Liju Abraham and Bibin Abraham v. Joy (Civil Police Officer) and The District Police Chief Ernakulam Rural, Ernakulam, and Junaid T.P.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945 ``` ## **`CRL.MC NO. 9624 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT ST 402/2020 OF JUDICIAL ``` ``` MAGISTRATE OF FIRST CLASS - III, PERUMBAVOOR ``` ## **`PETITIONER/S:`** ``` 1LIJU ABRAHAM,AGED 38 YEARS S/O ABRAHIM, RESIDING AT ALUKKA KULLUMGAL HOUSE, VAIKKAM BHAGAM, VAIKOM KARA, RANNI VILLAGE, PIN - 689672 2BIBIN ABRAHAM ,AGED 34 YEARS S/O ABRAHAM EZHICKAKATHU (H), CHITTAR KARA SEETHATHODU VILLAGE, SEETHATHODE P.O, PATHANAMTHITTA, PIN - 689667 BY ADVS. JOHNSON GOMEZ S.BIJU (KIZHAKKANELA) SANJAY JOHNSON JOHN GOMEZ ARUN JOHNY ``` ## **`RESPONDENT/S:`** ``` 1JOY (CIVIL POLICE OFFICER) WORKING AS WRITER IN KURUPPAMPADY POLICE STATION , KURUPPAMPADY, KERALA THROUGH THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE DISTRICT POLICE CHIEF ERNAKULAM RURAL, ERNAKULAM THE DISTRICT POLICE CHIEF ERNAKULAM RURAL,DISTRICT POLICE OFFICE, SH 16, OPP. POWER HOUSE, ALUVA, PIN - 683101 3JUNAID T.P , AGED 20 YEARS S/O JAMAL , OLAVILAM, CHOKLI VILLAGE, KANNUR 673313. ``` -2- Crl.M.C No. 9624 of 2022 ``` NOW RESIDING AT THAZHEPARAMBATH (H) MANIKKUNNAM, VELOOR VILLAGE, KOTTAYAM,, PIN - 686003 ``` ## **`OTHER PRESENT:`** ``` VIPIN NARAYAN PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C No. 9624 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No.9624 of 2022 ============================================================= Dated this the 8[th] day of September, 2023 ## **ORDER** The above Crl.M.C. is filed with following prayers: _“a. Call for the record leading to Annexure A4 order passed by the Judicial First Class Magistrate Court III Perumbavoor in ST 402/2020 and quash the same._ _b. To direct the Station House Officer Kuruppampady Police Station to conduct further investigation in Crime No.899/2019 registered as per Annexure A1 FIR._ _c. Grant such other relief as this Honourable Court may deem fit and proper.” (sic)_ 2. Annexure A4 is an order passed by the Judicial First Class Magistrate Court -III, Perumbavoor in ST No.402 of 2020 by which it is stated that the accused pleaded guilty for the offences punishable under Sections 279, 337, 338 IPC and he was imposed a fine of Rs.700/- and in default, he is directed to undergo simple imprisonment for 7 days. It is the case of the petitioners that the 1[st] petitioner was the de facto complainant in Crime No.899 of 2019 of Kuruppampady police station, which was registered under Sections 279, 337 and 338 -4- Crl.M.C No. 9624 of 2022 IPC. The same was registered on the complaint that the 3[rd] respondent was the driver of the vehicle bearing Reg.No.KL-60/K-4142 and he driven the vehicle in a rash and negligent manner which resulted in a road traffic accident, in which the petitioners suffered serious injuries. It is the case of the petitioners that the 1[st] petitioner was a passenger while the 2[nd] petitioner was the driver of the vehicle bearing Reg.No.KL-62/B-359 at the time of accident. Annexure A1 is the FIR. But in the final report, the investigating officer has named the petitioner No.2 as the accused, is the grievance. The investigating officer concluded that the petitioner No.2 is the accused on the basis of the statements recorded under Section 161 Cr.P.C of charge witnesses Nos.2, 3, 5, 6 and 7. Charge witness No.7 is the accused mentioned in Annexure A1 FIR and CW2 to 6 are the passengers in the offending car bearing Reg.No.KL-60/K-4142. The independent witness questioned by the police as charge witness No.9. Annexure A2 is the final report. It is the case of the petitioner that the incident, according to FIR, had happened on 23.08.2019 at about 5.30 hours. It is also the case of the petitioners that the police did not take any -5- Crl.M.C No. 9624 of 2022 initiative to retrieve the CCTV footage of the accident from CCTV camera installed in front of the Hotel Elegance Bar, Pulluvazhy, Perumbavoor. Annexure A3 is the CCTV footage from the CCTV camera installed in front of the Hotel Elegance Bar Pulluvazhy, Perumbavoor. According to the petitioners, CCTV footage of the accident was collected by the petitioner, which would clearly shows that the offending vehicle bearing Reg.No.KL-60/K-4142 driven by the 3[rd] respondent, was coming through the right side of the road from Perumbavoor to Muvattupuzha, while the vehicle driven by the petitioner No.2 was coming through left side of the road from Muvattupuzha to Perumbavoor. According to the petitioners, the investigating officers has not conducted a proper and scientific investigation. It is submitted that the petitioners entrusted the file to one lawyer and conducted the case. It is the case of the petitioners that the 2[nd] petitioner was advised to plead guilty in the case. It is also submitted that the petitioner No.2, without understanding the consequence of his act, entrusted a lawyer to plead guilty on his behalf and remit the necessary fine so as to avoid an arrest in the warrant -6- Crl.M.C No. 9624 of 2022 stated to have been issued against him. That is why Annexure A1 order came into force is the submission. The contention of the petitioners is that Annexure A4 order is passed without properly recording the plea of the petitioners. The petitioners also relied on the judgment of this Court in Crl.R.P.No.227 of 2021. 3. Heard the counsel for the petitioner and the Public Prosecutor. 4. This Court perused Annexure A4 order, which is an extract of the register of summary trials held before the Judicial First Class Magistrate-III in ST No.402 of 2020. In Column No.9 in Annexure A4 it is stated that “accused pleaded guilty”. In Column No.11, it is stated that the accused pleaded guilty, fine Rs.700/-, in default to undergo simple imprisonment for 7 days. 5. When the petitioners have got a different case that the plea is not recorded properly by the learned Magistrate, this Court in the order dated 08.06.2021 in Crl.R.P No.227 of 2021, relying the -7- Crl.M.C No. 9624 of 2022 ## decision in Mahant Kaushalya Das v. State of Madras [AIR 1966 SC 22] observed like this: _9. In the decision in Mahant Kaushalya Das v State of Madras (AIR 1966 SC 22), the Apex Court, though in the context of Section 243 of the old Code (corresponding to Section 252 of the Code of 1973), held as under;_ _“6. It cannot be disputed in the present case that there has been a violation by the Magistrate of the requirements of Section 243 of the Criminal Procedure Code which states:_ _“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 stated by the Magistrate in his report that the particulars of the offence were explained to the appellant by the Bench Clerk Shri M. Sukumara Rao and that the plea of guilty by the appellant was interpreted to the Court by the same Bench Clerk. It is manifest from the record that the admission of the appellant has not been recorded “as nearly as possible in the words used by him”, as required by Section 243 of the Criminal Procedure Code. It is true that in the judgment dated March 22, 1963 the Magistrate has said that the appellant “pleads guilty”, but the record contains no indication whatsoever as to what exactly the appellant admitted before the Magistrate. In our opinion, the requirements of Section 243 of the Criminal Procedure Code are mandatory in character and_ -8- Crl.M.C No. 9624 of 2022 _a violation of these provisions vitiates the trial and renders the conviction legally invalid. The requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension. It has been held by the Madras High Court in Queen-Empress v. Erugadu [ILR 15 Mad 83] that the violation of the procedure in Section 243 of the Criminal Procedure Code was sufficiently serious to invalidate the conviction of the accused. The same view has been taken by the Calcutta High Court in Shailabala Dasee v. Emperor [ILR 62 Cal II 27] and by the Allahabad High Court in Mukandi Lal v. State [AIR 1952 Allahabad 212] . In our opinion, these cases correctly lay down the law on the point.”_ _10. In Jupudi Anand Gupta (supra), the decision in Mahant Kaushalya Das was followed and the conviction of the appellant, based on his alleged plea of guilty, which the trial court had failed to record, was set aside. The proposition laid down by the above decisions is that the plea of guilty should not only be recorded, but such recording should, to the extent possible, be in the words spoken by the accused._ -9- Crl.M.C No. 9624 of 2022 _11. The relevant provisions and the precedents discussed above following mandate requirements compliance before acting of the upon the pleading of guilt by an accused;_ _(i) The Magistrate should frame the charge, specifying the offences alleged against the accused;_ _(ii)The charge should be read over and explained to the accused;_ _(iii)The accused should be asked whether he pleads guilty of the offence/s with which he is charged;_ _(iv) The accused understanding should the plead guilty seriousness of after the allegations and the implications of pleading guilty. The plea should be voluntary and expressed in clear and unambiguous terms._ _(v) The Magistrate should record the accused’s plea of guilty in the words of the accused, to the extent possible._ _(vi) The Magistrate, after considering all relevant factors should exercise his discretion and decide whether to accept the plea of guilty or not_ _(vii) If the plea is accepted, the accused can be convicted and suitable punishment imposed._ _12. Incidentally, the question whether an accused, who had pleaded not guilty at the stage of framing charge, guilty at could be a later consideration. Under Procedure, opportunity the permitted to stage, the also Code to plead arises of plead for Criminal guilty is provided only under Sections 229, 241 and 252, for Sessions, Warrant and Summons cases respectively. This opportunity arises_ -10- Crl.M.C No. 9624 of 2022 _immediately after the charge/accusation is framed/stated. In Santosh v State of Kerala (2003(2) Crimrs 141), a learned Single Judge has opined that the plea of guilt can be advanced by an accused at any stage of the trial after framing charge. Relevant portion of the Judgment reads as under;_ _“No doubt, there is no specific provision in the Cr.P.C. enabling the court to permit an accused to withdraw his claim to be tried and convict him on a plea of guilty subsequently. But as contended by the learned counsel for the petitioner, there is also no prohibition in the Cr.P.C. to record the plea of guilty in the course of trial and convict the accused on his subsequent admission of guilt. The object of trial is to investigate the offence and to find out the truth. When the guilt is admitted by the accused and the admission is found to be voluntary, there is no reason why the court should not allow him to withdraw his claim to be tried and plead guilty. In this connection it is relevant to note the decision of the Patna High Court in Shyama Charan Bharthuar and Ors. v. Emperor AIR 1934 Patna 330. It was held in that case that there is no implication that when an accused in the course of the trial withdraws his claim to be tried and plead guilty, the court is not entitled to record the plea either accept it or continue the trial. An identical question came up for consideration before the Allahabad High Court in Ram Kishun v. State of U.P 1996 Crl.L.J. 440. The Allahabad High Court held that a plea of guilt can be taken at any stage of trial after framing charge. The court observed that the necessity of evidence would arise only if and when the charge is not accepted. There is no reason to restrict_ -11- Crl.M.C No. 9624 of 2022 _the applicability of S. 229 of the Cr.P.C. to a particular date or occasion but the purport of section is obvious that plea of guilt can be advanced by an accused at any stage of the trial after framing charge. If an accused is allowed to withdraw his claim to be tried and plead guilty, an earlier termination of the trial can be secured and wastage of the precious time of the court can be avoided.”_ _In my considered opinion, the dictum in Santhosh requires reconsideration in subsequent introduction of Code vide Act 2 of 2006, the light of the Chapter XXIA to the providing for plea bargaining before the court in which the offence is 'pending trial'._ _13. As far as the instant case is concerned, the petitioner having pleaded not guilty at the first instance, recording of the monosyllabic answer 'yes' in the questionnaire prepared at the stage of framing charge, cannot, under any circumstance, be termed as pleading of guilt by the petitioner, based convicted him. Have convicting on which As the petitioner the court such, the are liable could judgments to be set aside._ _In the result, the criminal revision petitions are allowed by setting aside the conviction and sentence imposed on the petitioner. C.C Nos. 2058 of 2014 Judicial and 2059 First of 2014 Class are remitted Magistrate to the Court-I, Parappanangadi for retrial in accordance with law.”_ 6. In the light of the above dictum, I think in the peculiar facts and circumstances of the case, Annexure A4 order can be set aside and the trial court can be directed to reconsider the matter, -12- Crl.M.C No. 9624 of 2022 after recording the plea of the petitioners, in accordance with law. The 2[nd] prayer in the original petition regarding the further investigation in Crime No.899 of 2019 is left open and the petitioner is free to agitate the same before the trial court. Therefore, this Crl.M.C is disposed of in the following manner: 1. Annexure A4 order is set aside. 2. The Judicial First Class Magistrate Court -III, Perumbavoor is directed to proceed with ST No.402 of 2020, in accordance with law. 3. All other contentions of the petitioners are left open and they are free to agitate the same, before the lower court. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -13- Crl.M.C No. 9624 of 2022 ## **`APPENDIX OF CRL.MC 9624/2022`** ## `PETITIONER ANNEXURES` ``` Annexure A1A TRUE COPY OF THE FIR NO 899 OF 2019 DATED 24/08/2019 Annexure A2A TRUE COPY OF THE FINAL REPORT IN ST NO. 402/2020 IN CRIME NO. 899/2019 DATED 20/03/2020. AnnexureA4A TRUE COPY OF THE ORDER DATED 25/10/2022 IN ST NO. 402/2020 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT III PERUMBAVOOR AnnexureA5A TRUE COPY OF THE COMPLAINT DATED 16/12/2022 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENT NO. 2 ```