STATE Vs. THOMBA
LAWS(GAU)-1970-11-5
HIGH COURT OF GAUHATI
Decided on November 03,1970

STATE Appellant
VERSUS
Thomba Respondents

JUDGEMENT

R.S.BINDRA, J. - (1.) SHRI H. Tomba was convicted under Section 25(1)(a) of the Indian Arms Act on 8.5.1969 on the plea of guilty alleged to have been entered by him, and he was sentenced to a fine of Rs. 100/ - or in default 45 days' rigorous imprisonment. The State felt aggrieved with the sentence imposed and so filed the instant revision petition praying that the sentence should be suitably enhanced. It was mentioned in the revision petition that in view of the prevalent law and order situation in the Territory of Manipur it was essential that some corporal punishment should have been awarded to the convict.
(2.) WHEN the revision petition came up for hearing in this Court, Shri Priyananda Singh, representing the convict, challenged the validity of the conviction itself. It was conceded by the learned Government Advocate that it was open to the convict in the present revision to show cause against his conviction. Sub -Section (6) of Section 439, Criminal Procedure Code provides that notwithstanding anything contained in the section, any convicted person to whom an opportunity has been given under Sub -Section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction. Therefore, it is lawful for this Court to examine and adjudge the correctness or otherwise of the objection raised on behalf of the Respondent respecting the validity of his conviction.
(3.) THE contention of Shri Priyananda Singh was that after the charge had been read over and explained to the accused H. Tomba by the trial Court, the latter never formally called upon the former to plead to the charge, and that as such the provisions of Sub -Section (5) of Section 251 -A, Criminal Procedure Code had been violated with the consequence that the trial stands vitiated. Sub -Section (5) enacts that if the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Shri Priyananda Singh emphasised the words "shall record the plea" used in the Sub -Section to reinforce the contention about the invalidity of the trial. He also invited the Court's attention to the record prepared by the Sub -Divisional Magistrate to demonstrate that the plea of guilty had never been recorded at all. The charge -sheet contains the recital in the Magistrate's hand that the charge was read over and explained to the accused in the language known to the latter and that "he has pleaded guilty to the charge". His plea however was never recorded. The charge sheet of course bears the signature of the accused in the left margin. In the judgement itself it is stated that the charge had been read out and explained to the accused and that "he has pleaded guilty stating that he made the gun" It is not possible to spell out from what is recorded on the charge -sheet and in the judgement what precise words had been used by the accused while pleading to the charge. According to the recitals 'in the judgement, the accused may have stated only that "he had made the gun", for the words "he has pleaded guilty stating that he made the gun" in the judgement are susceptible of that interpretation. The learned Government Advocate was unable to contend that it is possible for this Court to make out from the record of the trial Court in what manner and in what language the accused had pleaded guilty to the charge. It would be highly unsafe, under the circumstances, to attribute a plea of guilty to the accused merely on the conclusion recorded firstly in the writing made by the Magistrate on the charge -sheet and then in the judgement itself. Apart from the factual infirmities just mentioned, there is a serious legal lacuna in the case arising out of non -recording of the alleged plea of guilty. Sub -Section (5) of Section 251 -A, Criminal Procedure Code enjoins in peremptory language that "the Magistrate shall record the plea" of guilty entered by the accused. Therefore, non -recording of such plea means flouting the mandatory legislative injunction and the consequence that must follow is that the trial itself is invalidated. The learned Government Advocate was unable to satisfy this Court that non -recording of the plea of guilty under Sub -Section (5) is only a curable irregularity and not an illegality vitiating the trial. True, that Shri Priyananda Singh was also not able to cite any authority to buttress his submission that non -recording of plea under Sub -Section (5) nullifies the trial. However, in the case of Mahamda v. State, AIR 1952 Ajmer 4, it was held that the conviction cannot be sustained on a plea of guilty allegedly entered by the accused but not recorded specifically.;


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