contained in the Cr.P.C more particularly in Chapter XXIA and in the
light of the backdrop of the constitutional guarantees, the provisions
contained in Sec.265G would even override any other provisions of the
Code, inconsistent with the former. Therefore, the complainant cannot
contend that the accused should necessarily prove miscarriage of justice
or should establish factually that he has suffered failure of justice or
miscarriage of justice over the judgment impugned of the trial court in
the plea bargaining process so long as the accused can plead and
establish that there has been flagrant violations of the mandatory
provisions contained in Chapter XXIA of the Cr.P.C. In the light of these
aspects, this Court has no hesitation to hold that the contentions raised
by the learned counsel for R-2 challenging the correctness of the view
taken by the learned single Judge of this Court in Joseph v. State of Kerala
reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported
in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in
2016 (1) KLT 117 are bereft of any merit and the said arguments of the
complainant are overruled. That apart, this Court would fully concur
with the views, reasonings and conclusions arrived at by the learned
Single Judge [B.Kemal Pasha (J)] in the aforecited judgments. This Court
in the decision in Joseph P.J v. State of Kerala & anr. reported in 2015 (5)
KHC 586 has held in para 6 as follows:
"6. Consequently, an offence under S.138 of the NI Act is not covered by
S.265E Clauses (a) to (c). This is not an offence wherein minimum sentence has been
prescribed. In such case, in the case of plea bargaining, the Court below ought to have
complied with the provisions of S.265E(d) CrPC, and the Court below ought to have
imposed one fourth of the sentence that can be imposed. The offence under S.138 of
the NI Act is punishable with imprisonment with a term which may extend to 2 years,
or with fine, which may extend to twice the amount of cheque. Even in the case of
fine, the Court below could have imposed only half the amount ordered as fine in the
present case. In the matter of sentence, the Court below ought to have considered the
substantive sentence of imprisonment as well as the fine which could be imposed. In
that case the Court below ought to have imposed substantive sentence of
imprisonment for six months also."
23. In view of the said position, this Court would opine that it
may not be appropriate for the trial court to take recourse to the plea
bargaining process under Chapter XXIA of the Cr.P.C in relation to the
complaints for offence punishable under Sec.138 of the N.I.Act.
24. The aforementioned provisions in Chapter XXIA of the
Cr.P.C are the procedures engrafted by the Parliament, which are to be
observed before the accused is found guilty and sentenced in such plea
bargaining process. If such mandatory procedures are violated, then it
will amount to denial of the procedural safeguards, which are inbuilt as
due process in Article 21 of the Constitution of India and the corollary
of such failure to observe those procedures would amount to
deprivation of the personal rights of an accused on account of his
conviction. Article 21 of the Constitution of India has guaranteed that
no person shall be deprived of his personal liberty except according to
the procedure established by law and case laws of the Supreme Court
are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1
SCC 248, wherein it has been held that the right to life and personal
liberty cannot be denied to anyone except, in accordance with the
procedure established by law, which is just, fair and reasonable. So
needless to say, any violation of such mandatory provisions in Chapter
XXIA of the Cr.P.C would amount to denial of constitutional right to life
and personal liberty of an accused.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE ALEXANDER THOMAS
OP(Crl.).No. 6 of 2016 (Q)
P.J.JOSEPH,
Vs
STATE OF KERALA,
Dated this the 6th day of July, 2017.
The petitioner herein is the accused for offence under Sec.138 of
the Negotiable Instruments Act, in C.C.No.101/2013 on the file of the
Judicial First Class Magistrate Court, Erattupetta, instituted on the basis
of a complaint filed by the 2nd respondent herein. The petitioner availed
the facility of plea bargaining as envisaged in Sec.265B of Chapter XXIA
of the Cr.P.C. Ext.P-2(1) is stated to be the statement of mutually
satisfactory disposition said to have been arrived at between the
petitioner-accused and R-2 complainant under Sec.265C of the Cr.P.C,
wherein the accused has stated that he is ready to plead guilty of the
above offence and pay the fine ordered by the court and further that the
complainant has no objection in accepting the plea of the accused if an
amount of Rs.4.5 lakhs (Rupees Four Lakhs and Fifty Thousand only) is
paid as compensation to the complainant under Sec.357 (1)(b) of the
Cr.P.C. The complainant had no objection in granting a period of 5
months to the accused for paying the fine/compensation amount.
Ext.P-2(4) is the application for plea bargaining filed by the petitioner
under Sec.265A of the Cr.P.C. and Ext.P-2(3) is the affidavit filed along
with the said application. Ext.P-2(2) is stated to be the report of the
mutually satisfactory disposition. Ext.P-3 is the order passed by the
learned Magistrate under Sec.265E regarding the disposal of the matter,
whereby the Magistrate has accepted the mutually satisfactory
disposition in his plea bargaining and had ordered that the petitioner is
found guilty of the offence under Sec.138 of the N.I.Act and that he is
sentenced to pay compensation of Rs.4.5 lakhs to the complainant
under Sec.357(3) of the Cr.P.C., and in default thereof he was sentenced
to undergo simple imprisonment for 6 months, etc.
2. It is the contention of the petitioner that the impugned
Ext.P-3 order/judgment passed by the trial court accepting the plea
bargaining is in flagrant violation of the mandatory provisions which
regulate the procedure for plea bargaining contained in Chapter XXI A
of the Cr.P.C. It is contended that the slightest deviation thereof would
result in the negation of fundamental rights of the accused and none of
the vital procedure prescribed to be followed before accepting the plea
bargaining has been complied with, except for the minimal formalities.
Further, most importantly, the trial court has not examined the
petitioner-accused in the absence of the complainant under in camera
as per the mandatory provisions contained in sub-sec.(4) of Sec.265B of
the Cr.P.C. It is also contended by the petitioner that the statutory report
of mutually satisfactory disposition of the case has not been prepared by
the trial court in accordance with the mandatory provisions contained
in Sec.265D of the Cr.P.C., etc. The petitioner essentially places reliance
on the judgments dated 8.10.2015 of this Court in Joseph v. State of
Kerala [W.P.(C).No.13803/2014] reported in 2015 (4) KLT 364, Joseph
P.J v. State of Kerala & anr. [O.P(Crl).No.41/2015] reported in 2015 (5)
KHC 586 and Bala Dandapani v. State of Kerala [O.P(Crl).No.253/2014]
reported in 2016 (1) KLT 117, wherein it has been held that the
provisions contained in Chapter XXIA of the Cr.P.C are mandatory
procedures contemplated thereunder and that in case of plea
bargaining, the accused should be examined in camera in the absence
of the complainant or defacto complainant and that where the trial
court disposes of a matter accepting plea bargaining without examining
the accused in camera in the absence of the complainant as mandated
in Sec.265B(4) of the Cr.P.C, then it will be a grave illegality which
would result in quashment of the order/judgment passed by the trial
court accepting the plea bargaining, etc.
3. The above O.P filed under Article 227 of the Constitution
of India was admitted by this Court on 11.1.2016 and this Court had
passed interim order dated 11.1.2016 ordering that the enforcement of
the impugned order passed by the trial court will stand suspended and
the said interim order has been extended from time to time.
4. Ext.P-1 is the complaint preferred by the 2nd respondent
arraying the petitioner as accused for the offence under Sec.138 of
the N.I. Act, which led to the institution of C.C.No.101/2013 on the
file of the Judicial First Class Magistrate Court, Erattupetta. The
allegation in the complaint is that the petitioner had borrowed a sum of
Rs.5 lakhs from the complainant on 14.12.2012 for purchasing
building materials and had promised to repay the amount borrowed on
23.12.2012, that in discharge of the said liability the petitioner had
issued cheque dated 23.12.2012 for Rs.5 lakhs drawn on the State Bank
of Travancore in favour of the complainant, which when presented
resulted in dishonour for insufficiency of funds. Statutory demand
notice dated 4.1.2013, intimating about the dishonour and calling upon
the accused to pay the cheque amount, was duly sent by registered post
to the petitioner, who had received the notice on 11.1.2013 and that no
amount was paid, etc. The petitioner would contend that the allegations
in Ext.P-1 complaint are incorrect and that the 2nd respondent is a
professional money lender and that the petitioner had borrowed Rs.3
lakhs from R-2 and repaid Rs.2.5 lakhs and the petitioner has assured to
repay the balance amount with interest without much delay and that
the dishonoured cheque in question has been misused by the
complainant and it had been given by the petitioner earlier to the
complainant as a blank signed cheque as security towards the
transaction, etc.
5. It has also been averred by the petitioner in para 4 of the
Original Petition that when he received summons on Ext.P-1 complaint,
he was afraid of the ordeal of criminal trial and he contacted the 2nd
respondent to get rid of the mental agony of being an accused and the
petitioner was constrained to yield to the demands of the 2nd respondent
to compromise the matter and that the 2nd respondent has directed the
petitioner to engage a counsel and the petitioner and the 2nd respondent
met the counsel, who instructed to avail the opportunity of plea
bargaining and that having found no other alternate remedy to escape
from the clutches of the 2nd respondent, the petitioner agreed to put his
signatures on the application for plea bargaining and that the 2nd
respondent had agreed to give 5 months' time to the petitioner to pay
Rs.4.5 lakhs and it is on this basis that the petitioner had proceeded
further with the filing of the plea bargaining application, etc. It is
further averred that Ext.P-2 mutually satisfactory disposition statement
was signed and filed by the parties on 12.11.2014 and without
conducting in camera proceedings of the accused in the absence of the
complainant as mandated under Sec.265B(4), the statement of the
mutually satisfactory disposition was drawn up by the parties and that
the trial court has not even drawn up the statutory report of such
mutually satisfactory disposition in violation of the mandatory
provisions in Sec.265D of the Cr.P.C. Further that the disposal of the
case in terms of Sec.265E of the Cr.P.C was made on the same day on
12.11.2014. After passing of Ext.P-3 order dated 12.11.2014, the
petitioner has tried his level best to raise the amount within the
stipulated time and due to extreme financial difficulties he could not
raise the amount and on consulting with his Advocate, he was advised
to file the present O.P to challenge the legality of the impugned Ext.P-3
order, etc.
6. Notice to R-2 has been issued by speed post and R-2 has
appeared through Sri.Sreelal N.Warrier, learned counsel. The 2nd
respondent has also filed a counter affidavit dated 27.2.2016 in the
matter, wherein it is contended that the plea bargaining application and
the mutually satisfactory disposition, etc., were fully voluntarily entered
into by the petitioner and that no prejudice has been caused to him and
that the petitioner has been acting dishonestly in manipulation of the
complaint and to deceive the complainant by such abuse of the process
of the court and that the petitioner is working as a Branch Manager of a
Government of Kerala Financial Institution (KSFE) and drawing a
monthly salary of more than Rs.1 lakh. That evidence of the
complainant was over in the trial by the examination and cross-
examination of the complainant as PW-1 and marking and proving of
documents as per Exts.P-1 to P-6. The case was then posted for
recording of the statement under Sec.313 of the Cr.P.C and the accused
was directed to appear before the trial court and that at that stage, the
accused has approached with the desire for plea bargaining and that
the application for plea bargaining as per Ext.P-2 dated 12.11.2014 has
been filed properly and that the Advocate appearing for the petitioner
before the trial court is an experienced Advocate, who has filed such
application even before in other cases and has secured such similar
orders and that a Civil Suit, O.S.No.723/2013 was filed by the complainant
herein before the Munsiff Court, Erattupetta, for recovery of the amount
due to the complainant from the petitioner herein in respect of the same
subject matter and the civil court had ordered for attachment of the
property even before judgment and when the accused had approached
the complainant the latter had agreed for plea bargaining process and
had even granted time for payment of compensation amount, which is
lower than the cheque amount and had also agreed to withdraw the
above said civil suit as a condition for plea bargaining. Thus the civil
suit was also withdrawn and the interim attachment was also thus
lifted, which was also informed to the other side and that the petitioner
had enjoyed all the benefits of settlement and had got more than 5
months to pay the compensation and even obtained an order for lifting
of the attachment, etc. That present attempt of the petitioner is
fraudulent and has been done only to deceive the 2nd respondent. That
due to the above process, the complainant was even constrained to
withdraw the civil suit, etc. The main contention raised by the 2nd
respondent is that no prejudice has been caused to the accused and that
there has been no miscarriage of justice in the instant case and the
petitioner has not satisfied this Court that the impugned order has
resulted in grave miscarriage of justice as contemplated in Sec.465 of
the Cr.P.C and that the Original Petition is liable to be dismissed, etc.
7. During the course of hearing, both sides have reiterated
their respective submissions. Sri.Shaju Purushothaman, learned counsel
appearing for the petitioner, has also placed reliance on the aforestated
judgments of this Court and had also pointed out the factual details for
raising his contentions regarding violation of Sec.265B(4) as well as
Sec.265D of the Cr.P.C. He had also contended that in view of the
specific provisions contained in Sec.265J in Chapter XXIA of the Cr.P.C,
the provisions contained in Chapter XXIA will have overriding effect
over other provisions of the Cr.P.C and if the provisions contained in
Chapter XXIA of the Cr.P.C are in any manner inconsistent with any of
the other provisions of the Code, then the former will prevail over the
latter and that therefore the contention of the 2nd respondent based on
Sec.465 in Chapter XXXV of the Cr.P.C is devoid of any merit. Further
that in view of the grave illegality and impropriety committed by the
trial court, the plea bargaining process itself would be in flagrant
violation of the fundamental rights guaranteed to the petitioner under
Article 20(3) as well as Article 21 of the Constitution of India. And that
such infringement of the constitutionally guaranteed fundamental
rights arising out of conviction of the petitioner would be depriving his
personal liberty without following the due process of law and would be
a serious deprivation of his fundamental rights. Therefore the
contention that no prejudice or violation of justice has been caused in
the instant case is bereft of any merit.
8. Sri.Sreelal Warrier, learned counsel appearing for R-2,
made his submissions based on the pleadings in the counter affidavit of
his party and had also strongly urged that the petitioner has not been
able to show any violation of justice in the instant case and that
therefore the test to be adopted by this Court in deciding whether or not
to set aside the impugned orders/judgments of the trial courts is as to
whether the impugned order has resulted in serious failure of justice as
enshrined in Sec.465 of the Cr.P.C and due to the absence of such
failure of justice, the petition is only to be dismissed. Further the
learned counsel appearing for R-2 would vehemently contend that the
aforestated judgments of the learned Single Judge of this Court relied on
by the petitioner do not lay down the correct position of law. The
findings made by the learned Single Judge in the judgment in Joseph P.J.
v. State of Kerala & anr. reported in 2015 (5) KHC 586, by placing
reliance on the judgment of the Apex Court in Girraj Prasad Meena v.
State of Rajasthan & ors. reported in (2014) 13 SCC 674 are misplaced
inasmuch as the facts of the case dealt with by the Apex Court in Girraj
Prasad Meena's case (supra) do not relate to one involving plea
bargaining under Chapter XXIA of the Cr.P.C but is in relation to the
acceptance of plea of guilt made by the accused in the course of a
regular trial, etc.
9. Heard Sri.Shaju Purushothaman, learned counsel appearing
for the petitioner, Sri.N.Sreelal Warrier, learned counsel appearing for
R-2 and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1
State.
10. It is the common ground that evidence in this case had
commenced and the chief examination of the complainant as PW-1 was
over and prosecution had also marked Exts.P-1 to P-6 documents and
that the case was posted for recording of the statement of the accused
under Sec.313, etc. The records would show that Ext.P-2(4) application
for plea bargaining was filed by the petitioner-accused under Sec.256A
of the Cr.P.C. Ext.P-2(4) application is dated 12.11.2011. In the
original of that document in the lower court records also appears the
same date. Obviously the date shown therein is a mistake. Ext.P-1
complaint has been filed only on 26.2.2013. Presumably it appears that
instead the correct date 12.11.2014, it has been wrongly shown there
as 12.11.2011. Ext.P-2(3) affidavit does not even contain any date.
Obviously these mistakes in Ext.P-2(4) application and Ext.P-2(3)
affidavit are due to omissions on the part of the Advocate for the
accused who appeared before the trial court as those case papers are that
of the petitioner. But certainly the trial court could have been little
careful while dealing with such crucial applications as the one for plea
bargaining under Chapter XXIA of the Cr.P.C., and it should have been
made sure that such mistakes are rectified as these records are very
crucial when the matters are contested later. Ext.P-2(1) appears to be a
statement of mutually satisfactory disposition arrived at between the
parties and signed by the complainant and accused on 12.11.2014 and
this appears to be filed purportedly under Sec.265C of the Cr.P.C.
Ext.P-2(2) is stated to be the report of the mutually satisfactory
disposition in terms of Sec.265D of the Act. It bears the signatures of
the complainant and the accused and also that of the presiding officer
of the trial court but strangely the date portion is completely left blank.
None of the parties have even shown the date even along with their
signatures. Ext.P-3 is the order passed by the trial court accepting plea
bargaining and finding the accused guilty and sentencing him to pay
the compensation of Rs.4.50 lakhs under Sec.357 (3) of the Cr.P.C.,
within 5 months and in default thereof to suffer simple imprisonment
for 6 months, etc. There is no substantive prison sentence of at least
imprisonment for a day till the rising of the court or sentence to pay
fine, which could have been ordered to be paid to the complainant as
compensation as per Sec.357(1)(b) of the Cr.P.C. In the absence of
either of such a sentence, it was illegal on the part of trial court to have
only "sentenced to pay compensation to the complainant along with a
default sentence clause of 6 months' simple imprisonment". After the
disposal of the case as per Sec.265D, the court has to deliver its
judgment in terms of Sec.265E in the open court as can be seen from a
bare reading of Sec.265F of the Cr.P.C. Therefore, after the disposal of
the case, what is to be delivered by the trial court is "judgment" and not
an order as styled in Ext.P-3. The lower court records do not disclose
that the trial court had examined the accused in in camera in the
absence of the complainant as envisaged under sub-sec.(4) of Sec.265B
of the Act in order to be fully satisfied that the accused had entered into
the plea bargaining process fully voluntarily. The petitioner has clearly
averred that such in camera proceedings have never been conducted
by the trial court to ascertain the voluntariness of the accused as
mandated in Sec.265B(4) of the Cr.P.C. The said factual averment has
not been seriously denied by the 2nd respondent. On a perusal of the
lower court records, it is seen that there are no documents or records
maintained by the trial court to evidence such holding of in camera
examination of the accused, without the presence of the complainant
and his counsel. Therefore, on facts, it is only to be held that the trial
court has not conducted such in camera examination of the accused in
the absence of the complainant in order to ascertain the voluntariness
of the accused as envisaged in Sec.265B(4) of the Cr.P.C. Moreover,
nowhere is it stated either in Ext.P-2(2) or in Ext.P-3 order by the trial
court that in camera examination of the accused in the absence of the
complainant was duly conducted in terms of Sec.265B(4) of the Cr.P.C.
11. This Court in the aforestated 3 judgments reported in
Joseph v. State of Kerala reported in 2015 (4) KLT 364, Joseph P.J v. State
of Kerala & anr. reported in 2015 (5) KHC 586 and Bala Dandapani v.
State of Kerala reported in 2016 (1) KLT 117 has also dealt with a
similar situation wherein the trial court had dealt with the plea
bargaining in complaints for offence under Sec.138 of the N.I.Act and
the trial court had not conducted any in camera examination of the
accused in the absence of the complainant to ascertain the voluntariness
of the accused in undergoing the plea bargaining process as envisaged
in Sec.265B(4) of the Cr.P.C. This Court held that the said provision in
Sec.265B has been inserted in the Cr.P.C to regulate the plea bargaining
so that there is no compulsion or insistence from the part of the
complainant or the defacto complainant as the case may be, on the
accused to force a settlement and it is in order to avoid the possibility of
any such compulsion or pressure tactics from the part of the
complainant or the defacto complainant as the case may be, the said
provision has been incorporated. In the said case also, the impugned
order passed by the trial court convicting and sentencing the accused
therein had not specifically stated as to whether in camera examination
of the accused was conducted therein. Accordingly, it was held in those
reported judgments that the provisions under Sec.265B(4) are
mandatory and breach of that provision by the trial court would be a
gross illegality which would warrant quashing of the impugned order,
etc. In those cases also, the trial court appears to have imposed only
compensation instead of awarding a fine. This Court has also held that
the procedure was also not correct. That in such cases, it is for the trial
court to impose a sentence of fine and then to direct the fine amount so
realised should be disbursed to the complainant as compensation as per
Sec.357(1)(b) of the Cr.P.C. It was also held by this Court that in view
of the provisions contained in Sec.265E(d) of the Cr.P.C if the offence
involved is the one, which is not covered either by clauses (b) or (c) of
the said section, then it is provided that the trial court may impose on
the accused one fourth of the sentence with imprisonment which may
extend to 2 years or with fine, as the case may be, for such offence and
that therefore the maximum sentence for offence under Sec.138 of the
N.I. Act would extend up to 2 years. The provision contained in
Sec.265E(d) conceives that the trial court should consider the
imposition of one fourth of the sentence provided or extendable as the
case may be and therefore this Court has held in the judgment in Joseph
P.J v. State of Kerala & anr. reported in 2015 (5) KHC 586 that as Sec.138
of the N.I.Act provides for punishment with imprisonment which may
extend up to 2 years or with fine, which may extend to twice the
amount of the cheque, etc., and that so the provision in Sec.265E(d)
conceives that the trial court should consider imposing atleast 1/4th of
such punishment of prison sentence provided or extendable, etc., and
that therefore the trial court should have considered the substantive
sentence of simple imprisonment for 6 months (1/4th of 2 years) and
could have imposed only one half of the cheque amount ordered as fine
in that case, etc. 12. Since elaborate submissions have been made by
the learned counsel appearing for R-2 complainant contesting the
correctness of the view taken by the learned Single Judge in the aforesaid
reported judgments, this Court is inclined to make an in-depth examination of
the matter. One of the crucial issues to be determined is as to whether
the provisions contained in Secs.265B and 265D in Chapter XXIA
of the Cr.P.C are mandatory and whether breach of such procedural
provisions would result in gross illegality warranting setting aside of the
impugned judgment of the trial court accepting the plea bargaining
process, etc. Since the facets of plea bargaining are intimately and
inextricably connected to golden right guaranteed to an accused to remain
silent as well as the right of an accused in a criminal case against self
incrimination as enshrined in Article 20(3) of the Constitution of India, it
would be appropriate to deal with some of the important aspects of the
said fundamental right guaranteed under Clause (3) of Article 20 of the
Constitution of India. Clause (3) of Article 20 in Part III of the Constitution
of India declares that no person accused of an offence shall be compelled
to be a witness against himself and this provision embodies the principle of
protection against compulsion of self-incrimination which is one of the
fundamental canons of Anglo-Saxon system of criminal jurisprudence and
which has been adopted by the U.S system and incorporated in the U.S
Federal Constitution. The 5th Amendment of the U.S Constitution provides
that no person shall be compelled in any case to be a witness against
himself. This has also been recognized in criminal administration of
justice in our country by incorporating various statutory provisions as in
Sec.342 of the Code of Criminal Procedure, 1898 [corresponding to
Sec.313 of the Code of Criminal Procedure, 1973], Secs.5 & 6 of the Indian
Oaths Act, 1969, Sec.161(2) of the Code of Criminal Procedure, 1973
[corresponding to Sec.161(2) of the Code of Criminal Procedure, 1898],
etc. But the Constitution of India raises the rule against self- incrimination
to the status of a constitutional prohibition engrafted under
fundamental rights contained in Part III thereof. The said
constitutionally guaranteed right in Article 20(3) has broadly 3
components, viz., (1) of a right pertaining to a person accused of an
offence, (2) protection against such personal compulsion to be a witness
and (3) protection to that person against such compulsion resulting in
his giving evidence against himself, etc. In the celebrated case in
Nandini Satpathy v. P.L.Dani & anr., reported in 1978 (2) SCC 424, the
Apex Court was called upon to consider the legal basis of the police
practice of interrogating suspects in view of the constitutional and legal
safeguard available to a person against self-incrimination. In the above
case, Smt.Nandini Satpathy, who was a former Chief Minister of Orissa,
was a suspect and was not an accused and was examined at the Police
Station in connection with investigation of the charges of corruption
against her and on her refusal to answer the questions put to her, she
was charged with an offence under Sec.179 of the IPC. It was
contended on her behalf that refusal to answer police interrogations
was justified on grounds of Article 20(3) of the Constitution of India
and Sec.161(2) of the Cr.P.C. Their Lordships of the Supreme Court,
speaking through Justice V.R.Krishna Iyer, have taken the categoric
view that the area covered by Article 20(3) of the Constitution of India
and Sec.161(2) of the Cr.P.C is substantially the same and that the
expression "any person supposed to be acquainted with the facts and
circumstances of the case" contained in Sec.161(2) of the Cr.P.C included
an accused person who fills that role because the police suppose him to
have committed the crime and must, therefore, be familiar with the
facts. In view of the facts thereof, the Apex Court proceeded to hold
that the expression "accused of an offence" occurring in Article 20(3) of
the Constitution of India, no doubt includes a person formally brought
into police diary as an accused person but it also includes a suspect.
Adverting to several of the earlier judgments of the Apex Court as in
Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, reported in AIR 1961 SC
29, State of Bombay v. Kathi Kalu Oghad, reported in AIR 1961 SC 1808,
Ramesh Chandra Mehta v. State of West Bengal, reported in AIR 1970 SC
940, etc., it was held in Nandini Satpathy 's case (supra) that the court
did not agree with the "restrictive view" of the expression "accused of an
offence" taken therein and extended the application of Article 20(3) to
police interrogations. In the yet another subsequent celebrated
judgment in Selvi & ors. v. State of Karnataka, reported in (2010) 7 SCC
263 = AIR 2010 SC 1974, the constitutional right under Article 20(3)
has taken further great strides and relying upon the international
developments and international Jurisprudence, the Apex Court held that
in voluntary administration of either narcoanalysis technique,
polygraph examination or the Brain Electrical Activation Profile (BEAP)
Test, etc., for the purpose of improving investigation efforts in criminal
cases would fall under Article 20(3) of the Constitution of India.
Rendering the said judgment on behalf of Three-Judge Bench, the
Honourable Chief Justice of India held that in the considered opinion of
their Lordships, the compulsory administration of the impugned
techniques violates the 'right against self-incrimination' and this is
because the underlying rationale of the said right is to ensure reliability
as well as voluntariness of statements that are admitted as evidence as
the court has recognised that the protective scope of Article 20(3)
extends to the investigative stage in criminal cases and when read with
Section 161(2) of the Code of Criminal Procedure, 1973 it protects
accused persons, suspects as well as witnesses who are examined
during an investigation. That the test results cannot be admitted in
evidence if they have been obtained through the use of compulsion and
that Article 20(3) protects an individual's choice between speaking and
remaining silent, irrespective as to whether the subsequent testimony
proves to be inculpatory or exculpatory and Article 20(3) aims to
prevent the forcible "conveyance of personal knowledge that is relevant to
the facts in issue" and the results obtained from each of the impugned
tests bear a "testimonial" character and they cannot be categorised as
material evidence. But it was also clarified in the judgment in Selvi's
case (supra) that Article 20(3) does not bar voluntary administered tests
and their results are admissible in evidence provided they have been
conducted strictly according to the guidelines laid down by the National
Human Rights Commission. After the 1950's and 1960's, the two land
mark judgments of the Apex Court on these aspects are those referred
in Nandini Satpathy v. P.L.Dani & anr., reported in 1978 (2) SCC 424
(supra) and Selvi & ors. v. State of Karnataka, reported in (2010) 7 SCC
263(supra).
13. The historical origins of the "right against self-incrimination"
has been dealt with succinctly in paras 92 to 101 of the SCC report in
the judgment in Selvi's case (supra). It has been observed that very
followers have identified the origins of this right in the medieval period
and that it was a response to the procedure followed by English Judicial
bodies such as the Star Chamber and the High Commissions which
required the defendants and suspects to take ex officio oaths. That
those bodies mainly decided cases involving religious non-conformism
in a protestant dominated society, as well as offences like treason and
sedition and under an ex officio oath, the defendant was required to
answer all questions posed by the Judges and prosecutors during the
trial and the failure to do so would attract punishments that often
involved physical torture. It was the resistance to this practice of
compelling the accused to speak which led to demands for a "right to
silence" for an accused. The use of the ex officio oath by the
ecclesiastical courts in medieval England had come under criticism
from time to time and the most prominent cause for discontentment
came with its use in the Star Chamber and the High Commissions. In
the sedition trial of John Lilburne, who was a vocal critic of the then
monarch in 1637, Lilburne had refused to answer questions put to him
on the ground that he had not been informed about the contents of the
written complaint against him, John Lilburne went on to vehemently
oppose the use of ex official oaths and the Parliament of the time
relented by abolishing the Star Chamber and the High Commission in
1641 and that event is regarded as the most important landmark in the
evolution of the "right to silence". Later in 1648, a Special Committee of
Parliament conducted an investigation into the loyalty of Members
whose opinions were offensive to the army leaders and the Committee's
inquisitional conduct and its requirement that witnesses take an oath to
tell the truth provoked opponents to condemn what they regarded as a
revival of the Star Chamber tactics. John Lilburne had once again
raised up the issue and he invoked the spirit of the Magna Carta as well
as 1628 petition of right to argue and contended that even after
common law indictment and without oath, he did not have to answer
questions against or concerning himself and he drew a connection
between the right against self-incrimination and the guarantee of a fair
trial by invoking the idea of "due process of law" which had been stated
in the Magna Carta. Speaking for the Bench in Nandini Satpathy's case
(supra) V.R.Krishna Iyer (J) has held as follows: (see SCC report p. 442
para 34).
"34. ..................... And Article 20(3) is a human article, a guarantee of dignity
and integrity and of inviolability of the person and refusal to convert an adversary
system into an inquisitorial scheme in the antagonistic ante-chamber of a police
station. And in the long run, that investigation is best which uses stratagems least, that
policeman deserves respect who gives his fists rest and his wits restlessness. The police
are part of us and must rise in people's esteem through firm and friendly, not foul and
sneaky strategy."
Further in Nandini's case (supra) reliance was also placed on the
judgment of the U.S Supreme Court in Brown v. Walker reported in 40
L.Ed 819 = 161 US 591 (1896), which was later relied on by the U.S
Supreme Court in Miranda v. Arizona [16 L.Ed 2d 694 = 384 US 436
(1965)] and in that regard, it will be pertinent to refer to para 31 of the
SCC report in Nandini's case (supra) p.p.438-439 para 31, which reads
as follows:
"31. ... `The maxim nemo tenetur seipsum accusare had its origin in a protest against
the inquisitorial and manifestly unjust methods of interrogating accused persons, which have
long obtained in the continental system, and, until the expulsion of the Stuarts from the British
throne in 1688, and the erection of additional barriers for the protection of the people against
the exercise of arbitrary power, were not uncommon even in England. While the admissions or
confessions of the prisoner, when voluntarily and freely made, have always ranked high in the
scale of incriminating evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which the questions put to him may
assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if
he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier State trials, notably in those of Sir Nicholas
Throckmorton, and Udal, the Puritan Minister, made the system so odious as to give rise to a
demand for its total abolition. The change in the English criminal procedure in that particular
seems to be founded upon no statute and no judicial opinion, but upon a general and silent
acquiescence of the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the inequities of the
ancient system impress themselves upon the minds of the American colonists that the States,
with one accord, made a denial of the right to question an accused person a part of their
fundamental law, so that a maxim, which in England was a mere rule of evidence, became
clothed in this country with the impregnability of a constitutional enactment.' ........"
The Apex Court has conclusively held in Selvi's case (supra) that the
right against "self-incrimination" is now viewed as an essential safeguard
in criminal procedure and its underlying rationale broadly corresponds
with two objectives.; firstly, that of ensuring reliability of the statements
made by an accused and secondly, ensuring that such statements are
made voluntarily. That it is quite possible that a person suspected or
accused of a crime may have been compelled to testify through methods
involving coercion, threats or inducements during the investigative
stage and when such a person is compelled to testify on his/her own
behalf, there is a higher likelihood of such testimony being false and
false testimony is undesirable since it impedes the integrity of the trial
and the subsequent verdict. That the purpose of the "rule against
involuntary confessions" is to ensure that the testimony considered during
the trial is reliable and the premise is that involuntary statements are
more likely to mislead the Judge and the prosecutor thereby resulting in
a miscarriage of justice, etc. Further that concerns about the
"voluntariness" of statements allow a more comprehensive account of
this right and if voluntary statements were readily given weightage
during trial, investigators would have a strong incentive to compel such
statements often through methods involving coercion, threats,
inducement or deception and even if such involuntary statements are
proved to be true, the law should not incentivise the use of interrogation
tactics that violate the dignity and bodily integrity of the person being
examined. In this sense, "the right against self-incrimination" is a vital
safeguard against torture and other "third-degree methods" that could be
used to elicit information and it serves as a check on police behaviour
during the course of investigation and the exclusion of compelled
testimony is important, otherwise the investigators will be more inclined
to extract information through such compulsion as a matter of course.
The frequent reliance on such "short cuts" will compromise the
diligence required for conducting meaningful investigations. During
the trial stage, the onus is on the prosecution to prove the charges
levelled against the defendant and the "right against self-incrimination" is
a vital protection to ensure that the prosecution discharges the said
onus. Lord Hailsham of St. Marylebone has observed in Wong Kam-
ming v. R reported in (1979) 1 AII ER 939 (PC) = 1980 AC 247 that any
civilised system of criminal jurisprudence must accord to the judiciary
some means of excluding confessions or admissions obtained by
improper methods and this is not only because of the potential
unreliability of such statements, but also, and perhaps mainly, because
in a civilised society it is vital that persons in custody or charged with
offences should not be subjected to ill treatment or improper pressure in
order to extract confessions and it is therefore of very great
importance that the courts should continue to insist that before
extra-judicial statements can be admitted in evidence the
prosecution must be made to prove beyond reasonable doubt that the
statement was not obtained in a manner which should be reprobated
and was therefore in the truest sense voluntary, etc. Explaining the
Fifth Amendment in the U.S Constitution, in Murphy v. Waterfront
Commission of New York Harbor, the U.S Supreme Court has observed as
follows in 378 US 52 (1963) p.55 = 12 L.Ed 2d 678 pp. 681-682.
"... It reflects many of our fundamental values and most noble aspirations: our
unwillingness to subject those suspected of crime to the cruel trilemma of self-
accusation, perjury or contempt; our preference for an accusatorial rather than an
inquisitorial system of criminal justice; our fear that self-incriminating statements will
be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a
fair State-individual balance by requiring the Government to leave the individual
alone until good cause is shown for disturbing him and by requiring the Government
in its contest with the individual to shoulder the entire load'; our respect for the
inviolability of the human personality and of the right of each individual `to a private
enclave where he may lead a private life'; our distrust of self-deprecatory statements;
and our realisation that the privilege, while sometimes `a shelter to the guilty', is often
`a protection to the innocent'."
Their Lordships of the Supreme Court in Nandini's case (supra) has
placed heavy reliance on the judgment of the U.S. Supreme Court in
Miranda v. Arizona reported in (1965) 384 US 436, pp. 706-07, which
reads as follows:
"...... the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way. As for the procedural safeguards to be
employed, unless other fully effective means are devised to inform accused persons of
their right of silence and to assure a continuous opportunity to exercise it, the
following measures are required. Prior to any questioning, the person must be warned
that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed. The defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates
in any manner and at any stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning. Likewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the police
may not question him. The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of the right to refrain
from answering any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned."
In the celebrated case of the U.S Supreme Court in Miranda's case
(supra), majority opinion (by Earl Warren, C.J) has laid down that
custodial statements chould not be used as evidence unless the police
officers had administered warnings about the right of the accused to
remain silent and the judgment has also recognised the right to consult
a lawyer prior to and during the course of custodial interrogations and
the underlying rationale for this view is that only if a person has
"knowingly and intelligently" waived of these rights after receiving a
warning that the statement made thereafter can be admitted as
evidence. These safeguards were designed by the U.S Supreme Court to
mitigate the disadvantages faced by suspect in a custodial environment
and emphasis was placed on the ability of the person being questioned
to fully comprehend and understand the content of the stipulated
warning. Majority opinion also explained the significance of having a
counsel present during a custodial interrogation. It would be relevant
to note the following paragraphs in the celebrated case in Miranda's
case (supra). [see report in 384 US 436 (1965) pp. 457-58].
"In these cases, we might not find the defendant's statements to have been
involuntary in traditional terms. Our concern for adequate safeguards to protect the
precious Fifth Amendment right is, of course, not lessened in the slightest. In each of
the cases, the defendant was thrust into an unfamiliar atmosphere and run through
menacing police interrogation procedures. ........ It is obvious that such an
interrogation environment is created for no purpose other than to subjugate the
individual to the will of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but it is equally destructive of
human dignity. (Professor Sutherland, Crime and Confession.) The current practice of
incommunicado interrogation is at odds with one of our Nation's most cherished
principles--that the individual may not be compelled to incriminate himself. Unless
adequate protective devices are employed to dispel the compulsion inherent in
custodial surroundings, no statement obtained from the defendant can truly be the
product of his free choice."
[see report in 384 US 436 (1965) pp. 469-70]
"The circumstances surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of his privilege by his
interrogators. Therefore, the right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege under the system we
delineate today. Our aim is to assure that the individual's right to choose between
silence and speech remains unfettered throughout the interrogation process. A once-
stated warning, delivered by those who will conduct the interrogation, cannot itself
suffice to that end among those who most require knowledge of their rights. A mere
warning given by the interrogators is not alone sufficient to accomplish that end.
Prosecutors themselves claim that the admonishment of the right to remain silent
without more `will benefit only the recidivist and the professional'. (Brief for the
National District Attorneys Association as amicus curiae, p. 14.) Even preliminary
advice given to the accused by his own attorney can be swiftly overcome by the secret
interrogation process. (Cited from Escobedo v. Illinois, US at p. 485....) Thus, the need
for counsel to protect the Fifth Amendment privilege comprehends not merely a right
to consult with counsel prior to questioning, but also to have counsel present during
any questioning if the defendant so desires."
The majority decision in Miranda's case (supra) was not a sudden
development in the US constitutional law and the scope of the privilege
against self-incrimination had been progressively expanded in several
prior decisions and the notable feature was the recognition of the
interrelationship between the Fifth Amendment and the Fourteenth
Amendment's guarantee that the Government must observe the "due
process of law" as well as the Fourth Amendment's protection against
"unreasonable search and seizure". Their Lordships of the Supreme Court
in para 119 in Selvi's case (supra), have observed that, while it is not
necessary for us to survey these decisions, it will suffice to say that after
Miranda's case (supra) administering a warning about a person's right
to silence during custodial interrogations as well as obtaining a
voluntary waiver of the prescribed rights has become a ubiquitous feature
in the US criminal justice system and in the absence of such a warning
and voluntary waiver, there is a presumption of compulsion with regard
to the custodial statements thereby rendering them inadmissible as
evidence, etc.
14. Suffice to say, it would be in the backdrop and context of
constitutional right guaranteed "right to silence" and "right against self-
incrimination" contained in Article 20(3) of the Constitution that the
present issues arising out of voluntariness and plea bargaining process
should be examined and analysed.
U.S Supreme Court judgments on voluntariness in plea
bargaining process.
The judgment of the U.S Federal Supreme Court in William J.
McCarthy v. United States, reported in 394 US 459 = 22 L Ed 2d 418 is
one of the important judgments on this point. In that case in a
prosecution for tax evasion in the U.S District Court, the court accepted
the defendant's guilty plea after the defendant's counsel stated that he
had advised the defendant of the consequences of his plea, and after the
defendant, in response to the court's questions expressed his desire to
plead guilty, acknowledged his understanding of the consequences of
such plea as explained by the court with regard to the waiver of a jury
trial and the punishment involved, and stated that his plea had not been
induced by any threats or promises. After such conviction, the
defendant appealed to the U.S Court of Appeals, wherein he has
contended that his guilty plea should have been set aside because of the
trial court's failure to comply with Rule 11 of the Federal Rules of
Criminal Procedure, which provides that the court shall not accept a
guilty plea without first addressing the defendant personally and
determining that the plea was made voluntarily with an understanding
of the nature of the charge and the consequences of the plea. The Court
of appeals affirmed the conviction holding that the District Court
judgment had complied with the said rule. Aggrieved thereby the
defendant had sought for a Writ of Certiorari before the US Supreme
Court and the US Supreme Court reversed the impugned judgment and
remanded the matter. In the leading opinion speaking on behalf of 8
members of the Court, Chief Justice Warren, has held that firstly, under
Rule 11, the trial court has an obligation to personally inquire whether
the defendant understood the nature of the charge against him, the Rule
being designed to assist the district judge in making the constitutionally
required determination that the guilty plea was truly voluntary, and to
produce a complete record at the time of the plea of the factors relevant
to such voluntariness determination. Secondly, any noncompliance
with the Rule constituted reversible error, entitling the defendant to
plead anew and thirdly the decision was made pursuant to the U.S
Supreme Court's supervisory power over the lower federal courts. It
has been categorically held therein that the defendant who enters guilty
plea simultaneously waives several constitutional rights, including his
privilege against compulsory self-incrimination, his right to trial by
jury, and his right to confront his accusers. For this waiver to be valid
under the due process clause it must be an intentional relinquishment
or abandonment of a known right or privilege. Rule 11 of Federal Rules
of Criminal Procedure, which governed the field, stipulated that the
court shall not accept a guilty plea without first addressing the
defendant personally and determining that the plea is made voluntarily
with an understanding of the nature of the charge and consequences of
the plea and that judgment shall not be entered upon a guilty plea
unless the court is satisfied that there is a factual basis for the plea, and
if this is not complied with by the District Court in a federal criminal
prosecution then the defendant is entitled to plead anew , where the
trial court did not inquire of the defendant personally whether he
understood the nature and essential elements of the charge against him,
notwithstanding that the defendant's attorney stated hat he had advised
the defendant of the consequences of his plea, or that the defendant, in
response to the court's questions, expressed his desire to plead guilty,
acknowledged his understanding of the consequences of such plea as
explained by the court with regard to the waiver of a jury trial and the
punishment involved, and stated that his plea had not been induced by
any threats or promises. Majority opinion of the 8 judges of the U.S
Supreme Court held therein that the Court would agree with the
petitioner that the District Judge did not comply with Rule 11 in the
facts of that case and in reversing the court of appeals it was held that
the defendant is entitled to plead anew, if the District Court accepted his
guilty plea without fully adhering to the procedure provided for in Rule
11. During the early arguments in that case the counsel for the
Government had repeatedly conceded that the Judge did not personally
inquire whether the petitioner understood the nature of the charge and
that the subject on which the District Judge did not directly address the
defendant, which is raised, is on the question of defendant's
understanding of the charges. Nevertheless, the Government argued
that since the petitioner has stated his desire to plead guilty, the District
Court "could properly assume that the petitioner was entering that plea with
a complete understanding of the charge against him". This contention of the
prosecution was overruled as untenable by the U.S Supreme Court by
holding that such argument cannot be accepted, which completely
ignores the two purposes of Rule 11 and the reasons for its recent
amendment. First of which is that although the procedure embodied in
Rule 11 has not been held to be constitutionally mandated, it is designed
to assist the District Judge in making the constitutionally required
determination that a defendant's guilty plea is truly voluntary. Secondly
the Rule is intended to produce a complete record at the time the plea is
entered of the factors relevant to this voluntariness determination.
Thus the more meticulously the Rule is adhered to, the more it tends to
discourage, or at least to enable more expeditious disposition of, the
numerous and often frivolous post-conviction attacks on the
constitutional validity of guilty pleas. It was further held therein that by
personally interrogating the defendant, not only will the judge be better
able to ascertain the plea's voluntariness, but he also will develop a
more complete record to support his determination in a subsequent post
conviction attack. These two purposes were held to have their genesis
in the very nature of guilty plea, in the context of the constitutional
right of the defendant accused of a criminal offence to remain silent. It
was also held therein that a defendant who enters guilty plea
simultaneously waives several constitutional rights, including his
privilege against compulsory self-incrimination, his right to trial by
jury, and his right to confront his accusers. For this waiver to be valid
under the due process clause it must be an intentional relinquishment
or abandonment of a known right or privilege. Consequently it was
also held that if a defendant's plea is not voluntary and it has been
obtained in violation of the due process and is therefore void and
moreover a guilty plea is an admission of all the elements of a formal criminal
charge, it cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts. It was also clearly held that
voluntariness must be self evident from the records and if voluntariness
cannot be determined from the records, the case is remanded for an
evidentiary hearing on that issue. U.S Supreme Court observed that Rule 11 is
designed to eliminate any need to resort to a later fact-finding
proceedings in this highly subjective area and the Rule contemplates
that disputes as to the understanding of the defendant and the
voluntariness of his action are to be eliminated at the outset. When the
ascertainment is subsequently made, greater uncertainty is bound to
exist since in the resolution of disputed contentions of credibility and of
reliability of memory cannot be avoided and there is no adequate
substitute for demonstration in the record at the time the plea is entered
the defendant's understanding of the nature of the charge against him.
It was further held that prejudice inheres in a failure to comply with
Rule 11, for noncompliance deprives the defendant of the Rule's
procedural safeguards that are designed to facilitate a more accurate
determination of the voluntariness of his plea. That a defendant, whose
plea has been accepted in violation of Rule 11 should be afforded
opportunity to plead anew not only will insure that every accused is
afforded those procedural safeguards, but also will help to reduce the
great waste of judicial resources required to process the frivolous
attacks on guilty plea convictions that are encouraged, and are more
difficult to dispose of, when the original record is inadequate. It was
further held that it is therefore, not too much to require that, before
sentencing defendants to years of imprisonment, District Judges take the
few minutes necessary to inform them of their rights and to determine
whether they understand the action they are taking, etc.
15. The case in Edward Boykin v. State of Alabama, reported 395
U.S 238 = 23 L Ed 2d 274, dealt with a defendant, who after pleading
guilty, was convicted of common law robbery in the Circuit Court of
Mobile Country, Alabama, and after trial by jury to determine the
punishment, was sentenced to die and on automatic appeal, the
Supreme Court affirmed and unanimously rejected the defendant's
argument that a sentence of death for common-law robbery was cruel
and unusual punishment within the meaning of the Federal
Constitution, but four of the seven Judges on their own motion
discussed the constitutionality of the process by which the trial judge
has accepted the defendant's guilty plea, and three of these four Judges
dissented from the affirmance on the ground that the record was
inadequate to show that the defendant had intelligently and knowingly
pleaded guilty. Thereupon the defendant approached the U.S Supreme
Court through an application on Certiorari, which resulted in the
reversal of the impugned judgment. But unanimous view of the court
was that the federal constitutional question of the voluntary character
of the defendant's guilty plea was properly before the U.S Supreme
Court notwithstanding the defendant failed to raise the question below
and the state court failed to pass upon it, and that there was reversible
error under the due process clause of the Fourteenth Amendment where
the record did not disclose that the defendant voluntarily and
understandingly entered such plea. Leading opinion was rendered by
Justice Douglas. However, Justice Harlan, joined by Justice Black
dissented inter alia on the ground that objections were sought to be
raised at the behest of the defendant who had never alleged that the
guilty plea was involuntary or made without the knowledge of the
consequences, etc. The majority opinion held that the plea of guilty is
more than a confession which admits that the accused did various acts,
it is itself a conviction, and nothing remains but to give judgment and
determine punishment. It was also held that the trial court erred in
accepting the guilty plea without an affirmative showing that it was
intelligent and voluntary and was thus a plain error on the face of the
record. It was also held that the problem of waiver of the right to
counsel, a Sixth Amendment right, and presuming waiver from a silent
record is impermissible. The records must show or there must be an
allegation and evidence, which show, that an accused was offered
counsel but intelligently and understandingly rejected the offer. That
the question of effective waiver of a federal constitutional right in a
proceedings is of course governed by federal standards. It was also
reiterated that the defendant who enters guilty plea simultaneously
waives several constitutional rights, including his privilege against
compulsory self-incrimination, his right to trial by jury, and his right to
confront his accusers. For this waiver to be valid under the due process
clause it must be an intentional relinquishment or abandonment of a
known right or privilege. If a defendant's plea is not voluntary and it
has been obtained in violation of the due process and is therefore void.
Moreover a guilty plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the defendant
possesses an understanding of the law in relation to the facts. What is
at stake for an accused facing death or imprisonment as a result of a
plea of guilty demands the atmost solicitude of which the courts are
capable in canvassing the matter with the accused to make sure he has
a full understanding of what the plea connotes and of its consequences .
So far as the records shows, the judge asked no questions of petitioner
concerning his plea and the petitioner did not address the court.
Presuming waiver from a silent record is impermissible and a plea of
guilty is more than an admission of conduct; it is a conviction. Several
federal constitutional rights are involved in a waiver that takes place
when a plea of guilty is entered in a state criminal trial and first is the
privilege against compulsory self-incrimination guaranteed by the Fifth
Amendment and second is the right to trial by jury and the third is the
right to confront one's accusers and it cannot be presumed that waiver
of these three important federal rights from a silent record.
16. Sri.Sreelal N.Warrier, learned counsel appearing for the 2nd
respondent-complainant had urged that the reasons made by the
learned Single Judge in Joseph P.J. v. State of Kerala, reported in 2015 (5)
KHC 586, by placing reliance on the judgment of the Apex Court in
Girraj Prasad Meena v. State of Rajasthan reported in (2014) 13 SCC 674
= 2013 KHC 478, are untenable inasmuch as the facts of the case dealt
with by the Apex Court in Girraj Prasad's case (supra) do not relate to
the one involving plea bargaining as envisaged in Chapter XXIA of the
Cr.P.C but it is in relation to acceptance of plea of guilt made by the
accused in the course of a regular trial, etc. A reading of para 5 of
Girraj Prasad's case (supra) would show that in that case, after
commencement of the trial, the court had ordered the presence of
witnesses for recording of statements on which day summons were
issued to 3 other witnesses including the appellant therein
victim/defacto complainant for recording of their evidence on 7.7.2011
but on that day so fixed, the trial could not proceed and thereafter on
15.7.2011 both the respondent-accused appeared before the learned
trial court and filed an application pleading guilty for the offences
under Secs.323 and 343 of the IPC and the trial court entertained the
application forthwith and the trial court concluded the trial on that day
itself, without issuing notice to the appellant/victim and convicting the
respondents only imposing a fine of Rs 500/-, and further granting
them the benefit of provisions of Secs. 3 and 12 of the Probation of
Offenders Act, 1958. The learned Magistrate further held that the
order passed in the criminal case therein shall not have any adverse
effect on the government service of the accused persons. The Apex
Court has clearly held in para 20 of the ruling in Girraj Prasad Meena v.
State of Rajasthan , reported in (2014) 13 SCC 674, as follows:
"20. The High Court rejected the application under Section 482 CrPC filed by
the appellant only on the ground that the appellant neither challenged the order of
taking cognizance nor raised any objection at the time of reading over of the charges
to the accused. The High Court failed to appreciate that before the statement of the
appellant or any other witness could be recorded, the trial court disposed of the matter
on the date when the application itself had been submitted admitting the guilt. Even
otherwise if the trial court wanted to entertain any issue of plea bargaining under
Chapter 21-A, inserted w.e.f. 5-7-2006, then too the court was obliged thereunder to
put the victim to notice before extending any such benefits that have been given in the
present case. The procedure therefore appears to have been clearly violated. Therefore,
in the facts and circumstances of the case, the appellant had no opportunity to raise
any grievance before the appropriate forum."
On this basis the Apex Court set aside the impugned order of the trial
court and had remanded the matter to the trial court for disposal afresh.
From a reading of para 5 of the SCC report in Giriraj's case (supra), it
may appear that the plea of guilty subsequently made by the accused
may not be under Chapter XXIA of the Cr.P.C. Irrespective to that, their
Lordships of the Supreme Court have clearly held that even otherwise if
the trial court wanted to entertain any issue of plea bargaining under
Chapter XXIA, then too the court was obliged thereunder to put the
victim to notice before extending any such benefits that have been given
in the present case and the procedure therefor appears to have been
clearly violated. Therefore it has been clearly held that even if the
accused wanted to avail the benefit of plea bargaining as envisaged in
Chapter XXIA of the Cr.P.C, still it would have been mandatory even to
put the victim/defacto complainant to notice. It is clearly stated in the
facts of that case that final report/charge sheet was filed in that case by
the police investigation agency. Thereafter, it has been clearly held
therein that even in police charge sheeted case, for entertaining the plea
bargaining process, participation of not only the accused, the State
Prosecutor representing the police authorities alone may not suffice in a
case where there is victim and that notice even to the victim is
mandatory before the trial court can entertain the plea bargaining
under Chapter XXIA of the Cr.P.C. Therefore, it clearly flows therefrom
that their Lordships of the Supreme Court have clearly held in Girraj
Prasad's case (supra) that the provisions in Chapter XXIA are indeed
mandatory and failure to comply with such mandatory procedure
would vitiate the acceptance of plea bargaining by the trial court, etc.
So the argument made by the learned counsel appearing for R-2
complainant on this aspect is untenable and is thus overruled.
17. Decision of this Court in Abdul Jaleel v. Station House Officer,
Kozhikode & anr. reported in 2014 (2) KLD 161, is on the legality of
acceptance of guilty plea under Sec.252 of the Cr.P.C. Therein the
Magistrate had convicted the accused on the premise that he had
pleaded guilty and the accused said that he had not pleaded guilty and
relying on that plea of guilt, entered the conviction and as such, there is
no illegality committed by the court below and mere irregularity will
not vitiate the conviction. This Court held that since there was nothing
on record to show that the plea of the accused was recorded by the
learned Magistrate before accepting the same and entering the
conviction on the basis of such plea, it would vitiate the conviction.
That when a procedure is directed to be adopted by the Magistrate, and
if the Magistrate does not follow that, the conviction rendered by the
Magistrate without following the procedure would be vitiated. It was
also held therein that since there was nothing on record to show that
the plea was recorded under Sec.252 of the Cr.P.C r/w Secs.262 & 263
(g) of the Cr.P.C and the plea was voluntarily made, then conviction
entered by the court below on the basis of such guilty plea would be
vitiated and is liable to be set aside. In the case in Brijlal Amarbanshi &
ors. v. State of Maharashtra reported in 2009 Crl.L.J. 87, the Bombay
High Court dealt with a case where the accused was pleaded not guilty
at the time of framing of charges and consequently they had written
letter to the trial court stating that they are pleaded guilty and that
considering their poverty and difficulties faced by them and the family
responsibility, justice be given to them with compassion and they pray
to plead guilt and it may be accepted and judgment may be
pronounced, etc. However, the trial court has informed the accused
that if they insist on pleading guilty, they would suffer sentence
according to law and even they would not be able to prefer appeal. But
the accused persisted on their stand and learned Special Judge
proceeded to act upon and has pronounced impugned judgment and
convicted and sentenced them. The Bombay High Court held in para 11
thereof as follows:
" 11. Ordinarily in serious offence, plead guilty is to be avoided and it is
desirable to direct that the case should be tried. Even if plea guilt is recorded which
would be done, by distinctly putting to the accused each fact alleged in charge, if
proved, would constitute an offence. Yet even on observing these safeguards, the Court
would not be relieved from its duty of being satisfied that the plead guilty was made by
the accused upon fully understandingly the repercussions and with free will, and is
genuine and not due to misunderstanding and it would be to have the accused being
tried. It is also to be ensured that the accused are duly represented through Advocate.
The view expressed above is well supported by various judgments apart from one
relied upon by the appellants and in particular following judgments : -
1. AIR 1947 Bombay 345, Abdul Kader Allarakhia v. Emperor
2. AIR 1966 SC 22, Mahant Kaushalyadas v. State of Madras.
3. 1973 CriLJ 358, S. Chinnaswamy v. The State.
4. 1999 CriLJ 2857, Anand Vithoba Lohakare and Others v. State of Maharashtra.
It would not be necessary to discuss each judgments quoted supra and
including the judgments cited by the learned Advocate for the appellants, and one by
the prosecution."
It was stated that going by the nature of charges framed by the court,
the plea of guilt put forward by the accused is not in the form of
admission of each fact and act which constitutes the ingredients of
offence of charge and that the plea of guilt cannot be taken as an
admission of the facts simplicitor which in law constitutes the offence
and that the accused were deprived of the legal assistance in that case
and that the accused thus entitled to successfully urge that their plea of
guilt is definitely not rendered in accordance with law and that they are
entitled to fair trial and on this basis impugned sentence and conviction
was set aside and the matter was remitted to the trial court.
18. In the case in Thippaswamy v. State of Karnataka, reported in
(1983) 1 SCC 194, the accused had pleaded guilty and thereupon the
trial Magistrate has imposed a fine of Rs.1,000/- even though the
offence for which he was convicted was Sec.304A of the IPC. The High
Court in appeal by the State accepted the plea of guilt and additionally
imposed rigorous imprisonment for one year. The facts in that case
dealt with in the judgment dated 25.11.1982 of the Supreme Court did
not obviously involve applicability of Chapter XXIA of the Cr.P.C for
plea bargaining, which came into force only with effect from 5.7.2006.
But it is observed therein that the accused had obviously sought plea
bargaining and from the facts of that case the accused thought that they
could get a better bargain by pleading guilty for a lighter sentence or
mere fine for the offence under Sec.304 of the IPC. The Supreme Court
has clearly held that it would clearly be violative of Article 21 of the
Constitution of India to induce or lead an accused to plead guilty under
a promise or assurance that he would be let off lightly and then in
appeal or revision, to enhance the sentence and that it would not be
reasonable, fair and just to act on the plea of guilty for the purpose of
enhancing the sentence. It was held that in such cases where there is
an appeal seeking enhancement of the sentence, the appellate
court/revisional court should set aside the very conviction and sentence
of the accused and remit the case to the trial court for fresh disposal so
that the accused can, if he wishes to, defend himself against charge
instead of having to place reliance on his plea of guilt for the purpose of
enhancing the sentence in appeal or revision.
19. In the illuminating judgment of a learned Single Judge of
this Court, Subramanian Potti (J) as his Lordship then was, in State v.
Gopinatha Pillai, reported in 1978 KLT 779, it has been held that plea
of guilt envisaged in Sec.252 of the Cr.P.C, provides that if the accused
pleads guilty, the Magistrate shall record his plea as merely as possible
in the words used by the accused and may in his discretion convict him
thereon. That conviction of an accused on the basis of pleading guilty is
not automatic and does not follow merely because such plea is made.
The court has to judicially consider whether conviction would be
warranted and that is where there is a scope for exercise of the
discretion of the Magistrate. It was also inter alia held therein that it is
only when there is genuine plea of guilty made freely and voluntarily
that the bar under Sec.375 of the Cr.P.C would apply, which stipulates
that no appeal can be filed where an accused has been pleaded guilty and has been convicted except as to the extent for
legality of the
sentence, etc. That there may be instances where facts averred or
pleaded by the prosecution did not amount to an offence and pleading
by the accused that he is guilty does not preclude him from filing an
appeal against the conviction, etc. It will be pertinent to refer to paras 5
& 6 of the judgment of this Court in State v. Gopinatha Pillai , reported in
1978 KLT 779, which read as follows:
"5 S.251 of the Code provides that when, in a summons case, the accused
appears or is brought before the Magistrate, the particulars of the offence of which be
is accused shall be stated to him, and he shall be asked whether be pleads guilty or has
any defence to make, but it shall not be necessary to frame a formal charge. It is agreed
by both sides that it is S.251 that is applicable to the facts of the case here. S.252
provides that if the accused pleads guilty, the Magistrate shall record the plea as nearly
as possible in the words used by the accused and may, in his discretion, convict him
thereon. Evidently the conviction of an accused on a plea of guilty is not automatic and
does not follow merely because such plea is made. Despite the plea the court has to
judicially consider whether the conviction would be warranted and that is where there
is scope for exercise of the discretion of the Magistrate. Various factors may have
bearing on whether, despite the plea by the accused that he is guilty, he has to be
convicted or whether the case has to be tried and disposed of on the evidence that may
be taken at the trial. The duty cast upon a court to decide whether the plea by the
accused that he is guilty should be the sole basis for conviction is a solemn duty, the
exercise of which calls for due care and caution. If the Magistrate has reason to feel
that the plea entered by the accused is not voluntary he has to probe further into the
matter and he is to act upon such plea only if he is fully convinced that the accused
pleaded guilty of his own free will. Equally relevant is the case where a court has
reason to feel that the accused may not have understood the charge fully, the facts as
well as the inference drawn from the facts stated in the charge. It is possible that the
accused may not be properly advised because of the situation in which he is placed.
May be he entered plea of guilty assuming that the consequences may not be serious. In
short, except in a case where the court feels that the plea of guilty made by the accused
was made under circumstances where be was well advised as to what he was pleading
and was well aware of the consequences of his plea, the court may not be justified in
acting upon such plea and convicting the accused without may evidence.
6 It is only when there is a genuine plea of guilty made freely and voluntarily
that the bar under S.375 of the Code would apply. There may be instances where the
facts averred or pleaded by the prosecution do not amount to an offence. Pleading by
the accused that he is guilty does not preclude him from filing an appeal against the
conviction. That is because his plea may amount only to the admission of facts averred
by the prosecution which, even if true, may not be sufficient to constitute an offence.
Reference may be made in this context to the decision of the High Court of Madras in
In re. U. R. Ramaswami, AIR 1954 Mad. 1020. In that case the accused represented
himself to be a merchant dealing in broken glass pieces and obtained an advance of Rs.
300/-from the complainant in two instalments agreeing to supply certain quantity of
glass pieces to him within a fixed period. The glass pieces were not supplied within the
stipulated period and when be was pressed by the complainant the accused gave a
cheque to the complainant which was dishonoured the there was no balance to the
credit of the accused at that time. On these facts a charge under S.409 of the IPC. was
framed and the accused pleaded guilty to that charge. The Magistrate found that there
was no intention on the part of the accused to cheat or defraud at the outset and that it
was apparently due to circumstances beyond his control that the accused could not act
according to the terms of the contract. The Magistrate also found that the issue of
cheque was not an act of fraud but really was proof of good faith. But nevertheless the
Magistrate was of the view that an offence under S.409 was made out because the
accused did not use the money for the purpose for which it was intended, namely, to be
used by him in his capacity as merchant and so accepting the plea of guilty, the
Magistrate convicted the accused. The appellate court held that the plea of guilty did
not bar the appeal from being entertained. That was because if the question be one of
admission of all the tacts and the tacts pleaded are not disputed, even then the accused
would not be guilty. When a person advances money for purchase it is not an
entrustment for a specific purpose. The money so advanced becomes the money of the
person to whom it was so advanced, and be is free to utilise it otherwise than for his
business. The view to the contrary taken by the learned Magistrate was found to be
unsustainable. Plea of guilty did not preclude a challenge to the inference drawn."
20. Therefore, adjudication of the present issues in this case,
from the backdrop of the constitutional guaranteed right to remain
silent as adumbrated in Article 20(3) of the Constitution of India as well
as in the light of the legal principles discernible from the aforesaid
judgments, the procedure contemplated in Chapter XXI of the Cr.P.C, as
in Secs.265B(4), 265D, etc., is mandatory and failure to meticulously
and strictly follow such provisions by the trial court would render it
illegal, ultra vires and void. When an accused pleads guilty, it amounts
to waiver of his liberty, constitutional rights, right to remain silent/right
against self discrimination/right of effective defence and to meet the
charges of his accusers, etc. When a post-conviction challenge is made
against plea bargaining process, the same can be adjudged only if there
is a proper and effective record of the proceedings to show that plea of
guilt was indeed made by the accused voluntarily, knowingly and
intelligently and knowing fully about the consequences thereof. The
trial court is under a bounden judicial obligation to ascertain and
ensure that the accused has made the plea of guilt voluntarily,
intelligently and fully knowing about its consequences. It is for this
purpose that in camera examination of the accused by the trial court
without the presence of the complainant has been mandated in
Sec.265B(4). After rendering of the statement by the parties in
accordance with the guidelines for mutually satisfactory disposition as
per Sec.265(c), the trial court is still further under a judicial obligation
to render a statutory report regarding the mutually satisfactory disposition as
envisaged in Sec.265D. However, Sec.265J contained in Chapter XXIA further
mandates that provisions in that Chapter shall have effect
notwithstanding anything inconsistent therewith contained in any other
provisions of the Cr.P.C and nothing in such other provisions shall be
construed to constrain the meaning of any provision in Chapter XXIA.
Sec.265J reads as follows:
"Sec.265J: Savings.- The provisions of this Chapter shall have effect notwithstanding
anything inconsistent therewith contained in any other provisions of this Code and
nothing in such other provisions shall be construed to constrain the meaning of any
provision of this Chapter.
Explanation.- For the purposes of this Chapter, the expression "Public Prosecutor" has
the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public
Prosecutor appointed under section 25."
Secs.465 of the Cr.P.C in Chapter XXXV deals with irregular
proceedings. Sec.465 reads as follows:
Sec.465: Finding or sentence when reversible by reason of error, omission or
irregularly.- (1) Subject to the provisions hereinbefore contained, no finding, sentence
or order passed by a Court of competent jurisdiction shall be reversed or altered by a
Court of appeal, confirmation, or revision on account of any error, omission or
irregularity in the complaint, summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any inquiry or other proceedings under
this Code, or any error, or irregularity in any sanction for the prosecution, unless in
the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any
proceeding under this Code, or any error, or irregularity in any sanction for the
prosecution has occasioned a failure of justice, the Court shall have regard to the fact
whether the objection could and should have been raised at an earlier stage in
proceedings.
In any post-conviction challenge against the plea bargaining process,
the heart and soul of the matter is as to whether the accused had
voluntarily knowingly and intelligently made the plea. Therefore, these
provisions in Chapter XXIA of the Cr.P.C are indeed mandatory.
21. Going by the provisions in Chapter XXIA of the Cr.P.C and
evaluating those provisions in the light of the aforementioned
constitutional guaranteed rights, this Court has no hesitation to hold
that failure to comply with the mandatory provisions in Chapter XXIA
would thus result in prejudice and failure of justice to the accused. This
view is all the more justified in the light of the provisions contained in
Sec.265J of the Cr.P.C Sec.265G in Chapter XXIA of the Cr.P.C dealing
with the judgment in plea bargaining process, reads as follows:
Sec.265G: Finality of the judgment.- The judgment delivered by the Court under section
265G shall be final and no appeal (except the special leave petition under article 136
and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court
against such judgment.
22. Thus going by the overall scheme in the provisions
contained in the Cr.P.C more particularly in Chapter XXIA and in the
light of the backdrop of the constitutional guarantees, the provisions
contained in Sec.265G would even override any other provisions of the
Code, inconsistent with the former. Therefore, the complainant cannot
contend that the accused should necessarily prove miscarriage of justice
or should establish factually that he has suffered failure of justice or
miscarriage of justice over the judgment impugned of the trial court in
the plea bargaining process so long as the accused can plead and
establish that there has been flagrant violations of the mandatory
provisions contained in Chapter XXIA of the Cr.P.C. In the light of these
aspects, this Court has no hesitation to hold that the contentions raised
by the learned counsel for R-2 challenging the correctness of the view
taken by the learned single Judge of this Court in Joseph v. State of Kerala
reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported
in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in
2016 (1) KLT 117 are bereft of any merit and the said arguments of the
complainant are overruled. That apart, this Court would fully concur
with the views, reasonings and conclusions arrived at by the learned
Single Judge [B.Kemal Pasha (J)] in the aforecited judgments. This Court
in the decision in Joseph P.J v. State of Kerala & anr. reported in 2015 (5)
KHC 586 has held in para 6 as follows:
"6. Consequently, an offence under S.138 of the NI Act is not covered by
S.265E Clauses (a) to (c). This is not an offence wherein minimum sentence has been
prescribed. In such case, in the case of plea bargaining, the Court below ought to have
complied with the provisions of S.265E(d) CrPC, and the Court below ought to have
imposed one fourth of the sentence that can be imposed. The offence under S.138 of
the NI Act is punishable with imprisonment with a term which may extend to 2 years,
or with fine, which may extend to twice the amount of cheque. Even in the case of
fine, the Court below could have imposed only half the amount ordered as fine in the
present case. In the matter of sentence, the Court below ought to have considered the
substantive sentence of imprisonment as well as the fine which could be imposed. In
that case the Court below ought to have imposed substantive sentence of
imprisonment for six months also."
23. In view of the said position, this Court would opine that it
may not be appropriate for the trial court to take recourse to the plea
bargaining process under Chapter XXIA of the Cr.P.C in relation to the
complaints for offence punishable under Sec.138 of the N.I.Act. If the
parties are willing, the trial court should endeavour to refer those
disputants to the nearest mediation centre or Adalat for facilitating
resolution of disputes through such alternate dispute resolution
mechanisms. If the mediation process undertaken by the parties is
successful, then the complainant could be permitted to withdraw the
complaint in terms of the provisions contained in Sec.257 of the Cr.P.C
or both the parties could be permitted to file a joint compromise petition
for compounding of the offence in terms of Sec.147 of the N.I.Act r/w
Sec.320 of the Cr.P.C. If Adalat process is successful, then award could
be passed in terms of the provisions contained in Legal Service
Authorities Act. In such cases, the Apex Court has held in K.N.Govindan
Kutty Menon v. C.D.Shaji reported in (2012) 2 SCC 51 that award of the
Adalat could be treated as executable decree, etc. Since the provisions
contained in Chapter XXIA of the Cr.P.C have been made effective from
5.7.2006, it appears that most of the trial courts may not be actually in grips
with the provisions contained in the said Chapter, which is to be appreciated
and applied in the backdrop of the aforementioned constitutional
guaranteed right.
24. The aforementioned provisions in Chapter XXIA of the
Cr.P.C are the procedures engrafted by the Parliament, which are to be
observed before the accused is found guilty and sentenced in such plea
bargaining process. If such mandatory procedures are violated, then it
will amount to denial of the procedural safeguards, which are inbuilt as
due process in Article 21 of the Constitution of India and the corollary
of such failure to observe those procedures would amount to
deprivation of the personal rights of an accused on account of his
conviction. Article 21 of the Constitution of India has guaranteed that
no person shall be deprived of his personal liberty except according to
the procedure established by law and case laws of the Supreme Court
are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1
SCC 248, wherein it has been held that the right to life and personal
liberty cannot be denied to anyone except, in accordance with the
procedure established by law, which is just, fair and reasonable. So
needless to say, any violation of such mandatory provisions in Chapter
XXIA of the Cr.P.C would amount to denial of constitutional right to life
and personal liberty of an accused.
25. The impugned decision making process of the trial court is
also vitiated on account of various other factors which have already
been referred to in detail in the preceding paragraphs of this judgment.
Sri.Sreelal N.Warrier, learned counsel for R-2, submits that believing on
the bonafides of the accused the complainant had even withdrawn the
civil suit filed by him as O.S.No.267/2013 against the accused in respect
of recovery of money covered by the dishonoured cheque in question
and that the complainant is in pitiable situation and that the accused
has disowned the plea bargaining in the criminal proceedings and the
accused could also get the advantage in the complainant's withdrawal
of the civil suit filed by him. Sri.Shaju Purushothaman, leaned counsel
appearing for the petitioner, on the basis of instructions of his party
would fairly submit that in case the complainant files a proper
application before the civil court for recall of the order dismissing the
suit as withdrawn and for restoration of the suit to be tried on merits,
then the accused, who is the defendant therein, will not oppose the said
plea and even the plea for condonation of delay in filing such
application before the civil court and that the accused does not want to
take any undue advantage over the complainant and that the
complainant may produce a copy of this judgment before the civil court
to show that the accused has made such an undertaking in that regard.
The said submissions made by Sri.Shaju Purushothaman, learned
counsel appearing on behalf on the accused, are recorded and it is for
the complainant to take appropriate measures before the civil court for
recall of the order dismissing the civil suit as withdrawn and for its
restoration, and to try the suit on merits, etc., and the undertaking on
the above said aspects made by the accused that he will not oppose such
pleas that may be made before the civil court may be brought to the
notice of the civil court by producing a copy of this judgment.
26. In the light of these aspects, it is held that the impugned
Ext.P-3 order dated 12.11.2014 passed by the Judicial First Class
Magistrate Court, Erattupettah, in C.C.No.101/2013 convicting and
sentencing the petitioner in the plea bargaining process, is declared as
illegal and ultra vires and the same is set aside. Consequently, the
complaint in C.C.No.101/2013 is restored to the trial court concerned
and the trial court will proceed with the trial of the case from the stage
where it had reached immediately prior to the commencement of the
plea bargaining process and then complete the trial in accordance with
law. Having regard to the fact that the complaint was instituted as early
as in the year February, 2013, it is ordered that the trial court will take
all expeditious steps to ensure that the trial is completed within a period
of 3-4 months from the date of production of a certified copy of this
judgment. It is further ordered that the trial court shall not in any
manner take into account the aspects relating to the plea bargaining
process and the final verdict is to be rendered, untrammelled in any
manner by the plea bargaining process which has been now set aside by
this Court. The Registry will return back the LCR along with a copy of
this judgment to the trial court.
With these observations and direction, the Original Petition
(Criminal) stands finally disposed of.
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