STATE OF GUJARAT Vs. SHANABHAI SHANKERBHAI GOHEL

JUDGEMENT

(1.) The respondent herein Shanabhai Shankerbhai Gohel is the original accused in Criminal Case No. 43/78 which proceeded before the Chief Judicial Magistrate Bharuch and wherein the respondent was charged for an offence under sec. 409 of the Indian Penal Code vide charge (Exh. 2). It was alleged against the accused that being a Sarpanch of the Gram Panchayat of the village of Aladar he was a public servant and during his status as such he misappropriated a sum of Rs. 630-40 ps. and committed the aforesaid offence. The respondent pleaded not guilty to the charge which was levelled against him vide Exh. 3. Thereafter the complainant Rameshchandra Trikamlal Meckwana was examined as a witness for the Prosecution (Exh. 7) and after his examination-in-chief was over the matter was adjourned to 16-11-1978. On that day the respondent vide Exh. 18 made a confession and prayed for the mercy of the Court. the records show that prosecution witness No. 1 the complainant was thereafter not cross-examined and the learned Chief Judicial Magistrate held the respondent guilty under sec. 409 of the Indian Penal Code but instead of sentencing him at once he suspended the sentence and released the respondent on probation of good conduct on a condition to furnish a security for Rs. 1 0 for a period of one year and be of good behaviour during the said period and to appear as and when called upon by the Court to receive the sentence under sec. S of the Probation of Offenders Act.

(2.) Being aggrieved by this order of the learned Chief Judicial Magistrate the State of Gujarat filed the present appeal under sec. 377 of the Criminal Procedure Code for enhancement of the sentence. When the appeal was taken up for hearing the respondent filed his affidavit submitting therein that after the evidence of Prosecution witness No. 1 was over to the extent of examination-in-chief he was told by his advocate Police Prosecutor and the learned Magistrate that he would be dealt with very leniently and no imprisonment would be imposed on him. He has further submitted that he had done in fact the work of filling sand for the full amount but as Talati was inimical to him Talati entered only Rs. 752/and took his signature. He was not educated and had studied only upto Gujarati Standard fourth. He has requested that the matter may be remanded and that he may be tried in accordance with law.

(3.) Even apart from this affidavit it clearly appears even from the perusal of the record of the case that the learned Chief Judicial Magistrate has fallen a prey to the temptation of securing an early disposal of the matter by the practice popularly known as plea bargaining. Times out of number such a practice is deprecated and it seems that the observations made even in the reported cases have fallen on deaf ears. In the case of Kasambhai Abdulrehmanbhai Sheikh etc. v. State of Gujarat & ;another reported in AIR 1980 Supreme Court 854 Bhagwati J. speaking for the Division Bench made the following observations:-