IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3523 of 2008() ------------------------------ CRA.1018/2007 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA CC.364/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, VADAKARA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- GEORGE K.JAMES, S/O.K.V.CHACKO, AGED 44 YEARS, KUZHIKKATTU HOUSE, KARIMANNOOR DESOM, KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DIST. BY ADV. SRI.T.V.GEORGE SMT.LINDA GEORGE SRI.K.N.BALACHANDRA KAIMAL SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3523 OF 2008 ------------------------------------------ Dated this the 10th day of November, 2008 O R D E R Revision petitioner is the accused in C.C. 364 of 2006 on the file of Judicial First Class Magistrate, Vadakara. The petitioner was charge sheeted for the offence under Section 379, 337 and 338 IPC. When the particulars of the offence was read over and explained, petitioner pleaded guilty. He was sentenced to a fine of Rs.1000/- for the offence under Section 279 IPC and simple imprisonment for one month and a fine of Rs.1000/- for the offence under Section 338 and Rs.500/- for the offence under Section 337 and in default simple imprisonment for one month. Petitioner challenged the conviction before Additional Sessions Court, Vadakara in Crl.Appeal 1018 of 2007. Learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner and the learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Magistrate did not explain and made the petitioner aware of the implications of pleading guilty and petitioner was persuaded to CRRP3523/08 2 plead guilty on the impression that he will be awarded only fine and not imprisonment and therefore learned Magistrate was not justified in accepting pleading guilty. It is therefore argued that the conviction is to be set aside. Reliance was placed on the decision of Apex Court in Thippeswamy v. State of Karnataka (1983 SC 747), Mahant Kaushalya Das v. State of Madras (1966 SC 22) and Division Bench decision of this Court in Provident Fund Inspector v. Mohammed (1980 KLT 698) and Chathukutty v. S.I. of Police (1987 (2) KLT 967). 4. The judgment of the learned Magistrate reveals that petitioner was represented by a counsel and petitioner pleaded guilty in the presence of the counsel and the plea was made when the particulars of the offences were read over and explained to him. Therefore the case is distinct from the facts of the cases considered by the Apex Court and Division Bench of this Court where the plea was raised by an illiterate accused, who does not know the language and had no opportunity to consult a counsel. In Thippeswamy's case (supra) the accused was awarded a sentence of imprisonment in revision by the High Court, while accepting his plea the Magistrate awarded him only a sentence of fine. Apex Court found that when the accused was CRRP3523/08 3 made to plea bargaining, making him believe that he will be sentenced only for fine and awarded only a sentence of fine, revisional Court was not justified in enhancing the sentence and even if it is found that the sentence awarded is disproportionate, the case should have been remanded to the Magistrate for fresh disposal. In Mahant Kaushalya Das's case (supra) the accused was from Uttar Pradesh, who was not only illiterate but only knows the colloquial Hindi of Uttar Pradesh. He did not get legal advice. His pleading guilty was accepted, which was challenged before the Apex Court. It was found that he was not made aware of the consequence of pleading guilty and did not get assistance of a counsel and therefore the pleading guilty should not have been accepted. On the facts of the case in Mohammed's case (supra) Division Bench of this Court found that the Magistrate did not make aware the accused, the provisions for which he will be convicted if pleaded guilty and sentenced and in one of the cases convicted even the section quoted is wrong. It is in such circumstances this Court found that the pleading guilty should not have been accepted. In Chathukutty's case (supra), the Division Bench found that the accused did not get the benefit of assistance of a lawyer and CRRP3523/08 4 records do not establish that the accused was made aware of the consequence of pleading guilty and therefore pleading guilty should not have been accepted. 5. Facts here are different. Here petitioner was convicted on accepting pleading guilty. The pleading was at a time when petitioner was assisted by a counsel. Therefore it cannot be said that petitioner pleaded guilty without knowing the consequence, even though learned counsel argued otherwise. Moreover, it is to be borne in mind that pleading guilty in this case was subsequent to the incorporation of Chapter XXI A in the Code of Criminal Procedure enabling an accused to raise plea bargaining. If petitioner was making plea bargaining, he should have complied with the procedure provided under Chapter XXI A especially section 251 of Cr.P.C. Therefore I cannot agree with the learned counsel that the order of conviction was bad in law. 6. Then the question is whether in the facts and circumstances of the case interest of justice warrants modification of the sentence. Section 279 IPC provides for imprisonment as well as fine. Learned Magistrate only awarded a fine. The offence under section 338 IPC provides for CRRP3523/08 5 imprisonment which may extent to two years or fine, which may extent to Rs.1000/- or both. It is to be borne in mind that section 338 IPC is an offence for causing grievous hurt by rash and negligent act and it is only a lesser degree of the offence under section 304A of IPC. In such circumstances when the learned Magistrate sentenced petitioner to undergo imprisonment and did not award a fine alone, it cannot be said that the sentence is illegal. But considering the facts, interest of justice will be met if the substantive sentence is reduced to imprisonment till rising of the Court in addition to the fine imposed by the learned Magistrate. Revision is therefore partly allowed. The conviction is confirmed. Sentence of fine for the offences under sections 279, 337 and 338 of IPC are confirmed. Substantive sentence for the offence under section 338 of IPC is modified to imprisonment till rising of Court in addition to the fine. M. SASIDHARAN NAMBIAR, JUDGE Okb/-