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State of Gujarat Vs. Bhiya HuseIn Koreja - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR34
AppellantState of Gujarat
RespondentBhiya HuseIn Koreja
Cases ReferredKishorchandra Bhanushanker v. Bhavnagar Municipality
Excerpt:
.....not know the intricacies of law. it needs no discussion to say that the explanation given by the learned magistrate is not convincing and that he has failed to meet with the allegations which are made against him by the accused and his advocate mr. the advocate's affidavit clearly shows that there was something in the nature of radical departure from the normal practice which a magistrate is expected to follow when cases are tried by him, and if that was so, it was expected of the learned magistrate to have denied without the least hesitation as to what was stated by the learned advocate or the same was in the nature of an effort to misguide the higher court. and if, in pursuance to that, if a citizen pleads guilty before learned magistrate, i am satisfied that the same would amount to..........18.3. after the evidence of p.w. 1 was recorded, it transpires the record of the case that the learned magistrate recorded the statement of the accused and the accused pleaded guilty. the accused also filed his written statement (exh. 19) wherein also he pleaded guilty and prayed for mercy. the learned magistrate on the aforesaid evidence convicted the accused under sections 279, 337 and 304a of the indian penal code and also under sections 116 and 112 of the motor vehicles act and sentenced him to suffer simple imprisonment till the rising of the court and to pay a fine of rs. 25/-for each of the aforesaid offences. he was fined totally to the extent of rs. 125/-and in default of payment of fine, he was sentenced to suffer simple imprisonment for three days for each of the offences......
Judgment:

D.H. Shukla, J.

1. The respondent herein, Bhiya Husein Koreja, of Nani Chirai, was tried in summary case No. 672/78, by the learned judicial Magistrate, First Class, Anjar, under the charge that on 10-8-78, he had driven a truck bearing No. GTY 3725 in a rash and negligent manner on account of which he caused the death of one Vijay Amratlal and was consequently charged for having committed the offences under Sections 279, 337 and 304-A of the Indian Penal Code read with Sections 116 and 112 of the Motor Vehicles Act. It appears that the accused pleaded not guilty to the charges levelled against him, in consequence of which the trial had commenced. Thereafter, the prosecution had examined witness Madhusudan Jayantilal (P.W.I), who supported the Prosecution case.

2. Madhusudan Jayantilal was studying in the 8th standard. He deposed that on 10-8-1978, he was returning from the school in the evening and at that time he was accompanied by his co-student deceased Vijay Amratlal. The witness was riding the cycle and the deceased Vijay Amratlal had sat on the pillion but he did not find himself comfortable on the pillion. Therefore, he got down. The witness was then riding the cycle slowly and deceased Vijay Amratlal was walking by the side of the cycle. The witness then deposed the way in which Vijay came to be injured. He deposed that when they were near Savasaur Naka, truck No. GTY 3725 rushed in front of them having been driven in a reckless manner by the accused. Both of them become nervous. The truck dashed against both of them as a result of which the witness was thrown by the side and deceased Vijay was actually run over. The witness was badly injured on his right hand, but Vijay was more badly injured in consequence of which he died. There was no cross-examination of this witness by the learned Advocate Mr. Bayad, who represented him in the trial Court. It further appears from the record of the case that the complaint was given by the same Madhusudan Jayantilal and it is to be found at Exh. 18.

3. After the evidence of P.W. 1 was recorded, it transpires the record of the case that the learned Magistrate recorded the statement of the accused and the accused pleaded guilty. The accused also filed his written statement (Exh. 19) wherein also he pleaded guilty and prayed for mercy. The learned Magistrate on the aforesaid evidence convicted the accused under Sections 279, 337 and 304A of the Indian Penal Code and also under Sections 116 and 112 of the Motor Vehicles Act and sentenced him to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 25/-for each of the aforesaid offences. He was fined totally to the extent of Rs. 125/-and in default of payment of fine, he was sentenced to suffer simple imprisonment for three days for each of the offences. The order of the learned Magistrate was dated 19-3-1979.

4. Against this order of conviction and sentence, the State of Gujarat has preferred the present appeal wherein it is submitted that looking to the gravity of the offence committed by the accused, the sentence imposed by the learned Magistrate is inadequate and hence a prayer is made for the enhancement of the sentence.

5. At the time of the hearing of the appeal, Mr. Y.S. Mankad, the learned Advocate for the accused, filed an affidavit of the accused dated 28-3-1980. It is submitted by the accused in the affidavit that he had not pleaded guilty, and the trial against him had proceeded, but thereafter the learned Magistrate induced him to make a plea of guilty under the inducement that if he pleaded guilty, lenient punishment would be imposed on him. The complainant side had also told him to plead guilty because they wished that the trial should result into conviction, which conviction would be useful to them in the proceedings for compensation, which were pending before the Motor Accidents Claims Tribunal. The accused further submits that he is a poor man and did not know the intricacies of law. He was losing his wages because he had to attend the Court. The accused further submitted that considering his age and circumstances, the lenient view taken by the learned Magistrate be maintained and the notice for the enhancement of the sentence may be discharged. In the alternative, he submitted that he may be given a chance of a re-trial by remanding the case for a fresh trial so that he would be able to defend himself and meet with the Prosecution case, Mr. Mankad invited my attention to two authorities, namely 17 G.L.R. 1002 (State of Gujarat and Anr. v. Bhupendrakutnar Hargovinddas Shah) and 18 G.L.R. 367 (Valubha Mahuba v. Contractor Danubha Devubha and Ors.)

6. I thought it may not be proper to rely on the sole affidavit of the accused and inquired from Mr. Mankad as to whether the learned advocate who appeared for the accused at the time of the trial would file his affidavit to let me know as to what exactly transpired during the trial. Thereafter, Mr. Mankad has filed the affidavit of Mr. Ismailbhai Umarbhai Bayad, Advocate. Mr. Bayad has deposed in his affidavit that he was the advocate for the accused in the trial. He has further deposed that when the matter was being proceeded with in the trial Court after a few adjournments on 19th March, 1979, there was discussion with the learned Magistrate Shri Dharani, who in terms told him that if the accused pleaded guilty, he would show mercy and pass very lenieat punishment of fine only, that is to say Rs. 25/-only and no substantive punishment for jail would be awarded. Mr. Bayad further deposed that he was also told on behalf of the relatives of the deceased that they were not interested in sending the accused to jail. Instead if the accused confessed full compensation could be had from the M.A.C. Tribunal. Mr. Bayad further deposes in his affidavit that the learned Magistrate had told the accused also that if he pleaded guilty, the Court would show mercy and he would be let off with lenient punishment of fine of Rs. 125/-and that no jail sentence would be given. Mr. Bayad further deposes in his affidavit that from the beginning the accused was not ready and willing to plead guilty, but he (Mr. Bayad) persuaded him to plead guilty because the learned Magistrate was inclined to impose the sentence of fine only. Mr. Bayad further deposes that not only that he gathered the impression from the discussion that the learned Magistrate would impose fine only, but he was sure that he would keep his word, because in similar cases, under Sections 229, 304-A of the I.P.C. and under Sections 116 and 112 of the Motor Vehicles Act, he had passed such orders only and had shown mercy and no jail sentence was awarded whenever the accused in the respective cases before him pleaded guilty to the charges, as suggested by the defence. Mr. Bayad further deposes that therefore instantly he relied upon the word and he advised and persuaded the accused to plead guilty. Then after the accused pleaded guilty and Mr. Bayad told the learned Magistrate that he would not cross-examine the child witness. Mr. Bayad further deposes that on this understanding in fact he did not cross-examine the witness. Immediately thereafter, the plea of confession on the terms suggested by the Court was filed there and then and immediately thereafter there and then the learned Asstt. P.P. filed a Purshis dropping as many as 21 other prosecution witnesses, who would have been otherwise required to be examined to prove the guilt of the accused. Mr. Bayad further deposes that immediately thereafter the judgment was written and pronounced awarding the lenient punishment of simple imprisonment till the rising of the Court and fine of Rs. 25/-on each count, totalling to Rs. 125/-. Mr. Bayad lastly deposes that all this happened on the same day and that the relatives of the deceased obtained the full award as prayed for in M.A.C.T. Application.

7. I have at length quoted from the affidavit of the learned Advocate, Mr. Bayad in order to bring out the clear picture of the developments at the time of the trial of the accused.

8. I directed to send the copies of the affidavits of the accused and advocate Mr. Bayad to the learned Magistrate concerned seeking his explanation on the contents of the said affidavits. The explanation tendered by the learned Magistrate is received. The contents of the explanation given by the learned Magistrate concerned go to show that he has dodged the allegations which are so categorically made by Mr. Bayad. The learned Magistrate has submitted in his written explanation dated 14-4-1980 that only after the cross-examination of the accused and Mr. Bayad, the exact position can be known. He has further submitted that no weight can be attached to these affidavits as both of them are interested persons. He has further submitted that he could not give any detailed explanation till he had seen the record of the case. He has further stated that he had decided the case on merits and that Mr. Bayad had omitted to cross-examine the child witness voluntarily. He has further submitted that the language in which Mr. Bayad had filed his affidavit shows that it was not his language, and as regards the affidavit of the driver, he has stated that considering the class from which the accused comes, he would not be knowing English, whereas he has filed his affidavit in English. It needs no discussion to say that the explanation given by the learned Magistrate is not convincing and that he has failed to meet with the allegations which are made against him by the accused and his advocate Mr. Bayad.

9. In the ruling referred to by Mr. Mankad reported in 17 G.L.R. 1002 (Supra), the facts were similar to the present case. From the perusal of the ruling it appears that the explanation filed by the learned Magistrate in this case is still on a weaker ground. Surti J. observed in the reported ruling, 'His halting mind to deny emphatically the material portion of the learned Advocate's affidavit can be seen even from the report which he has submitted to this Court. He should have at once stated that 'ne denied to have entered into any such discussion as stated by the learned Advocate in his affidavit. The Advocate's affidavit clearly shows that there was something in the nature of radical departure from the normal practice which a Magistrate is expected to follow when cases are tried by him, and if that was so, it was expected of the learned Magistrate to have denied without the least hesitation as to what was stated by the learned Advocate or the same was in the nature of an effort to misguide the higher court. No such report is submitted by the learned Magistrate to this Court, but, in the instant case, apart from the nature of report submitted by the learned Magistrate to this Court in respect of the affidavit of the learned Advocate, I am more concerned and worried about a fair trial being denied to a citizen.' It was further observed, 'In the instant case, where the victim died on the very night in question, there were three natural eye witnesses. Prima facie, I do not see any justification as to why one day's simple imprisonment and a fine of Rs. 2500 were awarded to respondent accused by way of punishment. This/sort of punishment is also indicative of the fact that the learned Magistrate must have given an assurance to the respondent's advocate that he would impose a nominal fine only for the commission of the alleged offence.' It was further observed, 'what had happened in the Court of the learned Magistrate is certainly deplorable, but surely, as observed above, without entering much into the affidavits filed by the learned Advocates in this Court, suffice it to state that even if a tittle of assurance is given to a citizen by any Magistrate that lighter punishment would be imposed on him for pleading guilty to the alleged offences; and if, in pursuance to that, if a citizen pleads guilty before learned Magistrate, I am satisfied that the same would amount to the denial of a fair trial to a citizen and this Court, cannot and should not countenance any application for enhancement of sentence.' The following observations need to be reiterated since it appears that they had no impact on the learned Magistrate, 'The moment a fair trial is denied to either of them, it is the duty of this Court to see that a fair trial is given both to the State and to a citizen. This is a case where an impression is created in the mind of accused, that if he pleaded guilty, even for the commission of serious offences, he would go practically scot-free having obtained an order of lighter punishment against him. I need hardly emphasise that, in such serious offences, if lighter punishment is imposed on any citizen, it hardly reforms a citizen or causes any deterrent effect in the minds of the offenders. It is needless to emphasise that by such lighter punishment, even the purpose of the penal provision contained in Section 304-A of the Indian Penal Code and the Motor Vehicles Act would be completely frustrated.'

10. In the case reported in 18 G.L.R. page 365, N.H. Bhatt J. observed, 'This High Court had an occasion to deal with such a situation and the case is the case of Kishorchandra Bhanushanker v. Bhavnagar Municipality 10 G.L R. p. 866. The view which I have stated above was expressed there also. Even apart from the judicial precedent, the procedural law is too clear to be tinkered with. Such short-cuts ultimately reflect adversely on the fair name of the administration.' In that case, the Magistrate had given benefit of the provisions of the Probation of Offenders Act and had bound the accused over for the period of two years and directed him to furnish his personal bond and a security bond in the sum of Rs. 750/-. He had also placed the accused under the supervision of the Probation Officer.

11. The present case shows a more disappointing picture of the way in which the learned Magistrate had hushed up a trial. The observations made by Surti J., and which have been quoted hereinabove in extenso eloquently show how such short-cuts impair a fair trial and 1 do not think any useful purpose would be served by my adding anything to it. I would only observe here that not only the order of the learned Magistrate is erroneous and contrary to what is expected of a Magistrate in a trial, but the explanation given by him is all the more disappointing.

12. Under these circumstances, the appeal for the enhancement of the sentence is required to be dismissed and the case is required to be remanded to the trial Court for a re-trial in accordance with law.

The result is that the order of the learned Magistrate dated 19-3-1979 in Summary Case No. 672/78 is hereby set aside and the matter is remanded to the trial Court for a re trial in accordance with law. In view of the fact that quite a long time has elapsed, the case is directed to be disposed of as expeditiously as possible.


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