STATE OF GUJARAT Vs. JAYANTIBHAI CHATURBHAI PATEL

JUDGEMENT

(1.) IT is one of those unfortunate cases in which, service of notices or warrants has taken nineteen years and when at long last the proceedings are dropped against respondent nos. 4, 5 and 6 and learned counsel, Mr. H. M. Parikh has appeared for respondent nos. 1, 2 and 3, the appeal could be heard in extenso today after its admission on 28. 10. 1991.

(2.) THE appellant-State has called into question the judgement and order dated 05. 12. 1989 whereby, upon the accused persons pleading guilty, Criminal Case No. 6735 of 1989 was disposed with conviction for the offences under Sections 3, 5 and 7 of the Immoral Traffic (Prevention) Act,1956 by exercising powers under Section 252 of Cr. P. C. and sentencing the accused with fine of Rs. 100/-, in default, simple imprisonment for ten days. The impugned order is ex-facie absolutely illegal and shows complete lack of any sincere application of mind, in so far as Sections 3 and 5 of the Immoral Traffic (Prevention) Act,1956 (for short 'the Act') clearly provide for sentence of imprisonment for minimum periods of one year and three years.

(3.) IT was, however, submitted by learned counsel Mr. H. M. Parikh that the trial court had obviously misdirected itself in recording the conviction under Section 252 of Cr. P. C. when the offences for which the accused were charge-sheeted were triable as warrant cases. He further pointed out that the basic requirement of framing charge in writing under the provisions of Section 240 was not complied and therefore, the accused persons could not be presumed to have known what they were pleading guilty to. He emphasized the requirement of sub-section (2) of Section 240 of Cr. P. C. whereunder, the charge, after being framed in writing, is required to be read and explained to the accused persons before he is asked whether he pleads guilty of the offences charged or claims to be tried. Relying upon the judgement of the Supreme Court in Thippeswamy Vs. State of Karnataka [1983 Cri. L. J. J. 1271 (1)], which is followed by this court in State of Gujarat Vs. Uttam Bhikhu Prajapati [1992 Cri. L. J. 626], it was submitted that it would be violative of Article 21 of the Constitution to induce or lead the accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence where a disproportionately low sentence is imposed on the accused, as a result of plea-bargaining. In such cases it would not be reasonable, fair and just to act on the plea of guilt for the purpose of enhancing the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him. Learned counsel relied upon the dates of the proceedings for the inference that it was a case of plea-bargaining.