CR.A/101/1998 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 101 of 1998 With CRIMINAL APPEAL No. 102 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus SHATRUNJAYA EXPRESSOR LTD. & 1 - Opponent(s) ====================================== Appearance : MR MR MENGDE, A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR MJ DAGLI for Opponent(s) : 1 - 2. MR PARTHIV B SHAH for Opponent(s) : 2, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 10/03/2008 ORAL JUDGMENT Being aggrieved and dissatisfied with the impugned judgment and CR.A/101/1998 2/4 JUDGMENT order passed by the learned Magistrate First Class, Umargaon ('ld.Magistrate', for short) on 26.8.1997, in Criminal Case Nos.642/1997 and 643/1997, the State of Gujarat preferred these appeals under Section 377 of the Code of Criminal Procedure, 1973 ('Code', for short). Since the facts and the question of law involved in both these appeals are common, and on behalf of both the parties common arguments were advanced in connection with both these appeals, both these appeals are disposed of by this common judgment. 2. The original complainant – Government Labour Officer filed two criminal complaints against the respondent-accused for the offence punishable under Section 9(2) of the Payment of Gratuity Act, 1972 ('Act', for short) on account of breach of Rule 4(1) of Rule 19 of Payment of Gratuity (Gujarat) Rules, 1973. The accused appeared before the ld.Magistrate, and it transpires that the accused pleaded guilty and therefore, the ld.Magistrate accepting the plea of guilt, passed the impugned judgment and order dated 26.8.1997, whereby the accused was sentenced to undergo imprisonment till rising of the Court and to pay fine of Rs.500/-. 3. On behalf of the appellant – State, learned A.P.P. Mr.Mengde drawing the attention of this Court to Sub-section 2 of Section 9 of the Act stated that the sentence prescribed by the statute is imprisonment for one year, but which shall not be less than 3 months or a fine to the extend of Rs.20,000/-, but which shall not be less than Rs.10,000/- or both. Therefore, it was submitted that the sentence imposed is inadequate, even in context of statutory provisions contained in the Act. Therefore, it is submitted that the appeal be allowed by setting-aside the impugned judgment and order passed by the ld.Magistrate, and the accused be appropriately punished in accordance with law. CR.A/101/1998 3/4 JUDGMENT 4. On behalf of the respondent-accused, learned counsel Mr.Parthiv Shah submitted that it is true that the ld.Magistrate imposed sentence less than the minimum, and it is true that no discretion was available to the ld.Magistrate to impose minimum sentence as was imposed by the ld.Magistrate. Therefore, the ld.counsel for the respondent-accused stated that appropriate directions be issued in this judgment. 5. First of all Section 9 of the Act reads as under:- “9. Penalties – (1) Whoever, for the purpose of avoiding any payment to be made by himself this Act or of enabling any other person to avoid such payment knowingly makes or causes to be made any false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to [ten thousand rupees] or with both. (2) An employer who contravenes, or makes default in complying with any of the provisions of this Act or any rule or order made thereunder shall be punishable with imprisonment for a term [which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both]: Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than [six months but which may extend to two years] unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition of a fine would meet the ends of justice.” 6. Now, in the instant case on account of breach of Rule 4(1) and Rule 19 of the Payment of Gratuity (Gujarat) Rules, 1973 as stated in Criminal Case Nos.643/1997 and on account of breach of Rule 3(2) and Rule 6(2) of the Payment of Gratuity (Gujarat) Rules, 1973 as stated in Criminal Case No.642/1997, the penal Section would be Sub-section 2 of Section 9 of the Act. It clearly transpires that the ld.Magistrate could not CR.A/101/1998 4/4 JUDGMENT have imposed less sentence than that prescribed under the law. In the instant case, the ld.Magistrate imposed sentence of imprisonment till rising of the Court and the fine of Rs.500/- . However, it becomes clear that the plea of the accused was recorded by the ld.Magistrate in both the cases on 26.8.1997, and it does not appear that the attention of the accused was drawn by the ld.Magistrate, that in case if he pleads guilty, the minimum sentence which the ld.Magistrate was required to pass was simple imprisonment for 3 months or fine of Rs.10,000/- or both, and no minimum sentence than that prescribed under the Act can be imposed by the ld.Magistrate. Under such circumstances, it also becomes clear that at the time when the plea was recorded, the accused was not made known about the statutory provisions and even the ld.Magistrate ignoring the statutory provisions contained in the Act regarding the sentence, delivered the impugned judgment and order. Therefore, it becomes clear that the plea as it was recorded by the ld.Magistrate, cannot be said to be a legal, valid and correct plea. Under such circumstances, the natural consequences would be, by setting-aside the impugned judgment and order delivered by the ld.Magistrate, by allowing both these appeals, both the cases are required to be remanded to the Court of ld.Magistrate for disposal in accordance with law. 7. In the result, both these appeals are allowed, and the impugned judgment and order passed by the ld.Magistrate dated 26.8.1997 in Criminal Case Nos.642/1997 and 643/1997 are hereby set-aside and both the cases are remanded to the Court of ld.Magistrate with a direction to dispose of both the cases as expeditiously as possible in accordance with law. (J.C. Upadhyaya, J.) binoy