STATE OF GUJARAT Vs. MAHESHKUMAR AMBALAL RANA

JUDGEMENT

(1.) These two appeals by the State of Gujarat are directed against the impugned judgment and order dated 8-6-1990 rendered in two criminal cases Nos. 4337/86 and 14747/87 by the learned Chief Judicial Magistrate Bharuch wherein the respondent - M.A. Rana who came to be tried for the alleged offences punishable under Sections 409 467 and 477A of the IPC on pleading guilty to the charge was convicted for the same and instead of sentencing him to undergo any imprisonment or to pay a fine was simply ordered to be released on probation under section 4 of the Probation of Offenders Act 1958 (for short-the Act).

(2.) To state the prosecution case briefly the respondent M.A. Rana during the relevant period was working as a Junior Clerk in Jambusar Nagar Panchayat. It is further alleged that during the period 1985-86 he committed criminal breach of trust in respect of two amounts viz. that of Rs. 7 783 and Rs. 12 453 and in the process also forged and fabricated certain receipts and other relevant records of the Panchayat in the said regard. On the basis of these allegations the learned Magistrate framed two separate charges to which he pleaded not guilty and claimed to be tried. However thereafter during the course of the trial it further appear that the respondent all of a sudden turned round and on having some after-thought pleaded guilty to the charge. The learned Magistrate accepting the same convicted him for the alleged offences and releases him on probation of two years as stated in detail in the impugned judgment and order. It is under these circumstances that the State of Gujarat has filed these two appeals. 2.1 It may be stated that both these appeals arise out of more or less identical facts-situation except the fact that the amounts alleged to have been misappropriated are two different one of the different periods. Under the circumstances at the joint request and consent of the learned Advocates appearing for the respective parties these two appeals are heard and finally decided together by this common judgment.

(3.) M/s. M.A. Bukhari and K.P. Raval the learned APPs for the appellant-State while challenging the impugned order of releasing accused on the probation submitted that taking into consideration the two indisputable facts - firstly that the offence alleged against the respondent was under Section 409 of IPC which is punishable with imprisonment for life he could not have been released on probation under section 4 of the Act and secondly the respondent at the earlier stage having pleaded not guilty and claimed to be tried thereafter it was not open to the learned Magistrate to accept the plea of guilty and that he should have recorded the evidence and disposed of the cases on merits there two cases deserve to be remanded to the trial court for de-novo trial. In support of the first contention the learned APPs have relied upon Section 4 of the Act as well as decision of the Supreme Court rendered in the case of Somnath Puri vs. State of Rajasthan reported in AIR 1972 SC 1490 wherein it has been held that a person convicted for the offence under section 409 of the IPC which is punishable with life imprisonment cannot invoke the benefit under section 4 of the Probation of Offenders Act. Thereafter in support of the second contention also the learned APPs have relied upon the decision of this court rendered in the case of Jayanti Luxman vs. The State of Gujarat reported in 5(1964) GLR 648 wherein this court has taken the view that the stage of convicting an accused person on his plea of guilty comes when the charge is read over to the accused. If at that stage the accused pleads not guilty he cannot be convicted without recording evidence and without appreciating evidence which is recorded. What an accused says subsequent to the charge does not amount to a plea. On the basis of the aforesaid submissions the learned APPs finally urged that the impugned judgments and orders releasing the respondent on probation being illegal the same require to be quashed and set aside and that the cases be remanded to the trial court for de-novo trial.