IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.109 of 2006 V.Subramanian ... Petitioner/Defacto Complainant Vs. 1.The State by Sub Inspector of Police Karamadai Police Station Coimbatore ... Respondent/Complainant 2.Subban @ Subramanian 3.Palanichammy 4.Leelavathy 5.Ponnammal 6.Nanjammal 7.Ponnusamy ... Respondents/Accused 1 to 6 Prayer: Criminal Revision Case filed under Sections 397 and 401 Cr.P.C. to set aside the order of the learned Judicial Magistrate, Mettupalayam dated 09.11.2005 made in C.C.No.389/2005 and remand the matter for retrial to the court below to try and decide the case in accordance with law. For Petitioner : Mr.N.Anand Venkatesh For Respondent : Mr.R.Muniapparaj, (for R1) Govt. Advocate (Crl.Side) Mr.G.Karthikeyan, (R2 to R7) O R D E R This criminal revision case has been filed under Section 397 r/w 401 Cr.P.C by the injured/de-facto complainant questioning the legality of the judgment of the learned Judicial Magistrate, Mettupalayam dated 09.11.2005 made in C.C.No.389/2005 convicting the accused No.1 and 3 to 6 therein, who figured as respondents 2 and 4 to 7 in the revision case for offences punishable under Sections 147 and 323 IPC based on the plea of guilty made by them and the second accused, who figures as third respondent in the criminal revision case for offences punishable under sections 147 and 325 IPC based on his plea of guilty on the ground that there was an abuse of process of court, in so far as, according to the https://hcservices.ecourts.gov.in/hcservices/ petitioner, the Investigating Officer had chosen to file a charge- sheet for simple offences, whereas there were sufficient materials to make out a prima-facie case for a graver offence, namely an offence punishable under Section 307 IPC triable exclusively by a Court of Sessions. 2. It is the contention of the learned counsel for the petitioner in the criminal revision case that though there were sufficient materials to show that the respondents 2 to 7 herein (A1 to A6) made an attempt on the life of the petitioner and caused him simple and grievous injuries in such an attempt, the Investigating Officer chose to submit a final report alleging commission of lesser offences triable by the Judicial Magistrate and thus paved the way for the escape of the respondents 2 to 7 from being prosecuted for an offence exclusively triable by a Sessions court. 3. It is the further contention of the learned counsel for the petitioner that the haste in which the case was concluded by the learned Judicial Magistrate by convicting the accused persons accepting their plea of guilty, will amply demonstrate the clandestine method used by the Investigating officer to protect the respondents 2 to 7 from being prosecuted for a sessions offence. 4. On the other hand, the learned counsel for the respondents 2 to 7 contended that there was no wrong in the procedure adopted by the learned Judicial Magistrate convicting the respondents 2 to 7 herein for the offences alleged in the final report based on their plea of guilty and that if at all the petitioner had any grievance over the submission of the final report, he should have very well filed a petition under Section 482 Cr.P.C invoking the inherent powers of the high court rather than filing a criminal revision case against the judgment of conviction pronounced and the order of sentenced passed by the trial court. 5. As an answer to the above said contention of the learned counsel for the respondents 2 to 7, the learned counsel for the petitioner contended that the learned Judicial Magistrate, without application of mind to the materials placed before him in the form of final report and other documents accompanying the final report, especially the wound certificate, mechanically took the case on file for offences punishable under Sections 147 and 323 IPC against respondent No.2 and 4 to 7 and for offences punishable under Sections 147 and 325 IPC against the respondent No.3 and that the legality of such order taking cognizance of the case could be challenged by invoking the revisional powers of the High Court. 6. It is the further contention of the learned counsel for the petitioner that even assuming that the order taking cognizance of the case by the Magistrate and the judgment of conviction pronounced based on plea of guilty cannot be challenged by way of a revision, the legality of the sentence awarded by the trial court can be questioned in a revision alleging inadequacy of sentence on the ground of the sentence being not in consonance with the penal provision, as the mandatory punishment has not been awarded. https://hcservices.ecourts.gov.in/hcservices/ 7. In this case, accused No.1 and 3 to 6 (respondent no.2 and 4 to 7) were convicted for offences punishable under Sections 147 and 323 IPC. Both the offences are punishable with imprisonment for a term or fine or both. The learned Judicial Magistrate has chosen to impose a fine of Rs.250/- for the offence under Section 147 with a default sentence of one week simple imprisonment in case default in payment of fine and Rs.350/- for the offence under Section 323 with a default sentence of one week simple imprisonment in case default in payment of fine on each one of the respondents 2 and 4 to 7 (A1 and A3 to A6) without imposing any substantive punishment of imprisonment. Similarly the third respondent (A2) who was charged for committing offences punishable under Sections 147 and 325 IPC was sentenced to pay a fine of Rs.250/- for the offence under Section 147 IPC with a default sentence of one week simple imprisonment and with a fine of Rs.1,000/- with a default sentence of four weeks simple imprisonment for the offence under Section 325 IPC without imposing any substantive punishment of imprisonment. The offence under Section 325 IPC is punishable with imprisonment either of a description for a term which may extend upto seven years and also with fine. But the learned Judicial Magistrate has chosen to impose fine alone, without assigning any reason for not imposing substantive punishment of imprisonment. 8. The learned counsel for the petitioner has submitted that the said order of sentence is legally unsustainable; that the trial court ought to have imposed substantive punishment on respondent No.3 (A3) at least for the offence under Section 325 IPC and that it is a fit case in which the revisional powers of this court could be exercised in favour of modification and enhancement of punishment so far as respondent No.3 (Accused No.2) is concerned for the offence under Section 325 IPC. As a corollary to the above said submission, the learned counsel for the petitioner has also submitted that the very fact that the learned Judicial Magistrate failed to impose the mandatory punishment of imprisonment for the offence under Section 325 IPC, without assigning any reason, will also go to show that there was non-application of mind in not imposing any sentence of imprisonment and imposing a fine of meager amount alone for other offences against all the accused persons and that hence the judgment of conviction and the order of sentence of the trial court should be set aside and the matter should be remitted back to the trial court for fresh disposal according to law. 9. Though the learned counsel for the respondents 2 to 7 would contended initially that the conviction recorded by the trial court based on the plea of guilty made by the accused persons could not be stated to be erroneous or illegal and that the challenge made to the same should be rejected, after the demonstration of the learned counsel for the petitioner that there was either non-application of mind or deliberate omission to impose mandatory punishment of imprisonment for the offence under Section 325 IPC, that too without assigning any reason, the learned counsel for the respondents 2 to 7 has come forward with a contention that in case https://hcservices.ecourts.gov.in/hcservices/ this court comes to the conclusion that the order of sentence as against any one of the accused deserves to be modified on the ground that mandatory punishment prescribed for the offences has not been imposed, then the respondents 2 to 7/accused 1 to 6 are entitled to withdraw their plea of guilty and seek trial of the case as the plea of guilty could have been made pursuant to plea bargaining. In support of his contention, the learned counsel for the respondents 2 to 7 relied on the judgment of a learned single judge of this court in Gopal v. The State reported in 1999 CRI.L.J.813. In the said case, the accused who pleaded guilty was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.100/- with a default sentence of rigorous imprisonment for one month for an offence under Section 5 (i) of Arms Act r/w Section 25(i)(a) of Arms Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs.100/- with a default sentence of one month rigorous imprisonment for an offence under Section 3 of Arms Act r/w Section 25(1-B) of Arms Act. The conviction and sentence were challenged before the High Court by filing a criminal revision case. The learned single judge relying on the view expressed by the Hon'ble Supreme Court in Thippesamy v. State of Karnataka reported in AIR 1983 SC 747 that plea bargaining was illegal and violative of Article 21 of the Constitution of India chose to set aside the conviction and sentence and remand the case to the trial court for fresh disposal. 10. Of course a new chapter on plea bargaining making plea bargaining in cases of offences punishable with imprisonment upto seven years has been included in Crl.R.C and the same has come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing with plea bargaining will show that certain procedure prescribed for plea bargaining under Sections 265-A to 265-L of Cr.P.C are to be complied to make it a valid plea bargaining. As per Section 265-A, the plea bargaining shall be available to the accused charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding seven years. Section 265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a brief description of the case relating to which such application is filed, including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in a case in which he had been charged with the same offence. Sub-clause 4(a) is to the effect that if the court is satisfied with the voluntary nature of the application, then it shall provide time for working out a mutually satisfactory disposition of the case which may include giving to the victim by the accused compensation and other expenses. Section 265-C prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. Section 265-D deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. Section 265-E prescribes the procedure to be followed in https://hcservices.ecourts.gov.in/hcservices/ disposing of the cases when a satisfactory disposition of the case is worked out. Section 265-F deals with the pronouncement of judgment in terms of such mutually satisfactory disposition. Section 265-G says that no appeal shall lie against such judgment. Section 265-H deals with the powers of the court in plea bargaining. Section 265-I makes Section 428 applicable to the sentence awarded on plea bargaining. Section 265-J contains a non obstante clause that the provisions of the chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A. Section 265-K says that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of the chapter. Section 265-L makes the chapter not applicable in case of any juvenile or child as defined in section 2 (k) of Juvenile Justice (Care and Protection of Children) Act, 2000. 11. Unless the said procedure contemplated in Chapter XXI-A is followed the same cannot be a valid disposal on plea bargaining. Even though 'plea bargaining' is available after the introduction of the said amendment is available, in cases of offences which are not punishable either with death or with imprisonment for life or with imprisonment for a term exceeding seven years, the chapter contemplates a mutually satisfactory disposition of the case which may also include giving compensation to victim and other expenses. The same cannot be done without involving the victim in the process of arriving at such settlement. 12. In this case, the plea bargaining was not made in accordance with the procedure contemplated under the said chapter and the plea of guilty was made even before the introduction of the said chapter legalising plea bargaining. Therefore, as rightly contended by the learned counsel for the respondents 2 to 7, the plea of guilty made by the respondents 2 to 7 (A1 to A6) was against Article 21 of the Constitution of India and that hence the respondents 2 to 7 (A1 to A6) are at liberty to withdraw the said plea of guilty and seek trial of the case. Surprisingly the prayer made by the petitioner for setting aside the judgment of the trial court recording a conviction based on the plea of guilty and for remitting the case back to the trial court for fresh disposal has been conceded by the learned counsel for the respondents 2 to 7 (A1 to A6) relying on the above cited judgment of this court. In view of the same, this court comes to the conclusion that it becomes necessary to set aside the judgment of conviction pronounced by the trial court based on the plea of guilty made by the respondents 2 to 7 (A1 to A6) in C.C.No.389/2005 and remit the matter back to the trial court for fresh disposal according to law with an observation that the accused persons may avail the plea bargaining facility as per Chapter XXI-A of Code of Criminal Procedure, in which case the learned Judicial Magistrate, Mettupalayam shall give an opportunity to the victim (petitioner herein). https://hcservices.ecourts.gov.in/hcservices/ 13. In the result, this criminal revision case is allowed and the matter is remitted back to the Judicial Magistrate, Mettupalayam for fresh disposal in accordance with law. The fine amounts collected from the respondents 2 to 7 shall be refunded. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1.The Judicial Magistrate, Mettupalayam. 2.Thro' The Chief Judicial Magistrate, Coimbatore District. 3. The Sub Inspector of Police Karamadai Police Station Coimbatore 4.The Section Officer, Criminal Section, High Court, Madras. 5. The Public Prosecutor, High Court, Madras Crl.R.C.No.109/2006 pur(co) pmk.16.11.2009 https://hcservices.ecourts.gov.in/hcservices/