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Chhotu Bhagirath Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1972CriLJ548; (1972)GLR794
AppellantChhotu Bhagirath
RespondentThe State of Gujarat
Cases ReferredSukhdeo Singh v. State
Excerpt:
- - 3. i find good deal of substance in the reference because it is evident that the learned judicial magistrate who has tried this case has not observed the mandatory provisions of law as contained in section 243 of the criminal procedure code, which is found in the following terms: the magistrate concerned failed to record the separate statements of the accused persons but merely recorded a composite answer 'yes' of all the accused persons, while recording their plea under section 243 of the code. in air 1932 sindh 211. it was held that where the magistrate records one admission for a number of accused-persons, the admission is bad......raikot in criminal case no. 408 of 1971 under section 120(b) of the indian railways act. the learned magistrate is found to have imposed a fine of rs. 25/- for the said offence and has further ordered that in default of the payment of the fine the accused shall undergo s. i. of one week. originally the accused had filed an appeal before the learned sessions judge, but this appeal was converted into revision. in the appeal memo, the accused has made a grievance that his conviction under section 120 (b) of the indian railways act. was not justified as he was a railway servant. for this proposition the accused relied upon the decision given by a division bench of the bombay high court in gurunath shankar v. emperor air 1937 bom 357. wherein it is held that section 120 of the railways.....
Judgment:
ORDER

T.U. Mehta, J.

1. This reference is preferred by the Court of Sessions Judge Rajkot. District Rajkot, in Criminal Revision Application No. 19 of 1971 of his file which was preferred by accused Chhotu Bhagirath, who was one of the two accused persons convicted by the Special Judicial Magistrate. First Class (Railways) Raikot in Criminal Case No. 408 of 1971 under Section 120(b) of the Indian Railways Act. The learned Magistrate is found to have imposed a fine of Rs. 25/- for the said offence and has further ordered that in default of the payment of the fine the accused shall undergo S. I. of one week. Originally the accused had filed an appeal before the learned Sessions Judge, but this appeal was converted into revision. In the appeal memo, the accused has made a grievance that his conviction under Section 120 (b) of the Indian Railways Act. was not justified as he was a Railway Servant. For this proposition the accused relied upon the decision given by a Division Bench of the Bombay High Court in Gurunath Shankar v. Emperor AIR 1937 Bom 357. wherein it is held that Section 120 of the Railways Act is not intended to include any act done by a railway servant acting as such. The learned Sessions Judge who has made this reference, has however found that this decision is not applicable to the facts of the case because, there is nothing in the record to show that the accused was a railway servant at the relevant time. But the learned Sessions Judge has preferred to make this reference on the ground that the plea of the accused is not recorded by the learned Magistrate as contemplated by Section 243 of the Criminal Procedure Code.

2. I have perused the original record of the learned Railway Magistrate. It is found that the allegation against the accused was that at the time of the incident. the accused had indulged in abuses and altercation which would interfere with the comfort of other passengers. Section 120 (b) of the Railways Act contemplates an offence of the commission of nuisance or act of indecency or the use of obscene or abusive language. Section 120 (c) contemplates the offence of interfering without lawful excuse with the comfort of any passenger. When the accused was brought before the learned Railways Magistrate, following question was put to him:

The complaint is read over to you. Do you want to show cause why you should not be convicted for an offence under Section 120 (b) of the Indian Railways Act.

Below this question is recorded the plea of the accused as under:

Both plead guilty.

It should be recalled here that during the course of the trial the accused was accused No. 2 while his co-accused Manharlal Girdharlal, was accused No. 1. The trial of the accused was a summary trial of a summons case, and therefore this was a case which was governed by the provisions contained in Chs. 20 and 22 of the Criminal Procedure Code. The learned Sessions Judge is of the opinion that the manner in which the learned Railway Magistrate has recorded the plea of the accused is not in accordance with the law and, therefore, the whole trial should be treated as vitiated and a retrial of the accused should be ordered.

3. I find good deal of substance in the reference because it is evident that the learned Judicial Magistrate who has tried this case has not observed the mandatory provisions of law as contained in Section 243 of the Criminal Procedure Code, which is found in the following terms:

If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.

This section provides that if the accused admits that he has committed the offence his said admission should be recorded by the Magistrate, as nearly as possible, in the exact words used by him. If the Magistrate fails in doing so then obviously he does not provide any record to the appellate or the revising authority to know in what actual words the accused had pleaded guilty and also to judge whether the said words really amounted to a plea of guilty or not. The reason behind the rule requiring the Magistrate to record the plea of the accused as nearly as possible in his own words, is that the appellate or the revising authority can come to its own conclusion as to whether the plea of the accused really amounted to a plea of guilty. The procedure contemplated by Section 243 is very important and substantial because a plea of guilty raised by an accused would debar him from preferring an appeal against his conviction. Under these circumstances, it would not be open to any court to disregard the specific provisions contained, in Section 243 of the Criminal Procedure Code and non-compliance of this provision would, therefore, not be controlled by the provisions contemplated by Section 537 of the Criminal Procedure Code.

4. So far as this case is concerned the record of the learned Judicial Magistrate. who has tried the case shows that he has not recorded the plea of guilty of the accused in his own words. What the learned Magistrate has recorded is a note of the mental impression, which he carried after hearing the plea of the accused. Such a note cannot be said to have been made in the words of the accused. Moreover, in order to carry out this specific provision contained in Section 243 of the Criminal Procedure Code, what is required is the separate record of the plea of each of the accused persons where more than one accused are jointly tried in one case. This is obviously not done by the learned Magistrate. He has simply made a note that both the accused persons pleaded guilty. Such an abbreviation not indicating what the accused persons have pleaded, cannot be said to be the record of the plea of the accused 'as nearly as possible' in his own words.

5. I am supported in this view by several judicial decisions. I will first refer to the decision given by the Supreme Court in Mahant Kaushalva Das v. State of Madras : 1966CriLJ66 , wherein also a note, similar to the one found in this case, was made by the learned Magistrate at the time of recording the plea of the accused under Section 243 of the Criminal Procedure Code. The point was raised before the Supreme Court that the record of the plea of the accused in this manner is in violation of the requirements of Section 243 of the Criminal Procedure Code. The Supreme Court has observed as under after quoting the provisions of Section 243 of the Code.

It is stated by the Magistrate in his report that the Particulars of the offence were explained to the appellant by the Bench Clerk Shri M. Sukumara Rao and that the plea of guilty by the appellant was interpreted to the Court by the same Bench Clerk. It is manifest from the record that the admission of the appellant has not been recorded 'as nearly as possible in the words used by him' as required by Section 243 of the Criminal Procedure Code. It is true that in the judgment dated March 22. 1963, the Magistrate has said that the appellant 'pleads guilty'. but the record contains no indication whatsoever as to what exactly the appellant admitted before the Magistrate. In our opinion the requirements of Section 243 of the Criminal Procedure Code are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid. The requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension.

A similar point also arose before the Lucknow Bench of Allahabad High Court in Hansrai v. State : AIR1956All641 . In that case several accused were tried summarily at one trial for offence under Sections 120 and 121 of Railways Act. The Magistrate concerned failed to record the separate statements of the accused persons but merely recorded a composite answer 'yes' of all the accused persons, while recording their plea under Section 243 of the Code. The Court observed that whenever an accused in a summary trial admits to have committed the offence of which he is accused, what is admitted should be recorded 'as nearly as possible in his own words' because the rule embodied in Section 243 of the Code is very salutary rule being necessary for the protection of the accused and proper administration of justice. In AIR 1932 Sindh 211. it was held that where the Magistrate records one admission for a number of accused-persons, the admission is bad. In a Mysore case of Akil Pasha v. State of Mysore 1967 Cri LJ. 1422 (Mvs) one joint statement of the accused persons was recorded at the time of recording their plea under Section 243 of the Code. The Court held following the above referred decision of the Supreme Court that such a procedure is in contravention of Section 243 of the Code and. therefore, vitiates the whole trial. In a prior Allahabad case of Sukhdeo Singh v. State : AIR1951All410 . a similar view is taken.

6. Under the circumstances. I am of the opinion that the trial of the accused is vitiated. In view of these findings. I do not find it necessary to go into the other questions raised by the learned Sessions Judge in his reference.

7. I therefore, allow this reference on the ground stated above, and set aside the order of conviction and sentence passed by the learned Magistrate of the trial court against the accused. The case is however, remanded back to the trial Court for fresh trial and disposal according to law.


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