RAJ KUMAR Vs. STATE OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
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(1.) A charge-sheet for commission of the offence under Section 13 of J.&K. Public Gambling Act came to be filed against five accused persons. The petitioner was one of them. On being called upon to plead by the learned trial Court, the petitioner/accused pleaded guilty. The statement of accused/petitioner for recording the plea of guilt was recorded by the learned trial Court. Accepting the plea of guilt, the learned trial Court vide its order dated 8-12-2003 imposed a punishment of fine of Rs. 300/- each upon all the accused including the petitioner. All the accused including the petitioner paid the fine and thus suffered the sentence. The accused/petitioner, however, challenged the order of his conviction and sentence in a revision petition before the learned 2nd Addl. Sessions Judge, Jammu. The learned Sessions Judge vide his order dated 30-4-2004 dismissed the revision petition filed by the petitioner and confirmed the sentence. Being not satisfied with the order of learned Sessions Judge, the petitioner/accused has filed this petition for invoking Section 561-A Cr. P. C. The accused/petitioner prays that the order of trial Court dated 8-12-2003 and order of learned Sessions Judge dated 30-4-2004 be quashed.
(2.) I have heard learned counsel for petitioner.
(3.) The contention of Mr. Dubey, learned counsel for petitioner is that since the statement of accused for recording the plea of guilt has not been recorded by the trial Court in conformity with Section 364 Cr. P. C., therefore, conviction of accused and sentence imposed are vitiated and bad in law. According to the learned counsel the said order should be set aside and the accused should be acquitted of the charge. Section 364 of Cr. P. C. reads as follows :
"364. Examination of accused how recorded.- (1) Whenever the accused is examined by any Magistrate, or by any Court, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or if that is not practicable, in the language of Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him, in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be singed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the court, or in English, if he is sufficiently acquainted with latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under Section 263.";
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