Derawar Singh Vs. State of Rajasthan - Court Judgment

Excerpt:
- - provided further that if the magistrate is satisfied that any document referred to in clause (iv) is voluminous he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court. 57, a division bench of the gauhati high court, while setting aside conviction of the appellant therein, held that the police papers were not furnished to the accused-appellant therein as enjoined by sub-section (2) of section 207 of the code and, therefore, the division bench had strong doubt whether the police papers were furnished to the accused and the statements which were considered to be the plea of guilty was fully, fairly and adequately recorded by the magistrate. there is abundant authority that the provisions of section 243 are of mandatory nature and that the failure to comply with the same would vitiate the trial and render the conviction legally invalid. 15. in the instant case, it is evident from the record that an application was promptly filed by the petitioner before the trial court that he has not pleaded the guilty and that he was made to believe something otherwise than what actually has been recorded against him and also specifically denied the charges by making an application, which clearly goes to show that the plea of guilty, though not in adequate words and according to the petitioner has not been made by him, recorded by the trial court does not appear to be a voluntary entering into a plea of guilty by the petitioner.h.r. panwar, j.1. with the consent of the learned counsel for the parties, the revision petition is finally heard and being decided at the admission stage.2. by the order dated 10.4.2006, the record of the trial court was requisitioned, which has been received.3. the petitioner has been convicted by the judgment and order dated 20.3.2006 passed by the additional chief judicial magistrate, barmer (for short, 'the trial court' hereinafter) in criminal case no. 272/2004 for the offence under section 19/54 of the rajasthan excise act, 1950 (for short, 'the act' hereinafter) on the plea of guilty entered into by him and sentenced to undergo two years simple imprisonment and a fine of rs. 1000/-, in default of payment of fine further to undergo one month's simple imprisonment. the conviction and sentence recorded by the trial court is on the plea of guilty and, therefore, in view of the provisions of section 375 of the code of criminal procedure, 1973 (for short, 'the code' hereinafter), the impugned order is not appealable, hence this revision.4. i have heard learned counsel for the petitioner and the public prosecutor for the state. perused the judgment and order impugned, as also the record of the trial court.5. it is contended by the learned counsel for the petitioner that the challan was filed against the petitioner by the police under section 173 of the code in absence of the petitioner on 13.1.2004 and the petitioner has not been supplied with the copy of the police challan papers and, therefore, there is violation of the provision of section 207 of the code. section 207 of the code reads as under: 207. supply to the accused of copy of police report and other documents. in any case where the proceeding has been instituted on police report, the magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report;(ii) the first information report recorded under section 154;(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164;(v) any other document or relevant extract thereof forwarded to the magistrate with the police report under sub-section (5) of section 173;provided that the magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the magistrate thinks proper, shall be furnished to the accused;provided further that if the magistrate is satisfied that any document referred to in clause (iv) is voluminous he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court.6. from the perusal of the record of the trial court, it nowhere appears that on filing the challan (final report) under section 173 of the code, copies thereof have ever been supplied to the petitioner or his counsel. even from the order sheet of the trial court dated 13.1.2004, it nowhere appears that the copies of the challan papers, as envisaged under section 207 of the code, had ever been supplied either to the accused-petitioner or his counsel. it is evident from the record that on the date of filing of the challan, the petitioner was not before the trial court. thereafter till he was convicted and sentenced, it nowhere appears that any such copy of the challan papers, as required to be furnished to the accused under section 207 of the code, had ever been furnished to the petitioner and, therefore, till recording of the plea of guilty, the petitioner had no occasion to know what the case against him is and what is the evidence proposed to be produced by the prosecution in trial.7. in wazamao and ors. v. the state of nagaland 1983 cri.l.j. 57, a division bench of the gauhati high court, while setting aside conviction of the appellant therein, held that the police papers were not furnished to the accused-appellant therein as enjoined by sub-section (2) of section 207 of the code and, therefore, the division bench had strong doubt whether the police papers were furnished to the accused and the statements which were considered to be the plea of guilty was fully, fairly and adequately recorded by the magistrate.8. in narayana kani v. state of kerala : air1960ker391 , the kerala high court held as under: the charge-sheet has also made mention of a certain order obtained by the sub-inspector of police who filed the charge- sheet, from the office of the superintendent of police. though this description is inconclusive, it can and might refer to the sanction obtained by the superintendent of police, but it cannot be held, that by pleading guilty, the petitioner had also admitted, that the prosecution was supported by the necessary sanction. there is nothing on record to show, that a copy of the sanction was furnished to the revision petitioner under the provisions of section 251-a of the criminal procedure code, except a general statement that copies of the documents referred in section 173 cr.p.c. have been furnished to him. in these circumstances, the proper course seems to me to be, to quash the conviction and order a recommencement of the proceedings from the inception. the procedure under section 251-a cr.p.c. has to be gone through, after furnishing a copy of the sanction relied on, to the revision petitioner. 9. in the instant case, before recording the plea of guilty, the petitioner, on his arrest, filed a bail application wherein he categorically stated that he has been implicated falsely in order to harass him under a conspiracy as also to incur expenses. from the bail application, it no where appears that the petitioner ever admitted that he has committed the offence for which he has been charged. not only this, on the very day, on which the plea of guilty entered by the petitioner and recorded by the trial court, the petitioner filed an application before the trial court stating therein that he was made to believe something other than what has been recorded and stated that in fact nothing has been recovered from him and he is denying the allegation and wishes to face the trial.10. from the perusal of the charge framed and the plea of guilty allegedly to have been entered by the petitioner, it appears that the trial court recorded 'offence accepted' (**vijk/k lohdkj gs**'). it has not been specifically mentioned as to what plea of guilty has allegedly entered into by the petitioner and what exact words the petitioner stated while entering the plea of guilty, therefore, it is not possible to spell out as to what the charge he understood and in what words the petitioner admitted the charge on a plea of guilty. while entering the plea of guilty, it nowhere appears that the petitioner admitted that he was in possession of the illicit liquor of the quantity and make mentioned in the charge. in absence of supply of police papers (charge sheet), as envisaged under section 207 of the code, the petitioner never knew till entering into the plea of guilty as to what the case against him is. the admission of the petitioner while entering into the plea of guilty is required to be recorded, as nearly as possible, in the words used by him.11. in state v. thomba 1971 cri.l.j. 734, the manipur high court, while considering the provision of sub-section (5) of section 251 -a and section 243, as also sub-section (2) of section 255 of the old code, held that there are two other provisions in the code which are almost analogous to sub-section (5) of section 251-a, cr.p.c. the first provision is to be found in section 243, criminal p.c., which falls in chapter xx bearing the heading 'of the trial of summons cases by magistrates' and the other is sub-section (2) of section 255 criminal p.c., which finds place under chapter xxi with the heading 'of the trial of warrant cases by magistrates'. the later provision relates to warrant case instituted otherwise than on police reports. the language used in the two provisions is almost identical with that employed in sub-section (5) of section 251-a. section 243 states that the admission of the accused 'shall be recorded as nearly as possible in the words used by him', while sub-section (2) of section 255 provides that 'the magistrate shall record' the plea of guilty entered by the accused. there is abundant authority that the provisions of section 243 are of mandatory nature and that the failure to comply with the same would vitiate the trial and render the conviction legally invalid.12. in mahant kaushalya das v. state of madras : 1966crilj66 , the hon'ble supreme court held as under: 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 'pleaded 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 circumstances 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. 13. in state v. banshi singh : air1960mp105 , the madhya pradesh high court held as under: under section 251a (5) the magistrate has a discretion to convict an accused who pleads guilty or to proceed with the trial. but the plea of guilty must be clear and unambiguous. it is an admission of all the facts on which the charge is founded and also on admission of guilty in respect of them. such a plea must be recorded as nearly as possible in the very words of the accused so that an appellate or revisional court may determine whether they really amount to an admission of guilty and what is more, whether the lower court understood the accused correctly. in order that a conviction may be sustained on a plea of guilty, it must appear that the accused admitted in his pleas all the elements of the offence. it demands still greater caution when the accused on an earlier occasion denied the accusation against himself. 14. in bharat teli and ors. v. state of meghalaya and anr. 1983 cri.lj. noc 92 (gauhati), it has been held as under: the safeguard provided in section 252, namely, that the plea must be recorded as nearly as possible in the words used by the accused is a wholesome provision and any departure from this would not be in the interest of justice as superior courts must know what question was put to the accused and what was his real answer, to decide for itself if the plea of guilt was really so. the fact that the offence was petty is not relevant for this purpose as conviction in a petty offence may also carry stigma and may affect persons in many ways. concern for speedy disposal, another reason ascribed by the appellate court, is misplaced as recording of the plea of guilt in the language of the accused cannot stand in the way of quick disposal, because the time taken in this exercise in a petty offence based on simple facts would be very short some minutes only. what is sacrificed on the other hand by not complying with this requirement is the constitutional right against compulsory self incrimination and the legal right to confront one's accusers. held, the trial was vitiated due to non-recording of the plea of guilt by the accused in their own words as nearly as possible. 15. in the instant case, it is evident from the record that an application was promptly filed by the petitioner before the trial court that he has not pleaded the guilty and that he was made to believe something otherwise than what actually has been recorded against him and also specifically denied the charges by making an application, which clearly goes to show that the plea of guilty, though not in adequate words and according to the petitioner has not been made by him, recorded by the trial court does not appear to be a voluntary entering into a plea of guilty by the petitioner.16. keeping in view the various infirmities noticed above and the fact that the provision of section 207 of the code has not been complied with as the copies of the police challan papers had never been supplied to the petitioner before framing the charge and entering the plea of guilty by the petitioner and, therefore, the judgment and order impugned, convicting and sentencing the petitioner, is vitiated and, thus, liable to be set aside.17. in view of the aforesaid discussion, the revision petition is allowed. the judgment and order impugned dated 20.3.2006 passed by the additional chief judicial magistrate, banner in criminal original case no. 272/2004, convicting and sentencing the petitioner is hereby set aside and the matter is remained to the trial court with the direction to supply the copies of the challan papers to the petitioner and thereafter to proceed afresh with framing of the charge and if the petitioner denied the charge, to hold trial of the case. the application for suspension of sentence stands disposed of.