Criminal Revision Application No. 515 of 2012

3rd January, 2013

Petitioner Counsel: Mr. RAM MANI UPADHYAY
Respondent Counsel: Mrs. G.P. MULEKAR

JUDGMENT

JUDGMENT :- The applicant was arrested and produced before the Magistrate along with a charge-sheet alleging commission of offences punishable under sections 145(b) and 147 of the Railways Act 1989. The applicant pleaded guilty before the Magistrate. On his plea, the Magistrate convicted him and sentenced him to suffer S.I for a period of one month and to pay a fine of Rs.1500/- in default to suffer S.I for 15 days.

2. Being aggrieved by the conviction and sentence imposed upon him by the learned Magistrate, the applicant approached the Court of Sessions by filing an appeal. The Court of Sessions admitted the appeal, and directed the release of the applicant on bail by suspending the sentence till the disposal of the appeal. However, when the appeal was finally heard, it came to be dismissed. The learned Addl. Sessions Judge who heard the appeal, was of the view that since the applicant had pleaded guilty, the appeal was barred by the provisions of section 375 of the Code of Criminal Procedure (hereinafter referred to as "the Code" for the sake of brevity).

Being aggrieved by the dismissal of his appeal, the applicant has approached this Court by filing the present revision application.

3. When the matter appeared before this Court on 21 December 2012, this Court (Coram: K.U.Chandiwal, J) directed that the revision shall be heard finally at the admission stage itself. That is how the matter today appears before me.

4. I have gone through the revision application and the annexures thereto. I have heard and considered the submissions made by the learned counsel for the applicant.

5. Section 145 of the Railways Act reads as under:-

"145. Drunkenness or nuisance.- If any person in any railway carriage or upon any part of a railway--

(a) is in a state of intoxication; or

(b) commits any nuisance or act of indecency or uses abusive or obscene language; or

(c) wilfully or without excuse interferes with any amenity provided by the railway administration so as to affect the comfortable travel of any passenger, he may be removed from the railway by any railway servant and shall, in addition to the forfeiture of his pass or ticket, be punishable with imprisonment which may extend to six months and with fine which may extend to five hundred rupees: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than--

(a) a fine of one hundred rupees in the case of conviction for the first offence; and

(b) imprisonment of one month and a fine of two hundred and fifty rupees, in the case of conviction for second or subsequent offence."

6. Section 147 of the Railways Act reads as under:-

"147. Trespass and refusal to desist from trespass.

(1) If any person enters upon or into any part of a railway without lawful authority, or having lawfully entered upon or into such part misuses such property or refuses to leave, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than a fine of five hundred rupees.

(2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid."

7. I have examined the charge-sheet that had been filed against the applicant. The column no.2 of the printed proforma of the charge-sheet (which is meant for giving the description of the offence) gives the description of the offence as under:-

^^jsyos dkWyksuh [ksjokMh fcfYMax ua-122@19 vukf/kd'r #i ls jgus rFkk 'kksj djrs idMk x;k**

Translated in English, it would read thus: 'Caught while unofficially residing in Railway Colony, Kherwadi Building No.122/19 and making noise.'

Except this, there are no other facts or details of the alleged offences anywhere in the charge-sheet.

8. On the reverse of the charge-sheet there is the order of conviction. A rubber stamp has been put on the charge-sheet which, inter alia, records the provisions of law under which the applicant was charged viz. 145(b) and 147 of the Indian Railways Act. It does mention 'charge as per charge-sheet is read over and explained to the accused'. Thereafter, the order, also in the form of rubber-stamp, is passed which reads as under:-

ORDER

On the plea of the accused, I convict and sentence to suffer SI for one month and to pay a fine of Rs.1500/- default it to suffer 15 days's/Months/Simple Imprisonment.

Except the words "one month" and the figure of fine and the default sentence, all other matter has been written in the form of a rubber stamp impression. The plea of the accused is also appearing on the same page which reads as "eq>s xqUgk dcqy gS !"

9. There is substance in the contention of Mr.Upadhyay, the learned counsel for the applicant that the procedure adopted for the prosecution of the applicant was not proper or legal.

10. The learned counsel submitted, inter alia, that the offences with which the applicant had been charged are 'non-cognizable', and that therefore, the applicant could be arrested for those offences only in accordance with the provisions of section 179 or 180 of the Railways Act. He submitted that the column no.6 of the printed prescribed proforma of the charge-sheet is meant for containing the reasons or the grounds on which the applicant came to be arrested. He submitted that these grounds have not been mentioned at all in the charge-sheet and the said column has been kept blank. Indeed, though a number of grounds are listed in the said column, the relevant information has not been filled in at all, in the charge-sheet.

11. It is true that when an accused pleads guilty, no appeal except as to the extent or legality of the sentence would lie. It is clearly stipulated by section 375 of the Code. However, the plea of guilty must be a legally valid plea. It pre-supposes that the accused has been explained the nature and particulars of the offence, which he is alleged to have committed, and it is only after understanding the same, he pleaded guilty.

12. In the instant case, the rubber-stamp impression of the order convicting the applicant mentions 'charge as per charge-sheet is read over and explained to the accused'. It has already been seen that the charge as mentioned in column no.2 of the printed prescribed proforma, does not actually spell out of the ingredients either of the offence punishable u/s.145(b) or 147 of the Railways Act. In any case, there is no reference to any nuisance or act o f indecency or use abusive or obscene language; which is of essence if an accusation of having committed an offence punishable under clause (b) of section 145 of the Railways Act, is to be levelled. What has been mentioned in the charge-sheet is that the accused was caught 'while making noise' ('kksj djrs). In view of such type of vague assertions in the charge-sheet, it was necessary for the Magistrate to have explained the particulars of an offence properly to the applicant, but apparently, the same was not done, inasmuch as, the order convicting the applicant only records that 'charge as per charge-sheet is read over and explained'.

13. There is also another aspect of the matter. The applicant was charged of two offences. The order of conviction recorded by the Magistrate is a composite one and does not specify what sentence has been given for which offence. Even the default sentence is one and single. This clearly shows, at least prima facie, non-application of mind on the part of the learned Magistrate. The order does not throw any light on whether the applicant was convicted of both the offences, or for only one of them, and what was the sentence for each of the said offence assuming that he was convicted for both the offences. The learned APP clearly conceded that the charge has not been properly explained in the charge-sheet, and that having regard to the blanks kept in the charge-sheet, the charge-sheet can be termed as defective. She however, submitted that since the applicant had pleaded guilty, these aspects did not require any deeper consideration. In any event, she submitted that if the applicant has indeed undergone a sentence of 11 days already, then, she would have no objection if the sentence is reduced to what is already undergone, or even to a sentence of fine.

14. I have carefully considered the matter.

15. In my opinion, when the so called 'charge-sheet' itself is defective, and when the basis for arresting the applicant is not clear - inasmuch as the conditions requisite in section 179 and/or 180 of the Railways Act are not claimed to have been fulfilled before his arrest - the whole prosecution against the applicant is to be treated as bad in law.

16. The plea of the applicant has also not been properly recorded and even the operative order imposing the sentence upon the applicant, is defective.

17. Admittedly, no copy of the charge-sheet was furnished to the applicant before his conviction. The conviction of the applicant on the basis of such faulty investigation and prosecution cannot be allowed to stand. Even otherwise, when the charge-sheet did not disclose the ingredients of the alleged offences, - not with sufficient clarity at any rate - and the record merely shows that 'charge as per charge-sheet was read over and explained to the accused' it is not possible to hold that the legal requirement to state and explain the particulars of offence before asking the applicant whether he pleaded guilty, was complied with. The plea of guilty is therefore, not valid.

18. Having held so, ordinarily the matter would have been remanded back to the Magistrate for recording the plea of the applicant afresh, and for proceeding further with the matter in accordance with law. However, in the instant case, it appears that the applicant has already undergone imprisonment for a period of 11 days. The offences in question cannot be said to be serious, going by the punishment provided for the offences. An option has been given to the court to impose only a sentence of fine with respect to such offences. Considering this, it would not be desirable to remand the matter back to the Magistrate and/or to direct a re-trial.

19. Revision Application is allowed.

20. The order of conviction of the applicant, as recorded by the learned Magistrate and the sentence imposed upon him are quashed and set aside.

21. The applicant stands acquitted. He be set at liberty forthwith. Fine, if paid, be refunded to him.

22. A copy of this order be forwarded to the learned Magistrate as well as to the Head of the Railway Protection Force in Mumbai, for information, who may be requested to acknowledge the receipt thereof.

23. Revision Application is disposed of accordingly.

Revision Application allowed.