EMPEROR Vs. JANARDAN KASHINATH ABHYANKAR

JUDGEMENT

(1.) This is an application in revision from a conviction by the Presidency Magistrate, Fourth Court, The accused was convicted under Section 17 (1), Criminal Law Amendment Act XIV of 1908, and sentenced to four months rigorous imprisonment. The facts of the case shortly are that the accused was arrested at 7 A.M. on 15 October, 1930, and was charged for being a member of an unlawful association known as Satyagraha Volunteers or Congress Volunteers, which was declared an unlawful association by a notification in the Bombay Government Gazette dated 14 October, 1930. The accused pleaded guilty, but the learned Magistrate, having merely recorded that plea by the letters "A.P.G." which mean "accused pleads guilty," then proceeded to hear evidence as to the facts giving rise to the charge, and in the result he says in his judgment: "The accused is found guilty and convicted and sentenced to four months rigorous imprisonment."

(2.) Now the reference was made to this Court because it was thought that the conviction in this case might not be in accordance with our decisions in Emperor v. Balkrishna Hirlekar and Emperor V/s. Shripad . Both the decisions in question were decisions relating to evidence. In the one case we dealt with the evidence necessary to prove notification in the Gazette of the declaration that the association is unlawful, and in the other case we dealt with the evidence necessary to prove membership of an unlawful association and we held that membership of an unlawful association was not proved merely by showing that the accused was a member of that association before it was declared unlawful The suggestion made by the learned Government Pleader is that where you get a plea of guilty, it is not necessary to go into any question of evidence, and, therefore, neither of our decisions, both of which, as I have paid, dealt with evidence, is applicable. I am disposed to agree that there would be no answer to that if the accused had pleaded guilty and the plea of guilty had been accepted, but in deciding this case, in which the Magistrate heard evidence and merely recorded the plea of guilty, one has to consider the provisions of the Criminal Procedure Code. This being a summons case the relevant provisions are contained in Section 242 and the following sections. Section 242 provides that when the accused is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause why he should not be convicted, but it shall not be necessary to frame a formal charge. Then Section 243 provides that 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 seems to me clear that under that section the Magistrate has a discretion. He may accept the plea of guilty and convict, and if he does then, having regard to Section 412, the accused has no right of appeal except as to the extent or legality of the sentence. But, if the Magistrate does not accept the plea, then one has to look at the following sections to see the course open to him. Section 244 provides that if the Magistrate does not convict the accused under the preceding section the Magistrate shall proceed to hear the complaint and take all such evidence as may be produced in support of the prosecution and hear the accused. Then, under Section 245, if the Magistrate upon taking the evidence referred to in Section 244, finds the accused not guilty he shall record an order of acquittal; but where the Magistrate finds the accused guilty he shall pass sentence upon him according to law. Now it seems to me that if the Magistrate exercises his discretion under Section 243, by not accepting the plea of guilty and proceeds to hear evidence, he must then satisfy himself that the evidence which he hears justifies a conviction. If he hears evidence and the evidence does not prove the facts of the charge it seems to me that it is not open to him to go back and say : "Well, although the charge is not proved nevertheless I am now going to accept the plea of guilty under Section 243, and sentence the accused on that."

(3.) No doubt, if the Magistrate decides to accept the plea of guilty under Section 243, and convict, he may call evidence for the purpose of acquainting himself with the facts so as to enable him to arrive at a proper conclusion as to the sentence to be passed. But that is a different matter; he is not there hearing evidence in order to show whether the accused was guilty or not. In the present case the Magistrate has not told us why he heard evidence; he has not said that he accepts the plea of guilty or that he does not accept it. We have to arrive at a conclusion as to what he intended from the circumstances of the case and having regard to the fact that he proceeded to hear the evidence, not directed to the sentence to be passed, but directed to proving the facts alleged in the charge, I have no doubt that he intended to exercise his discretion under Section 243 by not accepting the plea of guilty. I think he probably desired to act with the utmost fairness towards the accused by seeing that the charge was proved, and he did satisfy himself that the evidence was sufficient. But he did not anticipate the subsequent decisions of this Court which show that the evidence in point of law was not enough to justify a conviction. That being so I think the plea of guilty does not really affect the question inasmuch as it was not accepted by the learned Magistrate, and that, therefore, the conviction must be set aside.