D.H. Shukla, J.
1. The respondent herein Shanabhai Shankerbhai Gohel, is the original accused in Criminal Case No. 43/78, which proceeded before the Chief Judicial Magistrate, Bharuch and wherein the respondent was charged for an offence under Section 409 of the Indian Penal Code, vide charge (Exh. 2). It was alleged against the accused that being a Sarpanch of the Gram Panchayat of the village of Aladar, he was a public servant and during his status as such, he misappropriated a sum of Rs. 630-40 ps. and committed the aforesaid offence. The respondent pleaded not guilty to the charge which was levelled against him vide Exh. 3. Thereafter, the complainant, Rameshchandra Trikamlal Meckwana was examined as a witness for the Prosecution (Exh. 7) and after his examination-in-chief was over, the matter was adjourned to 16-11-1978. On that day, the respondent vide Exh. 18 made a confession and prayed for the mercy of the Court. The records show that prosecution witness No. 1, the complainant, was thereafter not cross-examined and the learned Chief Judicial Magistrate held the respondent guilty under Section 409 of the Indian Penal Code but instead of sentencing him at once he suspended the sentence and released the respondent on probation of good conduct on a condition to furnish a security for Rs. 1,000/-for a period of one year and be of good behaviour during the said period and to appear as and when called upon by the Court to receive the sentence under Section 5 of the Probation of Offenders Act.
2. Being aggrieved by this order of the learned Chief Judicial Magistrate, the State of Gujarat filed the present appeal under Section 377 of the Criminal Procedure Code for enhancement of the sentence. When the appeal was taken up for hearing, the respondent filed his affidavit submitting therein that after the evidence of Prosecution witness No. 1 was over to the extent of examination-in-chief, he was told by his advocate, Police Prosecutor and the learned Magistrate that he would be dealt with very leniently and no imprisonment would be imposed on him. He has further submitted that he had done in fact the work of filling sand for the full amount, but as Talati was inimical to him, Talati entered only Rs. 752/-and took his signature. He was not educated and had studied only upto Gujarati Standard fourth. He has requested that the matter may be remanded and that he may be tried in accordance with law.
3. Even apart from this affidavit, it clearly appears even from the perusal of the record of the case that the learned Chief Judicial Magistrate has fallen a prey to the temptation of securing an early disposal of the matter by the practice popularly known as plea bargaining. Times out of number such a practice is deprecated and it seems that the observations made even in the reported cases have fallen on deaf ears. In the case of Kasainhhai Abdulrehmanbhai Sheikh etc. v. State of Gujarat and Anr. reported in : 1980CriLJ553 , Bhagwati J. speaking for the Division Bench, made the following observations:
It is highly regrettable that the prosecution as well as the learned Magistrate should have been a party to any such plea bargaining in a prosecution for adulteration involving the health and well-being of the community.
He further observed:
The Magistrate trying an accused for a serious offence like adulteration must apply his mind to the evidence recorded before him and, on the facts as they emerge from the evidence, decide whether the accused is guilty or not. It must always be remembered by every judicial officer that administration of justice is a sacred task and according to our hoary Indian tradition, it partakes of the divine function and it is with the greatest sense of responsibility and anxiety that the judicial officer must discharge his judicial function, particularly when it concerns the liberty of a person. The course followed by the learned Magistrate in the present case clearly 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 and, acting mechanically on the plea of guilty as extracted from the appellant, he appeased his insensitive conscience by recording a finding of conviction against the appellant and let him off with a mere sentence of imprisonment till the rising of the Court and a nominal fine.
His further observations are also pertinent and I have reproduced the same to impress upon those concerned with the exercise of judicial powers that plea bargaining is an antithesis to the discharge of judicial functions:
It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our mind contrary to public policy to allow a convict/on 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 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 unfolded in Maneka Gandhi's case.... This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that 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.
4. Considering the record of the present case, the remarks made by Bhagwati J. apply to the present case a fortiory as the respondent was charged with the serious offence under Section 409 of the Indian Penal Code.
5. It remains also to be noted that the learned Chief Judicial Magistrate has overlooked the legal position that the benefit of the provisions of Probation of Offenders Act (1858) cannot be extended to one who is charged for an offence which entails punishment with imprisonment for life as in the case of Section 409 of the Indian Penal Code. P. Jaganmohan Reddy J. in the case of Som Nath Purl v. State of Rajasthan : 1972CriLJ897 , speaking on behalf of the Full Bench stated:
On behalf of the appellant it was urged before the High Court that as the appellant had to face a trial extending over more than three years incurring enormous expenses for coming to and fro from Chandigarh where he was practising law and was also in Jail for some time, the benefit of the Probation of Offenders Act should be given to him. This contention was rejected because the provisions of that Act, were inapplicable in view of his conviction under Section 409.1. P C. As the offence of criminal breach of trust under Section 409 I.P.C. is punishable with imprisonment for life, the High Court in our view was right because the provisions of Section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death of imprisonment for life.
6. The punishment prescribed for the offence under Section 409 of the Indian Penal Code is imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. The alternative punishment of lesser than imprisonment for life however makes no difference as the decision stands amply clarified in the case of Jugal Kishore Pared v. State of Bihar : 1SCR875 . Khanna J., observed thus:
Plain reading of Section 6 makes it manifest that it deals with persons under twenty-one years of age who are found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life. As imprisonment for life can also be awarded for the offence under Section 326 read with Section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of Section 6. To hold otherwise, would have the effect of ignoring the words 'but not with imprisonment for life' and treating them to be otiose Such a construction is plainly not permissible. It is not correct to say that the offences excluded from the purview of the section are only those offences wherein punishment prescribed is imprisonment for life and not for a lesser term. The plain meaning of the section is that the section cannot be invoked by a person who is convicted for an offence punishable with imprisonment for life. The fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life. The policy underlying the Act appears to be that it is only in cases of not very serious nature, viz. offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act. Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case.
7. There is no manner of doubt therefore that the learned Chief Judicial Magistrate has committed an error in giving the benefit of the provisions of the Probation of Offenders Act to the present respondent. In view of the fact that the learned Chief Judicial Magistrate prima facie appears to have reached the conclusion of guilt against the respondent without even waiting till P.W. 1 was cross-examined, it becomes necessary, after setting aside the conviction of the respondent, to remand the matter for a retrial in the interest of justice and fairplay to the respondent.
8. In the result, the appeal for the enhancement of the sentence stands only partly allowed and I set aside the judgment and order of the learned Chief Judicial Magistrate, Bharuch dated 12-12-1978 and remand the case for the retrial in accordance with law of the present respondent from the stage at which his plea of guilt was recorded.
9. While his trial begins from the stage at which it was left when his plea was recorded, the learned Chief Judicial Magistrate will ignore the plea of guilty entered by the respondent and shall proceed with the case after giving an opportunity to the prosecution to lead such additional evidence as may be found fit and then allow the respondent to enter upon his defence.