NIMA TSHERING BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THE appellants, having pleaded guilty to the. charges framed against them under Section 457/34 and Section 380/34 of the Penal Code by the Additional Ses sions Judge and having been convicted on such plea and sentenced to suffet rigorous imprisonment, for one year under the first charge and for two years for the second charge, have preferred this appeal,

(2.) UNDER the provisions of Section 412, Criminal P. C. 1898, by which this State is still governed, where an accused person has pleaded guilty and has been convicted on such plea by any Court other than that of a Magistrate of the Second or the Third Class, "there shall be no appeal except as to the extent or legality of the sentence". But it is by now well-settled that though ordinarily in the case of a conviction on a plea of guilty, the conviction cannot be assailed in appeal and only the sentence can be interfered with if it is excessive or illegal, yet if the facts alleged or disclosed by the prosecution in the documents referred to in Section 173 or otherwise, do not amount to and cannot constitute any offence for which a charge has nevertheless been framed, a plea of guilty to such a charge is no bar to an appeal on merits. This proposition has been affirmed by this Court in Pushpa Kumar Rai v. State of Sikkim 1978 Cri LJ 1379 at p. 1382 and has been reiterated in later decisions in Raj Kumar Rai v. State 1979 Cri LJ 310 and Sonam shering v. State 1979 Cri LJ 1281 at P- 1288 and also in a recent decision in Garjaman Gaimere v. State Criminal Appeal No. 8 of 1980, decided on 3rd April. 1981) (Reported in 1981 Cri LJ 1067 ).

(3.) MR. A. Moulik, the learned Advocate for the appellants, has not, however, been able to point out and we have also not been able to find out anything in the record to show that on the materials contained therein, the 1981 Cri. L. J. /88 X charges framed as aforesaid could not be framed or that the accused did not plead guilty or pleaded the same under such circumstances as would amount to no plea under the law. It may be noted that the contention that the plea of guilty was obtained from the accused as a result of threat, inducement or other undue influence, though urged by Mr. Moulik at the initial stage, has been expressly given up by him later.