GARJAMAN GAJMER Vs. STATE OF SIKKIM

JUDGEMENT

(1.) WE have no doubt that this appeal must be allowed even on merits and the accused must be acquitted, even though the accused pleaded guilty and has been convicted by the learned Additional Sessions Judge on such plea, notwithstanding the apparent bar in Section 412 of the Code of Criminal Procedure against the maintainability of such an appeal except as to the extent or legalitv of the sentence.

(2.) THE accused has been convicted under Section 304-A, Indian Penal Code and has been sentenced to undergo one month's rigorous imprisonment and to pay a fine of Rs. 300/- in default to suffer rigorous imprisonment for a further period of 15 days. The learned Additional Sessions Judge, "upon consideration of all the documents referred to in Section 173" as required by Section 251-A of the Code of Criminal Procedure, 1898, by which this State is still governed, framed a charge against the accused as hereunder: I. . . hereby charge you Gariaman Lohar as follows:

(3.) THERE can therefore, be no doubt that if the charge could be and was leeally framed on the materials relevant therefor, and the accused pleaded guilty thereto, the conviction cannot be assailed though the sentence may be interfered with if it is excessive or illegal. It is, however, by now well-settled that though ordinarily in the case of a conviction on a plea of guilty there is a bar under Section 412. Code of Criminal Procedure for an appeal except as to the extent or legality of the sentence, but if the facts alleged or disclosed in the documents referred to in Section 173 do not amount to and cannot constitute any offence for which a charee has nevertheless been framed, a plea of guilty to such a charge is no bar to an appeal on merits and will not stand in the way of the accused being acauitted. This has been pointed out by the Division Bench of this Court in Puspa Kumar Rai v. State of Sikkim 1978 Cri LJ 1379 at p. 1382) and has been re-itereated in the later decisions in Rai Kumar Rai v. State 1979 Cri LJ 310 and Sonam Tshering v. State 1979 Cri LJ 1281 at p. 1288. This is also the view of the other High Courts, as will appear from the Madras High Court decision In re U. R. Ramaswami. on which reliance has been placed by Mr. A. Moulik. learned Advocate for the appellant, from the Madhya Pradesh High Court decision in State of Madhya Pradesh v. Mustaa Hussain and other cases.