State of Kerala v. M.K. Vinod

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944** **CRL.RC NO. 4 OF 2020** **AGAINST THE JUDGMENT DATED 23.02.2019 OF THE I ADDITIONAL SESSIONS KOZHIKODE IN CRL.APPEAL NO.369 OF 2017. (CRIME NO.1175 OF 2014 OF KUNNAMANGALAM POLICE STATION) COURT ON ITS OWN MOTION:** **SUO MOTU,** **SUO MOTU PROCEEDINGS ON THE BASIS OF A PETITION RECEIVED FROM SRI.M.K.VINOD, KOZHIKODE REQUESTING REVISION OF JUDGMENT DATED 23/02/2019 PASSED BY 1ST ADDITIONAL SESSIONS COURT, KOZHIKODE IN CRIMINAL APPEAL NO.369/2017.** **BY SUO MOTU** ## **RESPONDENTS/STATE & APPELLANT/STATE & ACCUSED:** - **1 STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNAMANGALAM POLICE STATION, KOZHIKODE-673571. (BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALM-682031)** - **2 M.K. VINOD, S/O. THEYYATHIRA, AGE 32, MELE KOODATHIL HOUSE, P.O. NARIKKUNNI, MOORKKANKUNDU, KOZHIKODE673585.** **R1 BY SMT.MAYA.M.N.,PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 09.02.2023, THE COURT ON 15.02.2023 DELIVERED THE FOLLOWING:** 2 Crl.Rev.Case No.4 of 2020 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Criminal Revision Case No. 4 of 2020 ----------------------------------------------------------Dated this the 15th day of February, 2023** ## **O R D E R** This Criminal Revision Case was initiated suo motu. The facts leading to initiation of the revision case are the following: Sri. M. K. Vinod, Kozhikode had sent a letter petition to the High Court alleging that he is being forced to stand trial a second time in a case in which he has already undergone sentence. He was the accused in CC No. 726/2015 of the Judicial First Class Magistrate's Court, Kunnamangalam (Cr. No. 1175/2014 of Kunnamangalam Police Station). The offence charged was u/s 379, 468 & 471, r/w 34 of IPC. He was convicted and sentenced to undergo one year simple imprisonment by judgment dated 17.10.2017 of JFCM Court, Kunnamangalam in CC No. 726/2015. While he was undergoing the sentence, he preferred an appeal before the Sessions Court (Criminal Appeal No. 369/2017 of the I Additional Sessions Court, Kozhikode). Later he decided not to proceed with the appeal and had undergone the whole sentence. Hence, 3 Crl.Rev.Case No.4 of 2020 he informed his lawyer of his decision not to prosecute the appeal. Accordingly, the lawyer informed the Court that the appeal was not pressed. He states that, thereafter, without considering his plea, the Sessions Court heard and disposed of the appeal by setting aside the conviction and sentence passed by the Magistrate. The matter was again remanded to the Magistrate Court, vide judgment dated 23.02.2019, to conduct the trial afresh. But, before the judgment in the appeal was pronounced, he had completed the sentence awarded by the Magistrate and was released on expiry of the sentence. The warrant of commitment shows that he was admitted to the jail on 21.10.2017 and released on 11.07.2018 on expiry of sentence. After the Sessions court remanded the case to the Magistrate Court, a warrant was issued against him by the Magistrate. According to him, he is now forced to stand trial once again in a case in which he has already completed the whole sentence passed against him. 2. Although notice was served on the 2[nd] respondent, he did not chose to appear before this Court. 3. Heard the learned Public Prosecutor. 4. The 2[nd] respondent stood trial in C.C.No.726 of 2015 before the Judicial First Class Magistrate Court, Kunnamangalam. The offence charged was punishable under 4 Crl.Rev.Case No.4 of 2020 Section 379, 468 and 471 read with Section 34 of the I.P.C. The allegation was that the 2[nd] respondent along with another stole a motorcycle and after forging the registration number and other particulars used the same as genuine. When the charge was framed, the 2[nd] respondent denied it and claimed to be tried. But, on a later occasion, he submitted an application to allow him to plead guilty to the charge. The learned Magistrate accepted that request. Again the charge was read over and explained. The 2[nd] respondent pleaded guilty and on accepting that plea, the learned Magistrate convicted and sentenced the 2[nd] respondent to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- with a default sentence of simple imprisonment for one month. 5. The 2[nd] respondent preferred an appeal under Section 375 of the Cr.P.C. The I Additional Sessions Judge, Kozhikode allowed Crl.Appeal No.369 of 2017, and set aside the judgment of conviction and the order of sentence. The main reasons for setting aside the conviction are that the 2[nd] 5 Crl.Rev.Case No.4 of 2020 respondent had a plea of mental illness, and therefore he could not take a rational decision and that an accused could not be allowed to plead guilty to the charge if he earlier denied it. 6. The learned Public Prosecutor would submit that the Appellate Court entered into the aforesaid findings without there having any materials, and therefore the said findings are incorrect. Except the contentions in the appeal memorandum, no materials whatsoever has been produced before the Magistrate or the Appellate Court to show that the 2[nd] respondent has any kind of mental illness. The learned Public Prosecutor further would submit that there is no bar in allowing an accused to plead guilty to the charge on a subsequent occasion if he finds that a trial would not be advantageous to him. 7. This is a case where the 2[nd] respondent underwent the whole term of imprisonment as per the judgment of the learned Magistrate dated 17.10.2017. In the complaint submitted by the 2[nd] respondent before this Court, he would 6 Crl.Rev.Case No.4 of 2020 point out that he had instructed his counsel to withdraw Crl.Appeal No.369 of 2017, but in disregard to the same, the Appellate Court proceeded to allow the appeal. It is his case that on account of the said appellate judgment, his freedom is curtailed; since he has to stand trial second time, and that too after undergoing the whole term of imprisonment as per the judgment of conviction in C.C.N.726 of 2015. 8. This Court in **Raseen Babu v. State of Kerala [2021 (4) KLT 22]** held that there is no prohibition for allowing an accused to withdraw his claim to be tried and plead guilty at a later stage of the proceedings. Especially after introduction of Sections 265A of Cr.P.C., which enables an accused to have plea bargaining, it is only appropriate to allow an accused to plead guilty on a subsequent occasion even if he earlier had denied the charge. In the said circumstances, I am of the view that the Sessions Court went wrong in holding that the learned Magistrate should not have accepted the plea of the 2[nd] respondent since earlier he denied the charge. 7 Crl.Rev.Case No.4 of 2020 9. The learned Sessions Judge observed that under the compulsion of the circumstances, the 2[nd] respondent happened to admit guilt and therefore it cannot be said that it was a voluntary one. But there is no material to support the finding. Coercive steps were initiated only because the 2[nd] respondent absconded from the process of the law. Therefore, it cannot be said that initiation of coercive steps might have compelled him to plead guilty to the charge. As regards the observation that the 2[nd] respondent had mental illness also, there is hardly any material. As such, I am of the view that the finding the 2[nd] respondent pleaded guilty involuntarily is wrong. There is nothing on record that there was any kind of compulsion by anyone for his pleading guilty. In his complaint dated 08.08.2019 before this Court, he took the stand that he pleaded guilty knowing fully the consequences. What went wrong was that against his expectation that he would be released on probation, he was sentenced to undergo imprisonment. The said circumstances also show that the 2[nd] respondent pleaded guilty voluntarily. 8 Crl.Rev.Case No.4 of 2020 10. As a matter of fact, the 2[nd] respondent had undergone the whole term of the imprisonment. Taking all such aspects into account, I am of the view that the learned Sessions Judge went wrong in setting aside the judgment dated 17.10.2017 in C.C.No.726 of 2015 of the Judicial Magistrate of First Class, Kunnamangalam. Therefore, the judgment of the I Additional Sessions Judge, Kozhikode in Crl.Appeal No.369 of 2017 is set aside. The judgment dated 17.10.2017 in C.C.No.726 of 2015 of of the Judicial Magistrate of First Class, Kunnamangalam is restored. Since the 2[nd] respondent had undergone the whole period of the imprisonment, there is no need of taking any action for enforcement of the sentence. The Revision Case is disposed of accordingly. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr