Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934** **Crl.Rev.Pet.No. 703 of 2001 ( ) ------------------------------CRA.158/2000 of ADDL.D.C. & ADDL.MACT,ALAPPUZHA. CC.173/2000 of J.M.F.C., RAMANKARI** **REVISION PETITIONER(S):** **----------------------** **THOMAS, S/O. THOMAS MOOLAKALATHIL VEEDU CHINGAVANAM, NATTAKOM, KOTTAYAM.** **BY ADVS.SRI.LLOYD JOSEPH VIVERA** **COMPLAINANT(S):** **---------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 703 of 2001 -----------------------------------------Dated this the 9[th] day of November, 2012 ## **O R D E R** The petitioner was charged for offences under sections 279, 337 and 338 of IPC. When he appeared before court, he pleaded guilty. Since the plea was found to be made by the accused voluntarily, his plea was accepted and the learned Magistrate found the petitioner guilty and convicted him of those offences and he was sentenced to simple imprisonment for fifteen days and a fine of Rs.500/- for the offence under section 338 of IPC. Besides, he was also sentenced to pay a fine of Rs.1,000/- for the offence under section 279 of IPC. No separate sentence was awarded for the offence under section 337 of IPC. 2. The appellant filed appeal before the Sessions Judge contending that he was not aware of the consequence **Crl.R.P. No: 703/2001** **-2-** of the plea of guilt made by him and that he was not told that he would be sentenced to imprisonment. The appeal filed by him was dismissed by the learned Sessions Judge. 3. What is required under section 251 of Cr.P.C. is that when the accused appears in a summons case the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. The contention that the petitioner was unaware of the consequence of the plea was rightly discountenanced by the learned Sessions Judge. It was not a petty case. He was aware of the fact that the case against him is that he, as the driver, drove the vehicle in a rash or negligent manner and caused simple hurt and also grievous hurt to the victims. The contention that he ## **Crl.R.P. No: 703/2001** **-3-** was under the impression that he would be let off, on payment of fine only, is also unacceptable. The punishment prescribed for the offence under section 338 of IPC is imprisonment which may extend to two years or with fine which may extend to Rs.1,000/- or with both. 4. The contention that the Magistrate could have sentenced the petitioner only with fine, as the accused pleaded guilty, is also untenable. It is not a case of plea bargaining. The learned Sessions Judge has pointed out that the appellant did not file any affidavit stating that he did not understand the particulars of the charge read over to him or that he was not aware of the consequence of the plea of guilt made by him. It was also observed by the learned Sessions Judge that the statement of the accused, recorded by the learned Magistrate, would show that before imposing sentence the appellant was asked whether he had anything ## **Crl.R.P. No: 703/2001** **-4-** to say about the sentence. Though the appellant pleaded for mercy, it appears, considering the fact that the offences include section 338 of IPC, he was sentenced to simple imprisonment for fifteen days. 5. The contention that there was a practice in the Magistrate's court sentencing such accused involved in accident cases only with fine and that is why the petitioner happened to plead guilty is also unacceptable. This court and the apex court, on several occasions, deprecated the practice of awarding only flea bite sentence, when vehicular traffic is registering galloping growth. If such rash or reckless drivers are let off by sentencing them only to fine, it would have no deterrent effect. The judicial discretion is a “discretion which is informed by tradition, methodised by analogy and disciplined by system”. The court cannot turn Nelson's eye to the imperative of awarding the sentence **Crl.R.P. No: 703/2001** **-5-** commensurate with the gravity of the offence; especially taking note of the severity of rashness, the degree of carelessness and also the seriousness of the consequences which followed. The Magistrate cannot overlook the provision contained in section 354(4) of Cr.P.C. which provides that when a court imposes a sentence of imprisonment for a term of less than three months for an offence punishable with imprisonment for a term of one year or more, the court shall record its reasons for awarding such a sentence. That should certainly alert and persuade the Magistrate to award proper sentence bearing in mind the legislative mandate contained in section 354(4) of Cr.P.C. ## 6. In **Mohana Sreekumaran Nair v. State of Kerala 1986 K.L.T. 504** it was held by this Court : “A tendency is seen exhibited by the trial Magistrates in avoiding substantive imprisonment to offenders who are ## **Crl.R.P. No: 703/2001** **-6-** found guilty of the said offence. If persons driving vehicles inculcate a feeling that they can get away by paying some money as fine even in cases where reckless driving results in the deaths of innocent victims, the deterrent effect of sentencing policy disappears and it would tend those drivers to continue their reckless driving. By this it should not be misunderstood that in appropriate cases Magistrates shall have no discretion in imposing a sentence of fine alone. The legislature in section 354(4) of the Code of Crl. Procedure has manifested its intention that for offences punishable with imprisonment for a term of one year or more the courts must impose a sentence of imprisonment of more than three months unless reason for awarding a lesser sentence is recorded. This provision makes it clear that sentence of imprisonment is the rule **Crl.R.P. No: 703/2001** **-7-** and sentence of fine is only exception. In a country like ours where the roads are impoverished and the traffic system ill-organised, roads full of pedestrians including school going children who are untrained in traffic rules, the drivers of motor vehicles should always bear in mind the hazards involved in reckless driving. A fear of consequences for him if he causes death of another is an impelling psychological impulse to drive carefully. If he entertains a belief that the only consequence would be to pay a few rupees alone, he may not mind taking a chance of resorting to rash driving.” The observations made by this Court in the aforesaid decision cannot be lost sight of. 7. It was held by the Supreme Court in **Dalbir Singh v. State of Harayana (2000) 5 SCC 82** thus: **-8-** ## **Crl.R.P. No: 703/2001** “When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” These principles were reiterated in **B. Nagabhushanam v. State of Karnataka (2008) 5 SCC 730** . **-9-** ## **Crl.R.P. No: 703/2001** 8. In the resent decision of the apex Court in **State of Punjab v. Balwinder Singh (2012) 2 SCC 182** it has been held: “For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt.” Therefore the contention that the petitioner should have been let off by awarding only fine, cannot be sustained at all. The fact that the accused pleaded guilty is no reason for the Magistrate to award lesser sentence ignoring the mandate contained in Section 354(4) of Cr.P.C. **Crl.R.P. No: 703/2001** **-10-** 9. If, actually, the accused intended to opt for plea bargaining as per Chapter XXI A, then the accused has to file an application under section 265B of Cr.P.C. in which case the learned Magistrate has to dispose of the same following the guidelines contained in Section 265 C to 265 H of Cr.P.C. The prosecution contends that under section 265E, if the court finds that the offence committed by the accused is not covered by clause (b) or clause (c) then, it may sentence the accused to one- fourth of the punishment provided or extendable, as the case may be, for such offence. Here the accused did not opt for plea bargaining. 10. It is seen that the learned Magistrate has followed the procedure correctly. Plea was made by the accused voluntarily. However, the sentence can be slightly modified. ## **Crl.R.P. No: 703/2001** **-11-** 11. In the result this Criminal Revision Petition is disposed of as follows: The conviction is confirmed. The substantive sentence awarded for the offence under section 338 of IPC will stand reduced to simple imprisonment for eight days. In all other aspects the conviction and sentence passed by the court below will stand confirmed. The learned Magistrate will take steps to execute the sentence immediately on receipt of the copy of this Order. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj