A.M. Bhattacharjee, J.
1. We have no doubt that this appeal must be allowed even on merits and the accused must be acquitted, even though the accused pleaded guilty and has been convicted by the learned Additional Sessions Judge on such plea, notwithstanding the apparent bar in Section 412 of the Code of Criminal Procedure against the maintainability of such an appeal except as to the extent or legalitv of the sentence.
2. The accused has been convicted under Section 304-A, Indian Penal Code and has been sentenced to undergo one month's rigorous imprisonment and to pay a fine of Rs. 300/- in default to suffer rigorous imprisonment for a further period of 15 days. The learned Additional Sessions Judge, 'upon consideration of all the documents referred to in Section 173' as required by Section 251-A of the Code of Criminal Procedure, 1898, by which this State is still governed, framed a charge against the accused as hereunder:-
I...hereby charge you Gariaman Lohar as follows:-That you on or about the 14th day of March 78. at Ranipool caused the death of Chaggu Bhutia by doing a rash or negligent act not amounting to culpable homicide, to wit. by driving your vehicle and thereby committed an offence punishable under Section 304-A of the Indian Penal Code, and within my cognizance. And I hereby direct that you be tried on the said charge.' It appears that the charge was explained to the accused by the learned Judge and that the accused pleaded guilty thereto.
3. There can therefore, be no doubt that if the charge could be and was leeally framed on the materials relevant therefor, and the accused pleaded guilty thereto, the conviction cannot be assailed though the sentence may be interfered with if it is excessive or illegal. It is, however, by now well-settled that though ordinarily in the case of a conviction on a plea of guilty there is a bar under Section 412. Code of Criminal Procedure for an appeal except as to the extent or legality of the sentence, but if the facts alleged or disclosed in the documents referred to in Section 173 do not amount to and cannot constitute any offence for which a charee has nevertheless been framed, a plea of guilty to such a charge is no bar to an appeal on merits and will not stand in the way of the accused being acauitted. This has been pointed out by the Division Bench of this Court in Puspa Kumar Rai v. State of Sikkim 1978 Cri LJ 1379 at p. 1382) and has been re-itereated in the later decisions in Rai Kumar Rai v. State 1979 Cri LJ 310 and Sonam Tshering v. State 1979 Cri LJ 1281 at p. 1288. This is also the view of the other High Courts, as will appear from the Madras High Court decision In re U. R. Ramaswami : AIR1954Mad1020 . on which reliance has been placed by Mr. A. Moulik. learned Advocate for the appellant, from the Madhya Pradesh High Court decision in State of Madhya Pradesh v. Mustaa Hussain : AIR1965MP137 and other cases.
4. Mr. Moulik has urged that the documents, on consideration whereof the charge was to be framed in this case, do not disclose anything on which a charge under Section 304-A could legally be framed. We have ourselves examined those documents with the assistance of Mr. Moulik and Mr. N. B. Kharga, the learned Public Prosecutor and we are satisfied that neither in the First Information Ragwort. nor in any of the statements recorded under Section 161. nor any other documents or statements which could legally be taken into consideration for the purpose of framing the charge, there was any allegation that the accused, driver at the relevant time was driving the vehicle at a high or abnormal speed or rashly or negligently in any other way. In fact two or the three alleged witnesses to the or currency had stated that near the turning of the Ranipool Police Check Post, where the occurrence took place, the truck driven by the accused was moving slowly and that the accused immediately stopped the vehicle on hearing the should that a person got struck up in the right wheel of the back side of the truck. The sine qua non for an offence under Section 304A, namely, rashness or negligence, was, therefore, singularly missing and the charge so framed must, therefore be regarded to be groundless and without any basis. There can be no doubt that any plea of guilty to a charge which is baseless and groundless is, as held by this Court in Sonam Tshering v. State (supra), no plea in law or at all and cannot be acted upon and. if acted upon and followed by conviction, cannot attract the bar of Section 412 to prevent the consideration of the appeal and acquittal on merits. We must, however, note that Mr. Kharga. the learned Public Prosecutor, has also very fairly conceded that on the materials on record it is difficult for him to justify the charge framed in this case.
5. There is also one serious defect in the charge itself as framed and as quoted hereinbefore. Rashness or negligence being the crux of an offence under Section 304A. the charge thereunder must allege that the act by which the death has been caused was rash or negligent. But in charge, the offending act has been described only as 'by driving your vehicle', without alleging that such driving by itself was rash or negligent. It goes without saying that any admission by the accused of causing death by driving a vehicle, without more, cannot amount to any admission of an offence under Section 304A.
6. If the matter rested at that only, we would have ordinarily sent back the case for retrial according to law after framing a proper charge. But now that we are satisfied that there were no materials on record to iustify the framing of the charge in this case, the entire case must fail, as it does, leaving no-scope or iustification to warrant any remand or retrial.
7. We had occasion to point out in Puspa Kumar Rai v. State (supra), (at p. 13841) of 1978 Cri LJ 1379 that a conviction on a plea of guilty is an exception to the general rule that prosecution must prove the case by legal reliable and unimpeachable evidence because such a plea is obviously not an evidence within the meaning of Section 3 or any other provisions of the Evidence Act. It is true that such a extraordinary course having been expressly sanctioned by th Cod in Section 243. Section 251A(5), Section 255. etc of is no doubt permissible. But the course being thus extraordinary and rather an exception to the ordinary notion of criminal trial, the care and caution to be exercised by the Court before resorting to sub a course should also be extraordinary. We feel that in the manner in which the learned Judge conducted this proceeding, he has not shown that he was alive to this leeal position.
8. In the result, we allow the appeal, set aside the conviction and the sentence and acquit the accused. The accused being on bail is discharged from his bail bond. Fine, if already paid shall be refunded.