STATE Vs. GOPINATHA PILLAI

JUDGEMENT

(1.) The Additional Sessions Judge, Quilon allowed an appeal against the conviction of the respondent for an offence under S.55(g) of the Abkari Act setting aside the conviction and sentence and remanding the case to the Trial Court for fresh disposal. The conviction by the Trial Court was based upon a plea of guilty entered by the accused. The learned Sessions Judge found that the accused did not plead guilty voluntarily. In that view the conviction was found liable to be set aside. This is attacked in this revision by the State.

(2.) Before I go into the merits of the case it may be necessary to observe that there is some confusion in the minds of the parties as to whether the learned Sessions Judge exercised appellate or revisional power in setting aside the conviction and sentence. The State has evidently treated the case as one where the Sessions Judge had invoked his revisional power in making the impugned decision. There was a contention for the State before the learned Judge that the appeal should not be entertained because of the bar of S.375 of the Code of Crl. Procedure. Evidently to meet this, counsel for the accused submitted in that court that at any rate the facts were such as to justify invoking the revisional power of the court and therefore even if not entertainable as an appeal the grievance of the appellant could be heard as if he was invoking the revisional power. The court found that this could be done. But that by itself need not be taken as the court's order converting the appeal into a revision. I do not find any order in the judgment of the learned Judge treating the case as one falling under S.397 of the Code. He was only remarking in answer to the contention of the State before him that as pointed out by the appellant it would be possible to entertain the challenge to the judgment of the trial Magistrate even as a revisional court. The appeal was not renumbered as a revision nor was it directed to be renumbered. In these circumstances I must take it that the learned Judge disposed of the appeal without converting it into a revision.

(3.) The answer to the controversy as to whether the appeal was maintainable would in a way also answer the contention of the parties on the merits. The case of the accused respondent in this revision is that there was no genuine plea of guilty and therefore S.375 would not apply. In that event the appeal would be maintainable. If that be so, for the very same reason, that there was no plea of guilty the order has to be set aside as found by the learned Sessions Judge. Hence, if once the appeal is held to be maintainable despite S.375 of the Code it would automatically follow that the appellant before the learned Sessions Judge was entitled to relief which was granted to him by the learned Judge.