S.Sundararaj v. State rep. by the Sub-Inspector of Police,D-9, Pattibaram Police Station,Ambattur, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.04.2011Coram:THE HONOURABLE Ms.JUSTICE K.B.K.VASUKICrl.R.C.No.1364 of 20071.S.Sundararaj2.S.Dhanalakshmi... Petitioners/ Accused -Vs-State rep. by the Sub-Inspector of Police,D-9, Pattibaram Police Station, Ambattur, Chennai. (Crime No.403/2007)(STC.No.1835/2007)... Respondent/ ComplainantPRAYER: Criminal revision is filed under Sections 397 & 401of Cr.P.C, against the order dated 14.03.2007 made in S.T.C.No.1835of 2007 passed by the Judicial Magistrate No.II, Thiruvallur, convicting the petitioners for an offence under Section 75 of the Madras City Police Act and sentencing them to pay fine of Rs.500/-each, in default to undergo simple imprisonment for two weeks. For petitioners : Mr.S.Sathia ChandiraFor respondent: M/s.S.Jagadeesh Chandrika Addl. Public ProsecutorORDER The accused are the revision petitioners herein. Therespondent herein on 13.03.2007 registered an FIR against the petitioners herein for the offence under Section 75 of Madras CityPolice Act, on the basis of the complaint given by one Santhi during the pendency of civil dispute in O.S.No.8 of 2007 between the first petitioner herein and Santhi and the FIR culminated in STC No.1835 of2007 on 14.03.2007, on which date the accused were furnished with the copies and questioned and found guilty on the basis of their admissions and were convicted and sentenced to pay fine of Rs.500/-each and in default to undergo simple imprisonment for two weeks and the fine amount was paid by the petitioners and the same is followed https://hcservices.ecourts.gov.in/hcservices/ by the representation dated 26.03.2007 made by the second petitioner to the Commissioner of Police, Egmore Chennai.

The petitioners have also simultaneously preferred the criminal revision against the order of conviction and sentence made against them in S.C.No.1835 of 2007. The petitioners have, in the representation made by the second petitioner to the Commissioner of Police and in the memorandum of grounds raised herein and in the affidavit filed before this Court, raised serious allegations as if they were not actually produced before the Court on 14.03.2007 and they were not furnished with copies of documents and they were not permitted to engage any counsel and they were not given sufficient opportunity to defend the case and the order of conviction is passed without following the due process of law as set out in the CriminalProcedure Code.

The learned counsel for the petitioners has also cited the authorities of Supreme Court, our High Court and the High Court of Karnataka reported in (1) AIR 1966 Supreme Court 22 (Mahant KaushalyaDas Vs. State of Madras), (2) 2001 Criminal Law Journal 2391 HighCourt of Madras (Ramasamy Vs. State) & (3) 1993(1) Crimes 590Karnataka High Court (State of Karnataka Vs. C.K.Devaraj) in support of the grievance raised by them against the procedure adopted before passing the order of conviction against the petitioners.

The appreciation of facts involved in all the three cases revealed that the order of conviction is made on the basis of plea of guilty under identical circumstances in the cases dealt with by the Apex Court, Karnataka High Court and our High Court.

In the case dealt with by the our High Court cited supra, the accused was produced before the Magistrate Court on 01.07.1997and he was, according to the petitioner therein, coerced and threatened and without knowing the consequences, he pleaded guilty and when the same was challenged as not in accordance with the procedure contemplated under Section 251 of Cr.P.C. and on the ground that he was not given sufficient time to acquaint himself as to what is the prosecution case and to understand the same and to take legal advice and to prepare himself either to claim a trial to defend himself or to take a decision to plead guilty, our High Court was pleased to set aside the sentence imposed upon him by negativing the contention raised on the side of the prosecution that the petitioner was furnished with the documents in the morning on 01.07.1997 and he was given time till the evening to take a decision and the said time given to him is reasonable and the order of the Magistrate is in accordance with the procedures contemplated under Section 251 Cr.P.C.Our High Court by relying upon the earlier judgment of our High Courtreported in 1989 Mad L.W. (Cri) 485 (Ramalingam Vs. State) observed that the time given in this case viz., one day cannot be said to be due compliance of Section 251 of Cr.P.C and the opportunity https://hcservices.ecourts.gov.in/hcservices/ contemplated in law should be a real opportunity in the eye of law and not merely a farce. It is further observed by our High Courtthat the learned Magistrate has erred in, after furnishing the document in the morning, taking up the matter to record the statement of the petitioner as to whether he pleads guilty on the same day andit cannot be considered as reasonable opportunity. Our High Courtis, by observing so, pleased to set aside the conviction and sentence imposed upon the petitioner as unsustainable.

In the case decided by the Division Bench of KarnatakaHigh Court cited supra, the accused was produced and the copies of documents on which the prosecution proposed to rely upon were furnished to him and the accusation was read over and he called uponto plead immediately and he admitted his guilty and the trial Courtacting on the same, convicted him on one and the same day and the same was challenged and the Division Bench has expressed similar view as expressed by our High Court. It is observed by the Division Benchof the Karnataka High Court that compliance with Section 207 ofCr.P.C. is not a drab formality and the accused must have enough time to acquaint himself with the facts of the case and to understand what is the charge against him and then to plead on such charge and the trial Court ought not to have proceeded to decide the case without giving him some time to go through the papers and if there is no reason to believe that adequate opportunity has not been given, after the copies of documents furnished, the very conviction becomes bad.

In the case decided by the Apex Court cited supra, the particulars of the offence were explained by the interpreter, who was the Bench Clerk, to the accused and the plea of guilty by the accused was also interpreted to the Court by the same Bench Clerk and thereafter he was convicted acting upon such conviction and the order of conviction was challenged by him on almost identical grounds as raised herein and report was called for from the concerned JudicialMagistrate regarding the allegations made therein and it was argued by the learned counsel for the accused/appellant that the Magistratehas not complied with the mandatory provisions of Section 243 Cr.P.C.and the appellant was deprived of the substance of a fair trial and the conviction of the appellant is legally invalid. The SupremeCourt accepted the contention so raised and having found that the plea of guilty made by the appellant was interpreted by the BenchClerk and the admission was not recorded as nearly as possible as contemplated under Section 243 of Cr.P.C., is pleased to hold the same is in violation of the mandatory procedure which rendered the trial vitiated and the order of conviction legally invalid.

In the present case, the accused admittedly pleaded guilty and convicted for the offence on the one and the same day ie., on14.03.2007. Though the case decided by our High Court stands on the better footing that the accused was given time till evening to plead guilty or to defend the case, the High Court found that the same does not amount to reasonable opportunity, as contemplated under law, whereas no such time at all is given to the petitioners in the instant case. Thus the serious allegations raised on the side of the learned counsel for the petitioners has full force of law and the entire proceedings is liable to be vitiated for violation of procedure laid down under Section 251 of Cr.P.C. and the order of conviction passed in the same is to be held totally bad in law and vitiated and is hence set aside. Following the Apex Court judgmentas referred to above, the matter is remanded back for fresh disposal in accordance with law.

In the result, the criminal revision petition is allowed by setting aside the order dated 14.03.2007 made in S.T.C.No.1835 of2007 on the file of the Judicial Magistrate Court No.II, Thiruvallur. The case is remanded back to the Judicial Magistrate Court No.II,Thiruvallur for being retried and brought to a conclusion in accordance with law within three months from the date of receipt of records. The fine amount, if any, shall refunded to the petitioners. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ gcgTo1.The Judicial Magistrate No.II, Thiruvallur.2.-Do-Thro The Chief Judicial Magistrate, Thiruvallur. 3. The Sub-Inspector of Police, D-9, Pattibaram Police Station, Ambattur, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.S.Sathia Chandira, Advocate, SR.24552 Order in Crl.R.C.No.1364 of 2007 JRG(CO)sra 28/04/2011