1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1706 OF 2009 Devendra Arvind Desai .... Petitioner Vs. The State of Maharashtra .... Respondent Mr.Subhash Jha, Advocate i/by M/s Law Global for Petitioner. Mrs.M.M. Deshmukh, APP for State. Coram : SMT.R.P.SONDURBALDOTA, J. Date : 25th September, 2009 P.C. 1. The short question that falls for consideration in this Writ Petition is whether the learned Sessions Judge was justified in remanding the matter to the trial Court for retrial. Mr. Jha, the learned Counsel for the Petitioner relying upon the decision of the Apex Court in Ukha Kolhe vs. State of Maharashtra, reported in A.I.R.1963 Supreme Court, Page 1531 submits that the order of retrial of a criminal case is not passed ordinarily and that it is to be made only in exceptional cases. He places specific reliance upon the following observations of the Apex Court. 11. “An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the 2 Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons”. The Apex Court then, after taking note of the absolute slipshod manner of recording of evidence by the prosecution in the trial, held that, instead of directing the retrial and re- opening the entire proceeding, resort to the procedure prescribed by Section 428(1) of The Code of Criminal Procedure was preferable and gave directions accordingly. 2. The petitioner herein was found driving motor vehicle under the influence of liquor. He was got examined from the Hospital. It was found that he was under the influence of alcohol. Therefore, charge-sheet came to be filed against him under Section 185 Motor Vehicles Act and he was immediately produced before Special Metropolitan Magistrate, Mazgaon. The learned Magistrate convicted the petitioner of the offence charged and sentenced him to simple imprisonment for two days. The order passed by the learned Special Metropolitan 3 Magistrate is a “rubber stamp” order. It is passed by filling up blanks in the rubber stamp of the order got prepared by him. The order reads as follows : O “ACCUSED PRESENT IN PERSON. CHARGE EXPLAINED TO HIM. Two days simple ACCUSED PLEADS GUILTY. imprisonment I CONVICT THE ACCUSED AND SENTENCED HIM TO PAY A FINE ......----...... I/D TO SUFFER S.I. FOR .....2..... DAYS/MONTH.” P.RETURNED/CONFISCATED TO ACCUSED TO GOVT. 26/9/07 LD. Spl. Metropolitan Magistrate,Mazgaon. (The words printed in italics above are handwritten by the learned Judge) 3. The petitioner challenged his conviction by preferring Criminal Revision Application No.332 of 2008 to the Sessions Court contending that on plain reading of the above order, it is obvious that the learned Special Metropolitan Magistrate had given a complete go-bye to the procedure prescribed by the Code of Criminal Procedure in Section 251 and 252. He made a grievance that the learned Magistrate did not explain the charge to the petitioner before recording his plea of guilt. The petitioner was also not informed that he can defend himself in the case and that he is not required to plead guilty with a view to avoid punishment. He further points out that the order does not record plea of the petitioner in his 4 own words as is mandatory in law. 4. The Revision Application was disposed off by the order dated 21st March 2009 which is impugned in the present proceedings along with the original order of conviction dated 26th September 2007. The learned Sessions Judge in the impugned order considered the grievance of the petitioner of noncompliance with the procedure laid down in Sections 251 and 252 The Code of Criminal Procedure. He also noted the tenor of grounds in the revision application which indicated that the petitioner proposed to deny having pleaded guilty before the trial Court. He also observed that the learned trial Judge not only did not follow the legal procedure but also did not apply his mind while dealing with the matter. Non application of mind was patent from the fact that conviction awarded by the trial Court nowhere showed imposition of fine, but the subsequent line in the rubber stamp shows imprisonment of 2 days, in default of fine. Since there was neither correct procedure adopted nor was there any application of mind by the trial Court while dealing with the matter, the learned Sessions Judge remanded the matter for retrial. 5. Mr.Jha submits that after recording the findings mentioned above, the learned Sessions Judge ought to have acquitted the petitioner instead of ordering retrial. Mr.Jha does not dispute the position in law that such an order can be 5 passed by the Sessions Court while exercising its revisional jurisdiction. He however, submits that the court ought not to have passed the order and instead ought to have acquitted the petitioner. 6. By way of instances where the Courts had passed order of acquittal in case of irregularity in the procedure adopted, Mr.Jha has relied upon following decisions : 1. State of Maharashtra vs. Sharad Keshav and Ors., reported in AIR 1967, Bombay 52 (Nagpur Bench) 2. Hansraj and Ors. vs. State, reported in AIR 1956, Allahabad 641 AND 3. Mukandi Lal vs. State through Municipal Board, reported in AIR 1952 Allahabad 212. Perusal of all judgments shows that in all the matters, there was some semblance of trial though there was irregularity in the procedure adopted for trial. In the instant case, there was no trial at all. And this is the case of the petitioner himself. He has contended that the charge was not explained to him. He was not made aware that there was no need for him to plead guilty. He was not asked whether he wants to defend the charge and his plea of guilt was not recorded verbatim as far as possible. Thus, the three decisions cited by Mr.Jha are differentiable on facts. In any case the decisions were 6 cited only by way of drawing comparison to the orders passed in similar circumstances. He has not relied upon the decision for any ratio laid down therein. In the considered opinion of this Court, the learned Sessions Judge has rightly directed retrial of the case. Drunken driving can no longer be said to be an offence so minor that the petitioner could be acquitted even without any procedure or trial at all. Hence, the Writ Petition is dismissed. (Smt.R.P.SondurBaldota,J)