind in proceeding with these cases. The order sheets, as would be referred hereafter, gives an impression that plea of guilty was entered by the respondents in consequence of an assurance held out by the prosecution and acquiesced by the learned Magistrate, that the accused persons (respondents) on their pleading guilty, would be let off with a very light sentence.

13. The complaint was instituted on 6-10-76 and after the appearance of the respondents, the cases were adjourned for supplying the copies of the concerned documents to the respondents. Then on 27-1-77 some objections were filed on behalf of the respondents and the cases were ordered to be posted for arguments on 28-2-77. On this date as per the order sheet of the trial Court, the counsel for the respondents requested the Court that the respondents wanted to plead guilty for the reasons incorporated in the order sheets. Thereupon the particulars of the offence were explained to the respondents and their plea which was a plea of guilty was recorded. The order sheet dated 28-2-1977 reads as under :

^^vfHk;ksxh }kjk Jh ,- ds- JhokLrovfHkHkk'kd vfHk;qDr d- ,e- lfgr ,oa 2 }kjk Jh flUgk vf/koDrk vfHk- e 2dh iwoZ ls gh Jh flUgk gkftjh ekQ gS A vfHk;qDrx.k ds fo}ku vfHkHkk'kd dkdguk gS fd og vius vkosnu i= tks U;k;ky; esa is'k fd;k gS ml ij cgl ughadjuk pkgrs A

vfHk;qDrx.k xqtjkr ds jgus okysgSa A dsUnzh; vkcdkjh foHkkx ls iwoZ esa gh vFkZnaM gks pqdk gS blfy,U;k;ky; ls Hkh fuiVuk pkgrk gwa D;ksafd vkus&tkus; esa vf/kd ijs'kkuh gksrhgS A vkcdkjh foHkkx esa vijk/k Lohdkj dj fy;k gS ;gka Hkh vijk/k Lohdkj djukpkgrs gSaa A

vfHk;qDrx.k dks vijk/k fooj.k i<+djlquk;k x;k Iyh fjdkMZ dh xbZ A vfHk;qDrx.k us vijk/k Lohdkj fd;k A fu.kZ; lquk;kx;k fnukafdr ,oa gLrk{kfjr fd;k x;k A izdj.k ekad ls fujLr fd;k tk; A

&&gLrk-; U;k- naMk-**

(The order sheet referred to hereinabove is from Criminal Case No. 760 of 1976. Objections of the respondents as well as the reply of the prosecutions though referred to in the aforesaid order sheets are not on record, that is not sent to this Court).

14. It is true that their is no specific evidence that the plea of guilty was entered by the respondents as a result of bargaining but the circumstances narrated hereinabove do give that impression; irrespective of the fact whether there was a bargaining between the prosecution and the accused-respondent, the trial Court was not justified in deviating from the legal procedure and trying the cases summarily. Even if the accused-respondents wanted to plead guilty not as a result of the assurance held out by the prosecution, the trial Court ought to have proceeded with the trial in accordance with law and recorded the plea of guilty following the procedure provided in Chapter XIX of the Code, provided for the warrant trial.

15. At this stage, I would quote with advantage a portion of the head note of the judgment of the Supreme Court in Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr. [(1980) 3 S.C.C. 121]:

'The course followed by the Magistrate showed that there was no application of mind by him to the case laid on behalf of the prosecution and he was a consenting party to the appellant being persuaded to enter the plea of guilty. It is contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution. It would have the effect polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through, a long and arduous criminal trial, which, having regard to our cumbrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be deflected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subversing the process of law and frustrating the social objective and purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. The conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal. Judicial Officer must discharge his judicial functions with the greatest sense of responsibility, particularly when it concerns the liberty of a person.'

16. In the result, the appeals are dismissed. The impugned judgments are set aside. The conviction and sentence of the respondents are also set aside and the cases are remanded back to the trial Court for re-trial, in the light of the observations made hereinabove.


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