BIJOY SINGH Vs. COMMANDANT, 2ND BATTALION MANIPUR RIFLES

JUDGEMENT

(1.) This application under Article 226 of the Constitution is directed against the order No. 2/4/71-2-MR dated 19-2-1972, passed by the Commandant, 2nd Battalion Manipur Rifles, dismissing the petitioner from service. The material facts are that the petitioner was a permanent Government servant being a L/Naik. He was prosecuted under Section 34 (6) of the Police Act and found guilty. The Magistrate passed the following order dated 1-11-1971 against him: "Accused present. Charges under Section 34 (6). Police Act are read out. The accused pleads guilty. As this is the first instance and as the accused is a Government servant I release the accused after giving a warning. Sd/- G. Chandrakumar Sharma, Magistrate Ist Class, Imphal West Manipur." Thereafter, respondent No.1(Commandant, 2nd Battalion Manipur Rifles) dismissed the petitioner by the impugned order dated 19th July, 1972. The impugned order was in the following terms : "On 26-10-71 No. 1698 Nk. Brjoy Singh (now under suspension) was, found under the influence of alcohol creating nuisance to the public and also disturbing the officers of the 2nd Bn Manipur Rifles. While thus misbehaving he was arrested by the Imphal Police and for the misconduct he was tried under Section 34 (6) of Police Act. Before the trying court he pleaded guilty. In view of the above proved misconduct the delinquent is quite unfit for disciplined force like Manipur Rifles and retention of the delinquent in the force is not desirable. His explanation to the show cause notice served on vide this office letter No. 2/4/71-2MR dated 5-7-72 is not considered satisfactory. Accordingly No. 1698 Nk. Bijoy Singh is dismissed from service with immediate effect. 2. During the period of suspension his pay and allowances will be restricted to subsistence allowance drawn. Sd/- Commandant 2nd Bn. Manipur Rifles."

(2.) Shri A. Nilamani Singh, learned counsel for the petitioner, submits that the order of the Magistrate is not an order of conviction as such it is not covered by proviso (a) to sub-article (2) of Article 311 of the Constitution, and as such the dismissal of the petitioner without any proceedings was in violation of Article 311 (2) of the Constitution.

(3.) The point that falls for determination in this case, therefore, is whether the above-mentioned order of the Magistrate is or is not an order of conviction. It is true that the Magistrate has not stated that he has "convicted" him. It appears from the last entry in Schedule II to the Code of Criminal Procedure, 1898 (hereinafter called the 'Code') that an offence punishable with imprisonment for less than one year or with fine only is a summons triable case and triable by any Magistrate. It is. therefore, indisputable that Section 243 of the Code applies to the present case. Section 243 may be quoted : "243. If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly."' It is clear that if the accused pleads guilty, the Magistrate may accept the plea of guilty and convict him accordingly. If the accused does not plead guilty he may proceed to take further evidence and try the case to find the accused guilty. In the instant case the Magistrate accepted the plea of guilty and convicted him although he has not used the word "convicted'' After the acceptance of the plea of guilty the Magistrate had two courses open: either to sentence him under Section 34 of the Police Act or to deal with the offender under Section 3 of the Probation of Offenders Act. In the instant case admittedly the petitioner was not sentenced under Section 34 and under that section sentence is possible only "on conviction before a Magistrate"; but, instead, the Magistrate proceeded to deal with the accused under Section 3 of the Probation of Offenders Act. The relevant portion of Section 3 of the Probation of Offenders Act may be quoted : "When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the I.P.C............. or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law. and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4, release him after due admonition." In the instant case, clearly, the petitioner was dealt with under Section 3. Sentence of an accused is not possible without conviction and Section 3 of the Probation of Offenders Act empowers the Magistrate to punish the accused or release him on probation of good conduct under Section 4 or release him after admonition instead of sentencing him. In the instant case, the petitioner was released after giving him a warning. According to the Chambers's Dictionary, one of the meanings of the word "admonition" is "warning". There is, therefore, no doubt that the petitioner was released after due admonition after conviction.