Sunday 10 December 2017

Whether court can take recourse to plea bargaining in Cheque dishonour case?

  Thus going by the overall scheme in the provisions

contained in the Cr.P.C more particularly in Chapter XXIA and in the

light of the backdrop of the constitutional guarantees, the provisions

contained in Sec.265G would even override any other provisions of the

Code, inconsistent with the former. Therefore, the complainant cannot

contend that the accused should necessarily prove miscarriage of justice

or should establish factually that he has suffered failure of justice or

miscarriage of justice over the judgment impugned of the trial court in

the plea bargaining process so long as the accused can plead and

  establish that there has been flagrant violations of the mandatory

provisions contained in Chapter XXIA of the Cr.P.C. In the light of these

aspects, this Court has no hesitation to hold that the contentions raised

by the learned counsel for R-2 challenging the correctness of the view

taken by the learned single Judge of this Court in Joseph v. State of Kerala

reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported

in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in

2016 (1) KLT 117 are bereft of any merit and the said arguments of the

complainant are overruled. That apart, this Court would fully concur

with the views, reasonings and conclusions arrived at by the learned

Single Judge [B.Kemal Pasha (J)] in the aforecited judgments. This Court

in the decision in Joseph P.J v. State of Kerala & anr. reported in 2015 (5)

KHC 586 has held in para 6 as follows:

                     "6. Consequently, an offence under S.138 of the NI Act is not covered by

            S.265E Clauses (a) to (c). This is not an offence wherein minimum sentence has been
            prescribed. In such case, in the case of plea bargaining, the Court below ought to have
            complied with the provisions of S.265E(d) CrPC, and the Court below ought to have
            imposed one fourth of the sentence that can be imposed. The offence under S.138 of
            the NI Act is punishable with imprisonment with a term which may extend to 2 years,
            or with fine, which may extend to twice the amount of cheque. Even in the case of
            fine, the Court below could have imposed only half the amount ordered as fine in the
            present case. In the matter of sentence, the Court below ought to have considered the
            substantive sentence of imprisonment as well as the fine which could be imposed. In
            that case the Court below ought to have imposed substantive sentence of
            imprisonment for six months also."

                                   


            23.      In view of the said position, this Court would opine that it

may not be appropriate for the trial court to take recourse to the plea


bargaining process under Chapter XXIA of the Cr.P.C in relation to the


complaints for offence punishable under Sec.138 of the N.I.Act. 

            24.      The aforementioned provisions in Chapter XXIA of the

Cr.P.C are the procedures engrafted by the Parliament, which are to be

observed before the accused is found guilty and sentenced in such plea

bargaining process. If such mandatory procedures are violated, then it

will amount to denial of the procedural safeguards, which are inbuilt as

due process in Article 21 of the Constitution of India and the corollary

of such failure to observe those procedures would amount to

deprivation of the personal rights of an accused on account of his

conviction. Article 21 of the Constitution of India has guaranteed that

no person shall be deprived of his personal liberty except according to

the procedure established by law and case laws of the Supreme Court

are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1

SCC 248, wherein it has been held that the right to life and personal

liberty cannot be denied to anyone except, in accordance with the

procedure established by law, which is just, fair and reasonable. So

needless to say, any violation of such mandatory provisions in Chapter


XXIA of the Cr.P.C would amount to denial of constitutional right to life


and personal liberty of an accused.


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                  MR. JUSTICE ALEXANDER THOMAS
                    OP(Crl.).No. 6 of 2016 (Q)
                       P.J.JOSEPH,
                    Vs
                 STATE OF KERALA,
                    
               Dated this the 6th day of July, 2017.




      The petitioner herein is the accused for offence under Sec.138 of

the Negotiable Instruments Act, in C.C.No.101/2013 on the file of the

Judicial First Class Magistrate Court, Erattupetta, instituted on the basis

of a complaint filed by the 2nd respondent herein. The petitioner availed

the facility of plea bargaining as envisaged in Sec.265B of Chapter XXIA

of the Cr.P.C.    Ext.P-2(1) is stated to be the statement of mutually

satisfactory disposition said to have been arrived at between the

petitioner-accused and R-2 complainant under Sec.265C of the Cr.P.C,

wherein the accused has stated that he is ready to plead guilty of the

above offence and pay the fine ordered by the court and further that the

complainant has no objection in accepting the plea of the accused if an

amount of Rs.4.5 lakhs (Rupees Four Lakhs and Fifty Thousand only) is

paid as compensation to the complainant under Sec.357 (1)(b) of the

Cr.P.C. The complainant had no objection in granting a period of 5

months to the accused for paying the fine/compensation amount.

Ext.P-2(4) is the application for plea bargaining filed by the petitioner


under Sec.265A of the Cr.P.C. and Ext.P-2(3) is the affidavit filed along

with the said application. Ext.P-2(2) is stated to be the report of the

mutually satisfactory disposition. Ext.P-3 is the order passed by the

learned Magistrate under Sec.265E regarding the disposal of the matter,

whereby the Magistrate has accepted the mutually satisfactory

disposition in his plea bargaining and had ordered that the petitioner is

found guilty of the offence under Sec.138 of the N.I.Act and that he is

sentenced to pay compensation of Rs.4.5 lakhs to the complainant

under Sec.357(3) of the Cr.P.C., and in default thereof he was sentenced

to undergo simple imprisonment for 6 months, etc.

            2.       It is the contention of the petitioner that the impugned

Ext.P-3 order/judgment passed by the trial court accepting the plea

bargaining is in flagrant violation of the mandatory provisions which

regulate the procedure for plea bargaining contained in Chapter XXI A

of the Cr.P.C. It is contended that the slightest deviation thereof would

result in the negation of fundamental rights of the accused and none of

the vital procedure prescribed to be followed before accepting the plea

bargaining has been complied with, except for the minimal formalities.

Further, most importantly, the trial court has not examined the

petitioner-accused in the absence of the complainant under in camera


as per the mandatory provisions contained in sub-sec.(4) of Sec.265B of

the Cr.P.C. It is also contended by the petitioner that the statutory report

of mutually satisfactory disposition of the case has not been prepared by

the trial court in accordance with the mandatory provisions contained

in Sec.265D of the Cr.P.C., etc. The petitioner essentially places reliance

on the judgments dated 8.10.2015 of this Court in Joseph v. State of

Kerala [W.P.(C).No.13803/2014] reported in 2015 (4) KLT 364, Joseph

P.J v. State of Kerala & anr. [O.P(Crl).No.41/2015] reported in 2015 (5)

KHC 586 and Bala Dandapani v. State of Kerala [O.P(Crl).No.253/2014]

reported in 2016 (1) KLT 117, wherein it has been held that the

provisions contained in Chapter XXIA of the Cr.P.C are mandatory

procedures contemplated thereunder and that in case of plea

bargaining, the accused should be examined in camera in the absence

of the complainant or defacto complainant and that where the trial

court disposes of a matter accepting plea bargaining without examining

the accused in camera in the absence of the complainant as mandated

in Sec.265B(4) of the Cr.P.C, then it will be a grave illegality which

would result in quashment of the order/judgment passed by the trial

court accepting the plea bargaining, etc.

            3.       The above O.P filed under Article 227 of the Constitution

of India was admitted by this Court on 11.1.2016 and this Court had

                                  
passed interim order dated 11.1.2016 ordering that the enforcement of

the impugned order passed by the trial court will stand suspended and

the said interim order has been extended from time to time.

            4.       Ext.P-1 is the complaint preferred by the 2nd respondent

arraying the petitioner as accused for the offence under Sec.138 of

the N.I. Act, which led to the institution of C.C.No.101/2013 on the

file of the Judicial First Class Magistrate Court, Erattupetta. The

allegation in the complaint is that the petitioner had borrowed a sum of

Rs.5 lakhs from the complainant on 14.12.2012 for purchasing

building materials and had promised to repay the amount borrowed on

23.12.2012, that in discharge of the said liability the petitioner had

issued cheque dated 23.12.2012 for Rs.5 lakhs drawn on the State Bank

of Travancore in favour of the complainant, which when presented

resulted in dishonour for insufficiency of funds.           Statutory demand

notice dated 4.1.2013, intimating about the dishonour and calling upon

the accused to pay the cheque amount, was duly sent by registered post

to the petitioner, who had received the notice on 11.1.2013 and that no

amount was paid, etc. The petitioner would contend that the allegations

in Ext.P-1 complaint are incorrect and that the 2nd respondent is a

professional money lender and that the petitioner had borrowed Rs.3

lakhs from R-2 and repaid Rs.2.5 lakhs and the petitioner has assured to

repay the balance amount with interest without much delay and that

the dishonoured cheque in question has been misused by the

complainant and it had been given by the petitioner earlier to the

complainant as a blank signed cheque as security towards the

transaction, etc.

              5.     It has also been averred by the petitioner in para 4 of the

Original Petition that when he received summons on Ext.P-1 complaint,

he was afraid of the ordeal of criminal trial and he contacted the 2nd

respondent to get rid of the mental agony of being an accused and the

petitioner was constrained to yield to the demands of the 2nd respondent

to compromise the matter and that the 2nd respondent has directed the

petitioner to engage a counsel and the petitioner and the 2nd respondent

met the counsel, who instructed to avail the opportunity of plea

bargaining and that having found no other alternate remedy to escape

from the clutches of the 2nd respondent, the petitioner agreed to put his

signatures on the application for plea bargaining and that the 2nd

respondent had agreed to give 5 months' time to the petitioner to pay

Rs.4.5 lakhs and it is on this basis that the petitioner had proceeded

further with the filing of the plea bargaining application, etc. It is

        further averred that Ext.P-2 mutually satisfactory disposition statement

was signed and filed by the parties on 12.11.2014 and without

conducting in camera proceedings of the accused in the absence of the

complainant as mandated under Sec.265B(4), the statement of the

mutually satisfactory disposition was drawn up by the parties and that

the trial court has not even drawn up the statutory report of such

mutually satisfactory disposition in violation of the mandatory

provisions in Sec.265D of the Cr.P.C. Further that the disposal of the

case in terms of Sec.265E of the Cr.P.C was made on the same day on

12.11.2014.           After passing of Ext.P-3 order dated 12.11.2014, the

petitioner has tried his level best to raise the amount within the

stipulated time and due to extreme financial difficulties he could not

raise the amount and on consulting with his Advocate, he was advised

to file the present O.P to challenge the legality of the impugned Ext.P-3

order, etc.

            6.       Notice to R-2 has been issued by speed post and R-2 has

appeared through Sri.Sreelal N.Warrier, learned counsel.             The 2nd

respondent has also filed a counter affidavit dated 27.2.2016 in the

matter, wherein it is contended that the plea bargaining application and

the mutually satisfactory disposition, etc., were fully voluntarily entered

into by the petitioner and that no prejudice has been caused to him and



that the petitioner has been acting dishonestly in manipulation of the

complaint and to deceive the complainant by such abuse of the process

of the court and that the petitioner is working as a Branch Manager of a

Government of Kerala Financial Institution (KSFE) and drawing a

monthly salary of more than Rs.1 lakh.            That evidence of the

complainant was over in the trial by the examination and cross-

examination of the complainant as PW-1 and marking and proving of

documents as per Exts.P-1 to P-6.         The case was then posted for

recording of the statement under Sec.313 of the Cr.P.C and the accused

was directed to appear before the trial court and that at that stage, the

accused has approached with the desire for plea bargaining and that

the application for plea bargaining as per Ext.P-2 dated 12.11.2014 has

been filed properly and that the Advocate appearing for the petitioner

before the trial court is an experienced Advocate, who has filed such

application even before in other cases and has secured such similar

orders and that a Civil Suit, O.S.No.723/2013 was filed by the complainant

herein before the Munsiff Court, Erattupetta, for recovery of the amount

due to the complainant from the petitioner herein in respect of the same

subject matter and the civil court had ordered for attachment of the

property even before judgment and when the accused had approached

the complainant the latter had agreed for plea bargaining process and

                                   

had even granted time for payment of compensation amount, which is

lower than the cheque amount and had also agreed to withdraw the

above said civil suit as a condition for plea bargaining. Thus the civil

suit was also withdrawn and the interim attachment was also thus

lifted, which was also informed to the other side and that the petitioner

had enjoyed all the benefits of settlement and had got more than 5

months to pay the compensation and even obtained an order for lifting

of the attachment, etc.           That present attempt of the petitioner is

fraudulent and has been done only to deceive the 2nd respondent. That

due to the above process, the complainant was even constrained to

withdraw the civil suit, etc. The main contention raised by the 2nd

respondent is that no prejudice has been caused to the accused and that

there has been no miscarriage of justice in the instant case and the

petitioner has not satisfied this Court that the impugned order has

resulted in grave miscarriage of justice as contemplated in Sec.465 of

the Cr.P.C and that the Original Petition is liable to be dismissed, etc.

            7.       During the course of hearing, both sides have reiterated

their respective submissions. Sri.Shaju Purushothaman, learned counsel

appearing for the petitioner, has also placed reliance on the aforestated

judgments of this Court and had also pointed out the factual details for

                                      
raising his contentions regarding violation of Sec.265B(4) as well as

Sec.265D of the Cr.P.C. He had also contended that in view of the

specific provisions contained in Sec.265J in Chapter XXIA of the Cr.P.C,

the provisions contained in Chapter XXIA will have overriding effect

over other provisions of the Cr.P.C and if the provisions contained in

Chapter XXIA of the Cr.P.C are in any manner inconsistent with any of

the other provisions of the Code, then the former will prevail over the

latter and that therefore the contention of the 2nd respondent based on

Sec.465 in Chapter XXXV of the Cr.P.C is devoid of any merit. Further

that in view of the grave illegality and impropriety committed by the

trial court, the plea bargaining process itself would be in flagrant

violation of the fundamental rights guaranteed to the petitioner under

Article 20(3) as well as Article 21 of the Constitution of India. And that

such infringement of the constitutionally guaranteed fundamental

rights arising out of conviction of the petitioner would be depriving his

personal liberty without following the due process of law and would be

a serious deprivation of his fundamental rights.              Therefore the

contention that no prejudice or violation of justice has been caused in

the instant case is bereft of any merit.

            8.       Sri.Sreelal Warrier, learned counsel appearing for R-2,

made his submissions based on the pleadings in the counter affidavit of



his party and had also strongly urged that the petitioner has not been

able to show any violation of justice in the instant case and that

therefore the test to be adopted by this Court in deciding whether or not

to set aside the impugned orders/judgments of the trial courts is as to

whether the impugned order has resulted in serious failure of justice as

enshrined in Sec.465 of the Cr.P.C and due to the absence of such

failure of justice, the petition is only to be dismissed.    Further the

learned counsel appearing for R-2 would vehemently contend that the

aforestated judgments of the learned Single Judge of this Court relied on

by the petitioner do not lay down the correct position of law. The

findings made by the learned Single Judge in the judgment in Joseph P.J.

v. State of Kerala & anr. reported in 2015 (5) KHC 586, by placing

reliance on the judgment of the Apex Court in Girraj Prasad Meena v.

State of Rajasthan & ors. reported in (2014) 13 SCC 674 are misplaced

inasmuch as the facts of the case dealt with by the Apex Court in Girraj

Prasad Meena's case (supra) do not relate to one involving plea

bargaining under Chapter XXIA of the Cr.P.C but is in relation to the

acceptance of plea of guilt made by the accused in the course of a

regular trial, etc.

                                     

            9.       Heard Sri.Shaju Purushothaman, learned counsel appearing

for the petitioner, Sri.N.Sreelal Warrier, learned counsel appearing for

R-2 and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1

State.

            10.      It is the common ground that evidence in this case had

commenced and the chief examination of the complainant as PW-1 was

over and prosecution had also marked Exts.P-1 to P-6 documents and

that the case was posted for recording of the statement of the accused

under Sec.313, etc. The records would show that Ext.P-2(4) application

for plea bargaining was filed by the petitioner-accused under Sec.256A

of the Cr.P.C.            Ext.P-2(4) application is dated 12.11.2011. In the

original of that document in the lower court records also appears the

same date. Obviously the date shown therein is a mistake. Ext.P-1

complaint has been filed only on 26.2.2013. Presumably it appears that

instead the correct date 12.11.2014, it has been wrongly shown there

as 12.11.2011. Ext.P-2(3) affidavit does not even contain any date.

Obviously these mistakes in Ext.P-2(4) application and Ext.P-2(3)

affidavit are due to omissions on the part of the Advocate for the

accused who appeared before the trial court as those case papers are that

of the petitioner. But certainly the trial court could have been little

careful while dealing with such crucial applications as the one for plea

                                
bargaining under Chapter XXIA of the Cr.P.C., and it should have been

made sure that such mistakes are rectified as these records are very

crucial when the matters are contested later. Ext.P-2(1) appears to be a

statement of mutually satisfactory disposition arrived at between the

parties and signed by the complainant and accused on 12.11.2014 and

this appears to be filed purportedly under Sec.265C of the Cr.P.C.

Ext.P-2(2)           is stated to be the report of the mutually satisfactory

disposition in terms of Sec.265D of the Act. It bears the signatures of

the complainant and the accused and also that of the presiding officer

of the trial court but strangely the date portion is completely left blank.

None of the parties have even shown the date even along with their

signatures. Ext.P-3 is the order passed by the trial court accepting plea

bargaining and finding the accused guilty and sentencing him to pay

the compensation of Rs.4.50 lakhs under Sec.357 (3) of the Cr.P.C.,

within 5 months and in default thereof to suffer simple imprisonment

for 6 months, etc. There is no substantive prison sentence of at least

imprisonment for a day till the rising of the court or sentence to pay

fine, which could have been ordered to be paid to the complainant as

compensation as per Sec.357(1)(b) of the Cr.P.C. In the absence of

either of such a sentence, it was illegal on the part of trial court to have

only "sentenced to pay compensation to the complainant along with a

default sentence clause of 6 months' simple imprisonment". After the

disposal of the case as per Sec.265D, the court has to deliver its

judgment in terms of Sec.265E in the open court as can be seen from a

bare reading of Sec.265F of the Cr.P.C. Therefore, after the disposal of

the case, what is to be delivered by the trial court is "judgment" and not

an order as styled in Ext.P-3. The lower court records do not disclose

that the trial court had examined the accused in in camera in the

absence of the complainant as envisaged under sub-sec.(4) of Sec.265B

of the Act in order to be fully satisfied that the accused had entered into

the plea bargaining process fully voluntarily. The petitioner has clearly

averred that such in camera proceedings have never been conducted

by the trial court to ascertain the voluntariness of the accused as

mandated in Sec.265B(4) of the Cr.P.C. The said factual averment has

not been seriously denied by the 2nd respondent. On a perusal of the

lower court records, it is seen that there are no documents or records

maintained by the trial court to evidence such holding of in camera

examination of the accused, without the presence of the complainant

and his counsel. Therefore, on facts, it is only to be held that the trial

court has not conducted such in camera examination of the accused in

                             


the absence of the complainant in order to ascertain the voluntariness

of the accused as envisaged in Sec.265B(4) of the Cr.P.C. Moreover,

nowhere is it stated either in Ext.P-2(2) or in Ext.P-3 order by the trial

court that in camera examination of the accused in the absence of the

complainant was duly conducted in terms of Sec.265B(4) of the Cr.P.C.

            11.      This Court in the aforestated 3 judgments reported in

Joseph v. State of Kerala reported in 2015 (4) KLT 364, Joseph P.J v. State

of Kerala & anr. reported in 2015 (5) KHC 586 and Bala Dandapani v.

State of Kerala reported in 2016 (1) KLT 117 has also dealt with a

similar situation wherein the trial court had dealt with the plea

bargaining in complaints for offence under Sec.138 of the N.I.Act and

the trial court had not conducted any in camera examination of the

accused in the absence of the complainant to ascertain the voluntariness

of the accused in undergoing the plea bargaining process as envisaged

in Sec.265B(4) of the Cr.P.C. This Court held that the said provision in

Sec.265B has been inserted in the Cr.P.C to regulate the plea bargaining

so that there is no compulsion or insistence from the part of the

complainant or the defacto complainant as the case may be, on the

accused to force a settlement and it is in order to avoid the possibility of

any such compulsion or pressure tactics from the part of the

                                

complainant or the defacto complainant as the case may be, the said

provision has been incorporated. In the said case also, the impugned

order passed by the trial court convicting and sentencing the accused

therein had not specifically stated as to whether in camera examination

of the accused was conducted therein. Accordingly, it was held in those

reported judgments that the provisions under Sec.265B(4) are

mandatory and breach of that provision by the trial court would be a

gross illegality which would warrant quashing of the impugned order,

etc. In those cases also, the trial court appears to have imposed only

compensation instead of awarding a fine. This Court has also held that

the procedure was also not correct. That in such cases, it is for the trial

court to impose a sentence of fine and then to direct the fine amount so

realised should be disbursed to the complainant as compensation as per

Sec.357(1)(b) of the Cr.P.C. It was also held by this Court that in view

of the provisions contained in Sec.265E(d) of the Cr.P.C if the offence

involved is the one, which is not covered either by clauses (b) or (c) of

the said section, then it is provided that the trial court may impose on

the accused one fourth of the sentence with imprisonment which may

extend to 2 years or with fine, as the case may be, for such offence and

that therefore the maximum sentence for offence under Sec.138 of the

                                 


N.I. Act would extend up to 2 years.           The provision contained in

Sec.265E(d) conceives that the trial court should consider the

imposition of one fourth of the sentence provided or extendable as the

case may be and therefore this Court has held in the judgment in Joseph

P.J v. State of Kerala & anr. reported in 2015 (5) KHC 586 that as Sec.138

of the N.I.Act provides for punishment with imprisonment which may

extend up to 2 years or with fine, which may extend to twice the

amount of the cheque, etc., and that so the provision in Sec.265E(d)

conceives that the trial court should consider imposing atleast 1/4th of

such punishment of prison sentence provided or extendable, etc., and

that therefore the trial court should have considered the substantive

sentence of simple imprisonment for 6 months (1/4th of 2 years) and

could have imposed only one half of the cheque amount ordered as fine

in that case, etc.      12. Since elaborate submissions have been made by

the learned counsel appearing for R-2 complainant contesting the

correctness of the view taken by the learned Single Judge in the aforesaid

reported judgments, this Court is inclined to make an in-depth examination of

the matter. One of the crucial issues to be determined is as to whether

the provisions contained in Secs.265B and 265D in Chapter XXIA

of the Cr.P.C are mandatory and whether breach of such procedural

                                

provisions would result in gross illegality warranting setting aside of the

impugned judgment of the trial court accepting the plea bargaining

process, etc.          Since the facets of plea bargaining are intimately and

inextricably connected to golden right guaranteed to an accused to remain

silent as well as the right of an accused in a criminal case against self

incrimination as enshrined in Article 20(3) of the Constitution of India, it

would be appropriate to deal with some of the important aspects of the

said fundamental right guaranteed under Clause (3) of Article 20 of the

Constitution of India. Clause (3) of Article 20 in Part III of the Constitution

of India declares that no person accused of an offence shall be compelled

to be a witness against himself and this provision embodies the principle of

protection against compulsion of self-incrimination which is one of the

fundamental canons of Anglo-Saxon system of criminal jurisprudence and

which has been adopted by the U.S system and incorporated in the U.S

Federal Constitution. The 5th Amendment of the U.S Constitution provides

that no person shall be compelled in any case to be a witness against

himself.           This has also been recognized in criminal administration of

justice in our country by incorporating various statutory provisions as in

Sec.342 of the Code of Criminal Procedure, 1898 [corresponding to

Sec.313 of the Code of Criminal Procedure, 1973], Secs.5 & 6 of the Indian

Oaths Act, 1969, Sec.161(2) of the Code of Criminal Procedure, 1973

                                

[corresponding to Sec.161(2) of the Code of Criminal Procedure, 1898],

etc. But the Constitution of India raises the rule against self- incrimination

to the status of a constitutional prohibition engrafted under

fundamental rights contained in Part III thereof.                   The said

constitutionally guaranteed right in Article 20(3) has broadly 3

components, viz., (1) of a right pertaining to a person accused of an

offence, (2) protection against such personal compulsion to be a witness

and (3) protection to that person against such compulsion resulting in

his giving evidence against himself, etc.        In the celebrated case in

Nandini Satpathy v. P.L.Dani & anr., reported in 1978 (2) SCC 424, the

Apex Court was called upon to consider the legal basis of the police

practice of interrogating suspects in view of the constitutional and legal

safeguard available to a person against self-incrimination. In the above

case, Smt.Nandini Satpathy, who was a former Chief Minister of Orissa,

was a suspect and was not an accused and was examined at the Police

Station in connection with investigation of the charges of corruption

against her and on her refusal to answer the questions put to her, she

was charged with an offence under Sec.179 of the IPC.                  It was

contended on her behalf that refusal to answer police interrogations

was justified on grounds of Article 20(3) of the Constitution of India

and Sec.161(2) of the Cr.P.C. Their Lordships of the Supreme Court,



speaking through Justice V.R.Krishna Iyer, have taken the categoric

view that the area covered by Article 20(3) of the Constitution of India

and Sec.161(2) of the Cr.P.C is substantially the same and that the

expression "any person supposed to be acquainted with the facts and

circumstances of the case" contained in Sec.161(2) of the Cr.P.C included

an accused person who fills that role because the police suppose him to

have committed the crime and must, therefore, be familiar with the

facts. In view of the facts thereof, the Apex Court proceeded to hold

that the expression "accused of an offence" occurring in Article 20(3) of

the Constitution of India, no doubt includes a person formally brought

into police diary as an accused person but it also includes a suspect.

Adverting to several of the earlier judgments of the Apex Court as in

Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, reported in AIR 1961 SC

29, State of Bombay v. Kathi Kalu Oghad, reported in AIR 1961 SC 1808,

Ramesh Chandra Mehta v. State of West Bengal, reported in AIR 1970 SC

940, etc., it was held in Nandini Satpathy 's case (supra) that the court

did not agree with the "restrictive view" of the expression "accused of an

offence" taken therein and extended the application of Article 20(3) to

police interrogations.      In the yet another subsequent celebrated

judgment in Selvi & ors. v. State of Karnataka, reported in (2010) 7 SCC



263 = AIR 2010 SC 1974, the constitutional right under Article 20(3)

has taken further great strides and relying upon the international

developments and international Jurisprudence, the Apex Court held that

in voluntary administration of either narcoanalysis technique,

polygraph examination or the Brain Electrical Activation Profile (BEAP)

Test, etc., for the purpose of improving investigation efforts in criminal

cases would fall under Article 20(3) of the Constitution of India.

Rendering the said judgment on behalf of Three-Judge Bench, the

Honourable Chief Justice of India held that in the considered opinion of

their Lordships, the compulsory administration of the impugned

techniques violates the 'right against self-incrimination' and this is

because the underlying rationale of the said right is to ensure reliability

as well as voluntariness of statements that are admitted as evidence as

the court has recognised that the protective scope of Article 20(3)

extends to the investigative stage in criminal cases and when read with

Section 161(2) of the Code of Criminal Procedure, 1973 it protects

accused persons, suspects as well as witnesses who are examined

during an investigation. That the test results cannot be admitted in

evidence if they have been obtained through the use of compulsion and

that Article 20(3) protects an individual's choice between speaking and



remaining silent, irrespective as to whether the subsequent testimony

proves to be inculpatory or exculpatory and Article 20(3) aims to

prevent the forcible "conveyance of personal knowledge that is relevant to

the facts in issue" and the results obtained from each of the impugned

tests bear a "testimonial" character and they cannot be categorised as

material evidence. But it was also clarified in the judgment in Selvi's

case (supra) that Article 20(3) does not bar voluntary administered tests

and their results are admissible in evidence provided they have been

conducted strictly according to the guidelines laid down by the National

Human Rights Commission. After the 1950's and 1960's, the two land

mark judgments of the Apex Court on these aspects are those referred

in Nandini Satpathy v. P.L.Dani & anr., reported in 1978 (2) SCC 424

(supra) and Selvi & ors. v. State of Karnataka, reported in (2010) 7 SCC

263(supra).

            13.      The historical origins of the "right against self-incrimination"

has been dealt with succinctly in paras 92 to 101 of the SCC report in

the judgment in Selvi's case (supra). It has been observed that very

followers have identified the origins of this right in the medieval period

and that it was a response to the procedure followed by English Judicial

bodies such as the Star Chamber and the High Commissions which

required the defendants and suspects to take ex officio oaths.                 That

                             

those bodies mainly decided cases involving religious non-conformism

in a protestant dominated society, as well as offences like treason and

sedition and under an ex officio oath, the defendant was required to

answer all questions posed by the Judges and prosecutors during the

trial and the failure to do so would attract punishments that often

involved physical torture.      It was the resistance to this practice of

compelling the accused to speak which led to demands for a "right to

silence" for an accused.       The use of the ex officio oath by the

ecclesiastical courts in medieval England had come under criticism

from time to time and the most prominent cause for discontentment

came with its use in the Star Chamber and the High Commissions. In

the sedition trial of John Lilburne, who was a vocal critic of the then

monarch in 1637, Lilburne had refused to answer questions put to him

on the ground that he had not been informed about the contents of the

written complaint against him, John Lilburne went on to vehemently

oppose the use of ex official oaths and the Parliament of the time

relented by abolishing the Star Chamber and the High Commission in

1641 and that event is regarded as the most important landmark in the

evolution of the "right to silence". Later in 1648, a Special Committee of

Parliament conducted an investigation into the loyalty of Members

                                             

whose opinions were offensive to the army leaders and the Committee's

inquisitional conduct and its requirement that witnesses take an oath to

tell the truth provoked opponents to condemn what they regarded as a

revival of the Star Chamber tactics.                                  John Lilburne had once again

raised up the issue and he invoked the spirit of the Magna Carta as well

as 1628 petition of right to argue and contended that even after

common law indictment and without oath, he did not have to answer

questions against or concerning himself and he drew a connection

between the right against self-incrimination and the guarantee of a fair

trial by invoking the idea of "due process of law" which had been stated

in the Magna Carta. Speaking for the Bench in Nandini Satpathy's case

(supra) V.R.Krishna Iyer (J) has held as follows: (see SCC report p. 442

para 34).

                     "34. ..................... And Article 20(3) is a human article, a guarantee of dignity
            and integrity and of inviolability of the person and refusal to convert an adversary
            system into an inquisitorial scheme in the antagonistic ante-chamber of a police
            station. And in the long run, that investigation is best which uses stratagems least, that
            policeman deserves respect who gives his fists rest and his wits restlessness. The police
            are part of us and must rise in people's esteem through firm and friendly, not foul and
            sneaky strategy."

Further in Nandini's case (supra) reliance was also placed on the

judgment of the U.S Supreme Court in Brown v. Walker reported in 40

L.Ed 819 = 161 US 591 (1896), which was later relied on by the U.S

Supreme Court in Miranda v. Arizona [16 L.Ed 2d 694 = 384 US 436

                                           
(1965)] and in that regard, it will be pertinent to refer to para 31 of the

SCC report in Nandini's case (supra) p.p.438-439 para 31, which reads

as follows:

                     "31. ... `The maxim nemo tenetur seipsum accusare had its origin in a protest against
            the inquisitorial and manifestly unjust methods of interrogating accused persons, which have
            long obtained in the continental system, and, until the expulsion of the Stuarts from the British
            throne in 1688, and the erection of additional barriers for the protection of the people against
            the exercise of arbitrary power, were not uncommon even in England. While the admissions or
            confessions of the prisoner, when voluntarily and freely made, have always ranked high in the
            scale of incriminating evidence, if an accused person be asked to explain his apparent
            connection with a crime under investigation, the ease with which the questions put to him may
            assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if
            he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions,
            which is so painfully evident in many of the earlier State trials, notably in those of Sir Nicholas
            Throckmorton, and Udal, the Puritan Minister, made the system so odious as to give rise to a
            demand for its total abolition. The change in the English criminal procedure in that particular
            seems to be founded upon no statute and no judicial       opinion, but upon a general and silent
            acquiescence of the courts in a popular demand. But, however adopted, it has become firmly
            embedded in English, as well as in American jurisprudence. So deeply did the inequities of the
            ancient system impress themselves upon the minds of the American colonists that the States,
            with one accord, made a denial of the right to question an accused person a part of their
            fundamental law, so that a maxim, which in England was a mere rule of evidence, became
            clothed in this country with the impregnability of a constitutional enactment.' ........"

The Apex Court has conclusively held in Selvi's case (supra) that the

right against "self-incrimination" is now viewed as an essential safeguard

in criminal procedure and its underlying rationale broadly corresponds

with two objectives.; firstly, that of ensuring reliability of the statements

made by an accused and secondly, ensuring that such statements are

made voluntarily. That it is quite possible that a person suspected or

accused of a crime may have been compelled to testify through methods

involving coercion, threats or inducements during the investigative

                           


stage and when such a person is compelled to testify on his/her own

behalf, there is a higher likelihood of such testimony being false and

false testimony is undesirable since it impedes the integrity of the trial

and the subsequent verdict.       That the purpose of the "rule against

involuntary confessions" is to ensure that the testimony considered during

the trial is reliable and the premise is that involuntary statements are

more likely to mislead the Judge and the prosecutor thereby resulting in

a miscarriage of justice, etc.        Further that concerns about the

"voluntariness" of statements allow a more comprehensive account of

this right and if voluntary statements were readily given weightage

during trial, investigators would have a strong incentive to compel such

statements often through methods involving coercion, threats,

inducement or deception and even if such involuntary statements are

proved to be true, the law should not incentivise the use of interrogation

tactics that violate the dignity and bodily integrity of the person being

examined. In this sense, "the right against self-incrimination" is a vital

safeguard against torture and other "third-degree methods" that could be

used to elicit information and it serves as a check on police behaviour

during the course of investigation and the exclusion of compelled

testimony is important, otherwise the investigators will be more inclined



to extract information through such compulsion as a matter of course.

The frequent reliance on such "short cuts" will compromise the

diligence required for conducting meaningful investigations. During

the trial stage, the onus is on the prosecution to prove the charges

levelled against the defendant and the "right against self-incrimination" is

a vital protection to ensure that the prosecution discharges the said

onus. Lord Hailsham of St. Marylebone has observed in Wong Kam-

ming v. R reported in (1979) 1 AII ER 939 (PC) = 1980 AC 247 that any

civilised system of criminal jurisprudence must accord to the judiciary

some means of excluding confessions or admissions obtained by

improper methods and this is not only because of the potential

unreliability of such statements, but also, and perhaps mainly, because

in a civilised society it is vital that persons in custody or charged with

offences should not be subjected to ill treatment or improper pressure in

order to extract confessions and it is therefore of very great

importance that the courts should continue to insist that before

extra-judicial statements can be admitted in evidence the

prosecution must be made to prove beyond reasonable doubt that the

statement was not obtained in a manner which should be reprobated

and was therefore in the truest sense voluntary, etc. Explaining the

Fifth Amendment in the U.S Constitution, in Murphy v. Waterfront

Commission of New York Harbor, the U.S Supreme Court has observed as

follows in 378 US 52 (1963) p.55 = 12 L.Ed 2d 678 pp. 681-682.

                     "... It reflects many of our fundamental values and most noble aspirations: our
            unwillingness to subject those suspected of crime to the cruel trilemma of self-
            accusation, perjury or contempt; our preference for an accusatorial rather than an
            inquisitorial system of criminal justice; our fear that self-incriminating statements will
            be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a
            fair State-individual balance by requiring the Government to leave the individual
            alone until good cause is shown for disturbing him and by requiring the Government
            in its contest with the individual to shoulder the entire load'; our respect for the
            inviolability of the human personality and of the right of each individual `to a private
            enclave where he may lead a private life'; our distrust of self-deprecatory statements;
            and our realisation that the privilege, while sometimes `a shelter to the guilty', is often
            `a protection to the innocent'."

Their Lordships of the Supreme Court in Nandini's case (supra) has

placed heavy reliance on the judgment of the U.S. Supreme Court in

Miranda v. Arizona reported in (1965) 384 US 436, pp. 706-07, which

reads as follows:

                     "...... the prosecution may not use statements, whether exculpatory or
            inculpatory, stemming from custodial interrogation of the defendant unless it
            demonstrates the use of procedural safeguards effective to secure the privilege against
            self-incrimination. By custodial interrogation, we mean questioning initiated by law
            enforcement officers after a person has been taken into custody or otherwise deprived
            of his freedom of action in any significant way. As for the procedural safeguards to be
            employed, unless other fully effective means are devised to inform accused persons of
            their right of silence and to assure a continuous opportunity to exercise it, the
            following measures are required. Prior to any questioning, the person must be warned
            that he has a right to remain silent, that any statement he does make may be used as
            evidence against him, and that he has a right to the presence of an attorney, either
            retained or appointed. The defendant may waive effectuation of these rights, provided
            the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates
            in any manner and at any stage of the process that he wishes to consult with an
            attorney before speaking there can be no questioning. Likewise, if the individual is
            alone and indicates in any manner that he does not wish to be interrogated, the police

                                  

            may not question him. The mere fact that he may have answered some questions or
            volunteered some statements on his own does not deprive him of the right to refrain
            from answering any further inquiries until he has consulted with an attorney and
            thereafter consents to be questioned."

In the celebrated case of the U.S Supreme Court in Miranda's case

(supra), majority opinion (by Earl Warren, C.J) has laid down that

custodial statements chould not be used as evidence unless the police

officers had administered warnings about the right of the accused to

remain silent and the judgment has also recognised the right to consult

a lawyer prior to and during the course of custodial interrogations and

the underlying rationale for this view is that only if a person has

"knowingly and intelligently" waived of these rights after receiving a

warning that the statement made thereafter can be admitted as

evidence. These safeguards were designed by the U.S Supreme Court to

mitigate the disadvantages faced by suspect in a custodial environment

and emphasis was placed on the ability of the person being questioned

to fully comprehend and understand the content of the stipulated

warning. Majority opinion also explained the significance of having a

counsel present during a custodial interrogation. It would be relevant

to note the following paragraphs in the celebrated case in Miranda's

case (supra). [see report in 384 US 436 (1965) pp. 457-58].

                     "In these cases, we might not find the defendant's statements to have been
            involuntary in traditional terms. Our concern for adequate safeguards to protect the
            precious Fifth Amendment right is, of course, not lessened in the slightest. In each of

                                                 

            the cases, the defendant was thrust into an unfamiliar atmosphere and run through
            menacing police interrogation procedures. ........ It is obvious that such an
            interrogation environment is created for no purpose other than to subjugate the
            individual to the will of his examiner. This atmosphere carries its own badge of
            intimidation. To be sure, this is not physical intimidation, but it is equally destructive of
            human dignity. (Professor Sutherland, Crime and Confession.) The current practice of
            incommunicado interrogation is at odds with one of our Nation's most cherished
            principles--that the individual may not be compelled to incriminate himself. Unless
            adequate protective devices are employed to dispel the compulsion inherent in
            custodial surroundings, no statement obtained from the defendant can truly be the
            product of his free choice."

[see report in 384 US 436 (1965) pp. 469-70]

                     "The circumstances surrounding in-custody interrogation can operate very
            quickly to overbear the will of one merely made aware of his privilege by his
            interrogators. Therefore, the right to have counsel present at the interrogation is
            indispensable to the protection of the Fifth Amendment privilege under the system we
            delineate today. Our aim is to assure that the individual's right to choose between
            silence and speech remains unfettered throughout the interrogation process. A once-
            stated warning, delivered by those who will conduct the interrogation, cannot itself
            suffice to that end among those who most require knowledge of their rights. A mere
            warning given by the interrogators is not alone sufficient to accomplish that end.
            Prosecutors themselves claim that the admonishment of the right to remain silent
            without more `will benefit only the recidivist and the professional'. (Brief for the
            National District Attorneys Association as amicus curiae, p. 14.) Even preliminary
            advice given to the accused by his own attorney can be swiftly overcome by the secret
            interrogation process. (Cited from Escobedo v. Illinois, US at p. 485....) Thus, the need
            for counsel to protect the Fifth Amendment privilege comprehends not merely a right
            to consult with counsel prior to questioning, but also to have counsel present during
            any questioning if the defendant so desires."

The majority decision in Miranda's case (supra) was not a sudden

development in the US constitutional law and the scope of the privilege

against self-incrimination had been progressively expanded in several

prior decisions and the notable feature was the recognition of the

interrelationship between the Fifth Amendment and the Fourteenth

Amendment's guarantee that the Government must observe the "due

                            


process of law" as well as the Fourth Amendment's protection against

"unreasonable search and seizure". Their Lordships of the Supreme Court

in para 119 in Selvi's case (supra), have observed that, while it is not

necessary for us to survey these decisions, it will suffice to say that after

Miranda's case (supra) administering a warning about a person's right

to silence during custodial interrogations as well as obtaining a

voluntary waiver of the prescribed rights has become a ubiquitous feature

in the US criminal justice system and in the absence of such a warning

and voluntary waiver, there is a presumption of compulsion with regard

to the custodial statements thereby rendering them inadmissible as

evidence, etc.

            14.      Suffice to say, it would be in the backdrop and context of

constitutional right guaranteed "right to silence" and "right against self-

incrimination" contained in Article 20(3) of the Constitution that the

present issues arising out of voluntariness and plea bargaining process

should be examined and analysed.

            U.S Supreme Court judgments on voluntariness in plea

bargaining process.

            The judgment of the U.S Federal Supreme Court in William J.

McCarthy v. United States, reported in 394 US 459 = 22 L Ed 2d 418 is

one of the important judgments on this point.                In that case in a

                     

prosecution for tax evasion in the U.S District Court, the court accepted

the defendant's guilty plea after the defendant's counsel stated that he

had advised the defendant of the consequences of his plea, and after the

defendant, in response to the court's questions expressed his desire to

plead guilty, acknowledged his understanding of the consequences of

such plea as explained by the court with regard to the waiver of a jury

trial and the punishment involved, and stated that his plea had not been

induced by any threats or promises.         After such conviction, the

defendant appealed to the U.S Court of Appeals, wherein he has

contended that his guilty plea should have been set aside because of the

trial court's failure to comply with Rule 11 of the Federal Rules of

Criminal Procedure, which provides that the court shall not accept a

guilty plea without first addressing the defendant personally and

determining that the plea was made voluntarily with an understanding

of the nature of the charge and the consequences of the plea. The Court

of appeals affirmed the conviction holding that the District Court

judgment had complied with the said rule.        Aggrieved thereby the

defendant had sought for a Writ of Certiorari before the US Supreme

Court and the US Supreme Court reversed the impugned judgment and

remanded the matter. In the leading opinion speaking on behalf of 8

                                  

members of the Court, Chief Justice Warren, has held that firstly, under

Rule 11, the trial court has an obligation to personally inquire whether

the defendant understood the nature of the charge against him, the Rule

being designed to assist the district judge in making the constitutionally

required determination that the guilty plea was truly voluntary, and to

produce a complete record at the time of the plea of the factors relevant

to such voluntariness determination.      Secondly, any noncompliance

with the Rule constituted reversible error, entitling the defendant to

plead anew and thirdly the decision was made pursuant to the U.S

Supreme Court's supervisory power over the lower federal courts. It

has been categorically held therein that the defendant who enters guilty

plea simultaneously waives several constitutional rights, including his

privilege against compulsory self-incrimination, his right to trial by

jury, and his right to confront his accusers. For this waiver to be valid

under the due process clause it must be an intentional relinquishment

or abandonment of a known right or privilege. Rule 11 of Federal Rules

of Criminal Procedure, which governed the field, stipulated that the

court shall not accept a guilty plea without first addressing the

defendant personally and determining that the plea is made voluntarily

with an understanding of the nature of the charge and consequences of

                          


the plea and that judgment shall not be entered upon a guilty plea

unless the court is satisfied that there is a factual basis for the plea, and

if this is not complied with by the District Court in a federal criminal

prosecution then the defendant is entitled to plead anew , where the

trial court did not inquire of the defendant personally whether he

understood the nature and essential elements of the charge against him,

notwithstanding that the defendant's attorney stated hat he had advised

the defendant of the consequences of his plea, or that the defendant, in

response to the court's questions, expressed his desire to plead guilty,

acknowledged his understanding of the consequences of such plea as

explained by the court with regard to the waiver of a jury trial and the

punishment involved, and stated that his plea had not been induced by

any threats or promises. Majority opinion of the 8 judges of the U.S

Supreme Court held therein that the Court would agree with the

petitioner that the District Judge did not comply with Rule 11 in the

facts of that case and in reversing the court of appeals it was held that

the defendant is entitled to plead anew, if the District Court accepted his

guilty plea without fully adhering to the procedure provided for in Rule

11.        During the early arguments in that case the counsel for the

Government had repeatedly conceded that the Judge did not personally

                              

inquire whether the petitioner understood the nature of the charge and

that the subject on which the District Judge did not directly address the

defendant, which is raised, is on the question of defendant's

understanding of the charges. Nevertheless, the Government argued

that since the petitioner has stated his desire to plead guilty, the District

Court "could properly assume that the petitioner was entering that plea with

a complete understanding of the charge against him". This contention of the

prosecution was overruled as untenable by the U.S Supreme Court by

holding that such argument cannot be accepted, which completely

ignores the two purposes of Rule 11 and the reasons for its recent

amendment. First of which is that although the procedure embodied in

Rule 11 has not been held to be constitutionally mandated, it is designed

to assist the District Judge in making the constitutionally required

determination that a defendant's guilty plea is truly voluntary. Secondly

the Rule is intended to produce a complete record at the time the plea is

entered of the factors relevant to this voluntariness determination.

Thus the more meticulously the Rule is adhered to, the more it tends to

discourage, or at least to enable more expeditious disposition of, the

numerous and often frivolous post-conviction attacks on the

constitutional validity of guilty pleas. It was further held therein that by

                             

personally interrogating the defendant, not only will the judge be better

able to ascertain the plea's voluntariness, but he also will develop a

more complete record to support his determination in a subsequent post

conviction attack. These two purposes were held to have their genesis

in the very nature of guilty plea, in the context of the constitutional

right of the defendant accused of a criminal offence to remain silent. It

was also held therein that a defendant who enters guilty plea

simultaneously waives several constitutional rights, including his

privilege against compulsory self-incrimination, his right to trial by

jury, and his right to confront his accusers. For this waiver to be valid

under the due process clause it must be an intentional relinquishment

or abandonment of a known right or privilege.           Consequently it was

also held that if a defendant's plea is not voluntary and it has been

obtained in violation of the due process and is therefore void and

moreover a guilty plea is an admission of all the elements of a formal criminal

charge, it cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts. It was also clearly held that

voluntariness must be self evident from the records and if voluntariness

cannot be determined from the records, the case is remanded for an

evidentiary hearing on that issue. U.S Supreme Court observed that Rule 11 is

                       

designed to eliminate any need to resort to a later fact-finding

proceedings in this highly subjective area and the Rule contemplates

that disputes as to the understanding of the defendant and the

voluntariness of his action are to be eliminated at the outset. When the

ascertainment is subsequently made, greater uncertainty is bound to

exist since in the resolution of disputed contentions of credibility and of

reliability of memory cannot be avoided and there is no adequate

substitute for demonstration in the record at the time the plea is entered

the defendant's understanding of the nature of the charge against him.

It was further held that prejudice inheres in a failure to comply with

Rule 11, for noncompliance deprives the defendant of the Rule's

procedural safeguards that are designed to facilitate a more accurate

determination of the voluntariness of his plea. That a defendant, whose

plea has been accepted in violation of Rule 11 should be afforded

opportunity to plead anew not only will insure that every accused is

afforded those procedural safeguards, but also will help to reduce the

great waste of judicial resources required to process the frivolous

attacks on guilty plea convictions that are encouraged, and are more

difficult to dispose of, when the original record is inadequate. It was

further held that it is therefore, not too much to require that, before

                             

sentencing defendants to years of imprisonment, District Judges take the

few minutes necessary to inform them of their rights and to determine

whether they understand the action they are taking, etc.

            15.      The case in Edward Boykin v. State of Alabama, reported 395

U.S 238 = 23 L Ed 2d 274, dealt with a defendant, who after pleading

guilty, was convicted of common law robbery in the Circuit Court of

Mobile Country, Alabama, and after trial by jury to determine the

punishment, was sentenced to die and on automatic appeal, the

Supreme Court affirmed and unanimously rejected the defendant's

argument that a sentence of death for common-law robbery was cruel

and unusual punishment within the meaning of the Federal

Constitution, but four of the seven Judges on their own motion

discussed the constitutionality of the process by which the trial judge

has accepted the defendant's guilty plea, and three of these four Judges

dissented from the affirmance on the ground that the record was

inadequate to show that the defendant had intelligently and knowingly

pleaded guilty. Thereupon the defendant approached the U.S Supreme

Court through an application on Certiorari, which resulted in the

reversal of the impugned judgment. But unanimous view of the court

was that the federal constitutional question of the voluntary character


of the defendant's guilty plea was properly before the U.S Supreme

Court notwithstanding the defendant failed to raise the question below

and the state court failed to pass upon it, and that there was reversible

error under the due process clause of the Fourteenth Amendment where

the record did not disclose that the defendant voluntarily and

understandingly entered such plea. Leading opinion was rendered by

Justice Douglas.        However, Justice Harlan, joined by Justice Black

dissented inter alia on the ground that objections were sought to be

raised at the behest of the defendant who had never alleged that the

guilty plea was involuntary or made without the knowledge of the

consequences, etc. The majority opinion held that the plea of guilty is

more than a confession which admits that the accused did various acts,

it is itself a conviction, and nothing remains but to give judgment and

determine punishment. It was also held that the trial court erred in

accepting the guilty plea without an affirmative showing that it was

intelligent and voluntary and was thus a plain error on the face of the

record. It was also held that the problem of waiver of the right to

counsel, a Sixth Amendment right, and presuming waiver from a silent

record is impermissible. The records must show or there must be an

allegation and evidence, which show, that an accused was offered

                                

counsel but intelligently and understandingly rejected the offer. That

the question of effective waiver of a federal constitutional right in a

proceedings is of course governed by federal standards. It was also

reiterated that the defendant who enters guilty plea simultaneously

waives several constitutional rights, including his privilege against

compulsory self-incrimination, his right to trial by jury, and his right to

confront his accusers. For this waiver to be valid under the due process

clause it must be an intentional relinquishment or abandonment of a

known right or privilege. If a defendant's plea is not voluntary and it

has been obtained in violation of the due process and is therefore void.

Moreover a guilty plea is an admission of all the elements of a formal

criminal charge, it cannot be truly voluntary unless the defendant

possesses an understanding of the law in relation to the facts. What is

at stake for an accused facing death or imprisonment as a result of a

plea of guilty demands the atmost solicitude of which the courts are

capable in canvassing the matter with the accused to make sure he has

a full understanding of what the plea connotes and of its consequences .

So far as the records shows, the judge asked no questions of petitioner

concerning his plea and the petitioner did not address the court.

Presuming waiver from a silent record is impermissible and a plea of



guilty is more than an admission of conduct; it is a conviction. Several

federal constitutional rights are involved in a waiver that takes place

when a plea of guilty is entered in a state criminal trial and first is the

privilege against compulsory self-incrimination guaranteed by the Fifth

Amendment and second is the right to trial by jury and the third is the

right to confront one's accusers and it cannot be presumed that waiver

of these three important federal rights from a silent record.

            16.      Sri.Sreelal N.Warrier, learned counsel appearing for the 2nd

respondent-complainant had urged that the reasons made by the

learned Single Judge in Joseph P.J. v. State of Kerala, reported in 2015 (5)

KHC 586, by placing reliance on the judgment of the Apex Court in

Girraj Prasad Meena v. State of Rajasthan reported in (2014) 13 SCC 674

= 2013 KHC 478, are untenable inasmuch as the facts of the case dealt

with by the Apex Court in Girraj Prasad's case (supra) do not relate to

the one involving plea bargaining as envisaged in Chapter XXIA of the

Cr.P.C but it is in relation to acceptance of plea of guilt made by the

accused in the course of a regular trial, etc. A reading of para 5 of

Girraj Prasad's            case (supra) would show that in that case, after

commencement of the trial, the court had ordered the presence of

witnesses for recording of statements on which day summons were

                                          
issued to 3 other witnesses including                                   the appellant therein

victim/defacto complainant for recording of their evidence on 7.7.2011

but on that day so fixed, the trial could not proceed and thereafter on

15.7.2011 both the respondent-accused appeared before the learned

trial court and filed an application pleading guilty for the offences

under Secs.323 and 343 of the IPC and the trial court entertained the

application forthwith and the trial court concluded the trial on that day

itself, without issuing notice to the appellant/victim and convicting the

respondents only imposing a fine of Rs 500/-, and further granting

them the benefit of provisions of Secs. 3 and 12 of the Probation of

Offenders Act, 1958.                  The learned Magistrate further held that the

order passed in the criminal case therein shall not have any adverse

effect on the government service of the accused persons. The Apex

Court has clearly held in para 20 of the ruling in Girraj Prasad Meena v.

State of Rajasthan , reported in (2014) 13 SCC 674, as follows:

                     "20. The High Court rejected the application under Section 482 CrPC filed by
            the appellant only on the ground that the appellant neither challenged the order of
            taking cognizance nor raised any objection at the time of reading over of the charges
            to the accused. The High Court failed to appreciate that before the statement of the
            appellant or any other witness could be recorded, the trial court disposed of the matter
            on the date when the application itself had been submitted admitting the guilt. Even
            otherwise if the trial court wanted to entertain any issue of plea bargaining under
            Chapter 21-A, inserted w.e.f. 5-7-2006, then too the court was obliged thereunder to
            put the victim to notice before extending any such benefits that have been given in the
            present case. The procedure therefore appears to have been clearly violated. Therefore,
            in the facts and circumstances of the case, the appellant had no opportunity to raise

                                       

            any grievance before the appropriate forum."



On this basis the Apex Court set aside the impugned order of the trial

court and had remanded the matter to the trial court for disposal afresh.

From a reading of para 5 of the SCC report in Giriraj's case (supra), it

may appear that the plea of guilty subsequently made by the accused

may not be under Chapter XXIA of the Cr.P.C. Irrespective to that, their

Lordships of the Supreme Court have clearly held that even otherwise if

the trial court wanted to entertain any issue of plea bargaining under

Chapter XXIA, then too the court was obliged thereunder to put the

victim to notice before extending any such benefits that have been given

in the present case and the procedure therefor appears to have been

clearly violated. Therefore it has been clearly held that even if the

accused wanted to avail the benefit of plea bargaining as envisaged in

Chapter XXIA of the Cr.P.C, still it would have been mandatory even to

put the victim/defacto complainant to notice. It is clearly stated in the

facts of that case that final report/charge sheet was filed in that case by

the police investigation agency. Thereafter, it has been clearly held

therein that even in police charge sheeted case, for entertaining the plea

bargaining process, participation of not only the accused, the State

Prosecutor representing the police authorities alone may not suffice in a


case where there is victim and that notice even to the victim is

mandatory before the trial court can entertain the plea bargaining

under Chapter XXIA of the Cr.P.C. Therefore, it clearly flows therefrom

that their Lordships of the Supreme Court have clearly held in Girraj

Prasad's case (supra) that the provisions in Chapter XXIA are indeed

mandatory and failure to comply with such mandatory procedure

would vitiate the acceptance of plea bargaining by the trial court, etc.

So the argument made by the learned counsel appearing for R-2

complainant on this aspect is untenable and is thus overruled.

            17.      Decision of this Court in Abdul Jaleel v. Station House Officer,

Kozhikode & anr. reported in 2014 (2) KLD 161, is on the legality of

acceptance of guilty plea under Sec.252 of the Cr.P.C. Therein the

Magistrate had convicted the accused on the premise that he had

pleaded guilty and the accused said that he had not pleaded guilty and

relying on that plea of guilt, entered the conviction and as such, there is

no illegality committed by the court below and mere irregularity will

not vitiate the conviction. This Court held that since there was nothing

on record to show that the plea of the accused was recorded by the

learned Magistrate before accepting the same and entering the

conviction on the basis of such plea, it would vitiate the conviction.

                          

That when a procedure is directed to be adopted by the Magistrate, and

if the Magistrate does not follow that, the conviction rendered by the

Magistrate without following the procedure would be vitiated. It was

also held therein that since there was nothing on record to show that

the plea was recorded under Sec.252 of the Cr.P.C r/w Secs.262 & 263

(g) of the Cr.P.C and the plea was voluntarily made, then conviction

entered by the court below on the basis of such guilty plea would be

vitiated and is liable to be set aside. In the case in Brijlal Amarbanshi &

ors. v. State of Maharashtra reported in 2009 Crl.L.J. 87, the Bombay

High Court dealt with a case where the accused was pleaded not guilty

at the time of framing of charges and consequently they had written

letter to the trial court stating that they are pleaded guilty and that

considering their poverty and difficulties faced by them and the family

responsibility, justice be given to them with compassion and they pray

to plead guilt and it may be accepted and judgment may be

pronounced, etc. However, the trial court has informed the accused

that if they insist on pleading guilty, they would suffer sentence

according to law and even they would not be able to prefer appeal. But

the accused persisted on their stand and learned Special Judge

proceeded to act upon and has pronounced impugned judgment and

                                           
convicted and sentenced them. The Bombay High Court held in para 11

thereof as follows:

                      " 11. Ordinarily in serious offence, plead guilty is to be avoided and it is
            desirable to direct that the case should be tried. Even if plea guilt is recorded which
            would be done, by distinctly putting to the accused each fact alleged in charge, if
            proved, would constitute an offence. Yet even on observing these safeguards, the Court
            would not be relieved from its duty of being satisfied that the plead guilty was made by
            the accused upon fully understandingly the repercussions and with free will, and is
            genuine and not due to misunderstanding and it would be to have the accused being
            tried. It is also to be ensured that the accused are duly represented through Advocate.
            The view expressed above is well supported by various judgments apart from one
            relied upon by the appellants and in particular following judgments : -

            1. AIR 1947 Bombay 345, Abdul Kader Allarakhia v. Emperor
            2. AIR 1966 SC 22, Mahant Kaushalyadas v. State of Madras.
            3. 1973 CriLJ 358, S. Chinnaswamy v. The State.
            4. 1999 CriLJ 2857, Anand Vithoba Lohakare and Others v. State of Maharashtra.
                      It would not be necessary to discuss each judgments quoted supra and
            including the judgments cited by the learned Advocate for the appellants, and one by
            the prosecution."

It was stated that going by the nature of charges framed by the court,

the plea of guilt put forward by the accused is not in the form of

admission of each fact and act which constitutes the ingredients of

offence of charge and that the plea of guilt cannot be taken as an

admission of the facts simplicitor which in law constitutes the offence

and that the accused were deprived of the legal assistance in that case

and that the accused thus entitled to successfully urge that their plea of

guilt is definitely not rendered in accordance with law and that they are

entitled to fair trial and on this basis impugned sentence and conviction

was set aside and the matter was remitted to the trial court.

                         

            18.      In the case in Thippaswamy v. State of Karnataka, reported in

(1983) 1 SCC 194, the accused had pleaded guilty and thereupon the

trial Magistrate has imposed a fine of Rs.1,000/- even though the

offence for which he was convicted was Sec.304A of the IPC. The High

Court in appeal by the State accepted the plea of guilt and additionally

imposed rigorous imprisonment for one year. The facts in that case

dealt with in the judgment dated 25.11.1982 of the Supreme Court did

not obviously involve applicability of Chapter XXIA of the Cr.P.C for

plea bargaining, which came into force only with effect from 5.7.2006.

But it is observed therein that the accused had obviously sought plea

bargaining and from the facts of that case the accused thought that they

could get a better bargain by pleading guilty for a lighter sentence or

mere fine for the offence under Sec.304 of the IPC. The Supreme Court

has clearly held that it would clearly be violative of Article 21 of the

Constitution of India to induce or lead an accused to plead guilty under

a promise or assurance that he would be let off lightly and then in

appeal or revision, to enhance the sentence and that it would not be

reasonable, fair and just to act on the plea of guilty for the purpose of

enhancing the sentence. It was held that in such cases where there is

an appeal seeking enhancement of the sentence, the appellate


court/revisional court should set aside the very conviction and sentence

of the accused and remit the case to the trial court for fresh disposal so

that the accused can, if he wishes to, defend himself against charge

instead of having to place reliance on his plea of guilt for the purpose of

enhancing the sentence in appeal or revision.

            19.      In the illuminating judgment of a learned Single Judge of

this Court, Subramanian Potti (J) as his Lordship then was, in State v.

Gopinatha Pillai, reported in 1978 KLT 779, it has been held that plea

of guilt envisaged in Sec.252 of the Cr.P.C, provides that if the accused

pleads guilty, the Magistrate shall record his plea as merely as possible

in the words used by the accused and may in his discretion convict him

thereon. That conviction of an accused on the basis of pleading guilty is

not automatic and does not follow merely because such plea is made.

The court has to judicially consider whether conviction would be

warranted and that is where there is a scope for exercise of the

discretion of the Magistrate. It was also inter alia held therein that it is

only when there is genuine plea of guilty made freely and voluntarily

that the bar under Sec.375 of the Cr.P.C would apply, which stipulates

that no appeal can be filed where an accused has been pleaded guilty and has been convicted except as to the extent for 
legality of the

sentence, etc.            That there may be instances where facts averred or

pleaded by the prosecution did not amount to an offence and pleading

by the accused that he is guilty does not preclude him from filing an

appeal against the conviction, etc. It will be pertinent to refer to paras 5

& 6 of the judgment of this Court in State v. Gopinatha Pillai , reported in

1978 KLT 779, which read as follows:

                     "5  S.251 of the Code provides that when, in a summons case, the accused
            appears or is brought before the Magistrate, the particulars of the offence of which be
            is accused shall be stated to him, and he shall be asked whether be pleads guilty or has
            any defence to make, but it shall not be necessary to frame a formal charge. It is agreed
            by both sides that it is S.251 that is applicable to the facts of the case here. S.252
            provides that if the accused pleads guilty, the Magistrate shall record the plea as nearly
            as possible in the words used by the accused and may, in his discretion, convict him
            thereon. Evidently the conviction of an accused on a plea of guilty is not automatic and
            does not follow merely because such plea is made. Despite the plea the court has to
            judicially consider whether the conviction would be warranted and that is where there
            is scope for exercise of the discretion of the Magistrate. Various factors may have
            bearing on whether, despite the plea by the accused that he is guilty, he has to be
            convicted or whether the case has to be tried and disposed of on the evidence that may
            be taken at the trial. The duty cast upon a court to decide whether the plea by the
            accused that he is guilty should be the sole basis for conviction is a solemn duty, the
            exercise of which calls for due care and caution. If the Magistrate has reason to feel
            that the plea entered by the accused is not voluntary he has to probe further into the
            matter and he is to act upon such plea only if he is fully convinced that the accused
            pleaded guilty of his own free will. Equally relevant is the case where a court has
            reason to feel that the accused may not have understood the charge fully, the facts as
            well as the inference drawn from the facts stated in the charge. It is possible that the
            accused may not be properly advised because of the situation in which he is placed.
            May be he entered plea of guilty assuming that the consequences may not be serious. In
            short, except in a case where the court feels that the plea of guilty made by the accused
            was made under circumstances where be was well advised as to what he was pleading
            and was well aware of the consequences of his plea, the court may not be justified in
            acting upon such plea and convicting the accused without may evidence.

                                        

                     6 It is only when there is a genuine plea of guilty made freely and voluntarily
            that the bar under S.375 of the Code would apply. There may be instances where the
            facts averred or pleaded by the prosecution do not amount to an offence. Pleading by
            the accused that he is guilty does not preclude him from filing an appeal against the
            conviction. That is because his plea may amount only to the admission of facts averred
            by the prosecution which, even if true, may not be sufficient to constitute an offence.
            Reference may be made in this context to the decision of the High Court of Madras in
            In re. U. R. Ramaswami, AIR 1954 Mad. 1020. In that case the accused represented
            himself to be a merchant dealing in broken glass pieces and obtained an advance of Rs.
            300/-from the complainant in two instalments agreeing to supply certain quantity of
            glass pieces to him within a fixed period. The glass pieces were not supplied within the
            stipulated period and when be was pressed by the complainant the accused gave a
            cheque to the complainant which was dishonoured the there was no balance to the
            credit of the accused at that time. On these facts a charge under S.409 of the IPC. was
            framed and the accused pleaded guilty to that charge. The Magistrate found that there
            was no intention on the part of the accused to cheat or defraud at the outset and that it
            was apparently due to circumstances beyond his control that the accused could not act
            according to the terms of the contract. The Magistrate also found that the issue of
            cheque was not an act of fraud but really was proof of good faith. But nevertheless the
            Magistrate was of the view that an offence under S.409 was made out because the
            accused did not use the money for the purpose for which it was intended, namely, to be
            used by him in his capacity as merchant and so accepting the plea of guilty, the
            Magistrate convicted the accused. The appellate court held that the plea of guilty did
            not bar the appeal from being entertained. That was because if the question be one of
            admission of all the tacts and the tacts pleaded are not disputed, even then the accused
            would not be guilty. When a person advances money for purchase it is not an
            entrustment for a specific purpose. The money so advanced becomes the money of the
            person to whom it was so advanced, and be is free to utilise it otherwise than for his
            business. The view to the contrary taken by the learned Magistrate was found to be
            unsustainable. Plea of guilty did not preclude a challenge to the inference drawn."

            20.      Therefore, adjudication of the present issues in this case,

from the backdrop of the constitutional guaranteed right to remain

silent as adumbrated in Article 20(3) of the Constitution of India as well

as in the light of the legal principles discernible from the aforesaid

judgments, the procedure contemplated in Chapter XXI of the Cr.P.C, as

in Secs.265B(4), 265D, etc., is mandatory and failure to meticulously

                              
and strictly follow such provisions by the trial court would render it

illegal, ultra vires and void. When an accused pleads guilty, it amounts

to waiver of his liberty, constitutional rights, right to remain silent/right

against self discrimination/right of effective defence and to meet the

charges of his accusers, etc. When a post-conviction challenge is made

against plea bargaining process, the same can be adjudged only if there

is a proper and effective record of the proceedings to show that plea of

guilt was indeed made by the accused voluntarily, knowingly and

intelligently and knowing fully about the consequences thereof. The

trial court is under a bounden judicial obligation to ascertain and

ensure that the accused has made the plea of guilt voluntarily,

intelligently and fully knowing about its consequences. It is for this

purpose that in camera examination of the accused by the trial court

without the presence of the complainant has been mandated in

Sec.265B(4).            After rendering of the statement by the parties in

accordance with the guidelines for mutually satisfactory disposition as

per Sec.265(c), the trial court is still further under a judicial obligation

to render a statutory report regarding the mutually satisfactory disposition as

envisaged in Sec.265D. However, Sec.265J contained in Chapter XXIA further

mandates             that provisions  in  that Chapter   shall   have    effect

                                    
notwithstanding anything inconsistent therewith contained in any other

provisions of the Cr.P.C and nothing in such other provisions shall be

construed to constrain the meaning of any provision in Chapter XXIA.

Sec.265J reads as follows:

            "Sec.265J:  Savings.- The provisions of this Chapter shall have effect notwithstanding
            anything inconsistent therewith contained in any other provisions of this Code and
            nothing in such other provisions shall be construed to constrain the meaning of any
            provision of this Chapter.

            Explanation.- For the purposes of this Chapter, the expression "Public Prosecutor" has
            the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public
            Prosecutor appointed under section 25."

Secs.465 of the Cr.P.C in Chapter XXXV deals with irregular

proceedings. Sec.465 reads as follows:

                     Sec.465: Finding or sentence when reversible by reason of error, omission or
            irregularly.- (1) Subject to the provisions hereinbefore contained, no finding, sentence
            or order passed by a Court of competent jurisdiction shall be reversed or altered by a
            Court of appeal, confirmation, or revision on account of any error, omission or
            irregularity in the complaint, summons, warrant, proclamation, order, judgment or
            other proceedings before or during trial or in any inquiry or other proceedings under
            this Code, or any error, or irregularity in any sanction for the prosecution, unless in
            the opinion of that Court, a failure of justice has in fact been occasioned thereby.

                     (2) In determining whether any error, omission or irregularity in any
            proceeding under this Code, or any error, or irregularity in any sanction for the
            prosecution has occasioned a failure of justice, the Court shall have regard to the fact
            whether the objection could and should have been raised at an earlier stage in
            proceedings.

In any post-conviction challenge against the plea bargaining process,

the heart and soul of the matter is as to whether the accused had

voluntarily knowingly and intelligently made the plea. Therefore, these

                                              
provisions in Chapter XXIA of the Cr.P.C are indeed mandatory.

            21.      Going by the provisions in Chapter XXIA of the Cr.P.C and

evaluating those provisions in the light of the aforementioned

constitutional guaranteed rights, this Court has no hesitation to hold

that failure to comply with the mandatory provisions in Chapter XXIA

would thus result in prejudice and failure of justice to the accused. This

view is all the more justified in the light of the provisions contained in

Sec.265J of the Cr.P.C Sec.265G in Chapter XXIA of the Cr.P.C dealing

with the judgment in plea bargaining process, reads as follows:


            Sec.265G: Finality of the judgment.- The judgment delivered by the Court under section
            265G shall be final and no appeal (except the special leave petition under article 136
            and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court
            against such judgment.

            22.      Thus going by the overall scheme in the provisions

contained in the Cr.P.C more particularly in Chapter XXIA and in the

light of the backdrop of the constitutional guarantees, the provisions

contained in Sec.265G would even override any other provisions of the

Code, inconsistent with the former. Therefore, the complainant cannot

contend that the accused should necessarily prove miscarriage of justice

or should establish factually that he has suffered failure of justice or

miscarriage of justice over the judgment impugned of the trial court in

the plea bargaining process so long as the accused can plead and

  establish that there has been flagrant violations of the mandatory

provisions contained in Chapter XXIA of the Cr.P.C. In the light of these

aspects, this Court has no hesitation to hold that the contentions raised

by the learned counsel for R-2 challenging the correctness of the view

taken by the learned single Judge of this Court in Joseph v. State of Kerala

reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported

in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in

2016 (1) KLT 117 are bereft of any merit and the said arguments of the

complainant are overruled. That apart, this Court would fully concur

with the views, reasonings and conclusions arrived at by the learned

Single Judge [B.Kemal Pasha (J)] in the aforecited judgments. This Court

in the decision in Joseph P.J v. State of Kerala & anr. reported in 2015 (5)

KHC 586 has held in para 6 as follows:

                     "6. Consequently, an offence under S.138 of the NI Act is not covered by

            S.265E Clauses (a) to (c). This is not an offence wherein minimum sentence has been
            prescribed. In such case, in the case of plea bargaining, the Court below ought to have
            complied with the provisions of S.265E(d) CrPC, and the Court below ought to have
            imposed one fourth of the sentence that can be imposed. The offence under S.138 of
            the NI Act is punishable with imprisonment with a term which may extend to 2 years,
            or with fine, which may extend to twice the amount of cheque. Even in the case of
            fine, the Court below could have imposed only half the amount ordered as fine in the
            present case. In the matter of sentence, the Court below ought to have considered the
            substantive sentence of imprisonment as well as the fine which could be imposed. In
            that case the Court below ought to have imposed substantive sentence of
            imprisonment for six months also."

                                   


            23.      In view of the said position, this Court would opine that it

may not be appropriate for the trial court to take recourse to the plea

bargaining process under Chapter XXIA of the Cr.P.C in relation to the

complaints for offence punishable under Sec.138 of the N.I.Act. If the

parties are willing, the trial court should endeavour to refer those

disputants to the nearest mediation centre or Adalat for facilitating

resolution of disputes through such alternate dispute resolution

mechanisms.             If the mediation process undertaken by the parties is

successful, then the complainant could be permitted to withdraw the

complaint in terms of the provisions contained in Sec.257 of the Cr.P.C

or both the parties could be permitted to file a joint compromise petition

for compounding of the offence in terms of Sec.147 of the N.I.Act r/w

Sec.320 of the Cr.P.C. If Adalat process is successful, then award could

be passed in terms of the provisions contained in Legal Service

Authorities Act. In such cases, the Apex Court has held in K.N.Govindan

Kutty Menon v. C.D.Shaji reported in (2012) 2 SCC 51 that award of the

Adalat could be treated as executable decree, etc. Since the provisions

contained in Chapter XXIA of the Cr.P.C have been made effective from

5.7.2006, it appears that most of the trial courts may not be actually in grips

with the provisions contained in the said Chapter, which is to be appreciated



and applied in the backdrop of the aforementioned constitutional

guaranteed right.

            24.      The aforementioned provisions in Chapter XXIA of the

Cr.P.C are the procedures engrafted by the Parliament, which are to be

observed before the accused is found guilty and sentenced in such plea

bargaining process. If such mandatory procedures are violated, then it

will amount to denial of the procedural safeguards, which are inbuilt as

due process in Article 21 of the Constitution of India and the corollary

of such failure to observe those procedures would amount to

deprivation of the personal rights of an accused on account of his

conviction. Article 21 of the Constitution of India has guaranteed that

no person shall be deprived of his personal liberty except according to

the procedure established by law and case laws of the Supreme Court

are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1

SCC 248, wherein it has been held that the right to life and personal

liberty cannot be denied to anyone except, in accordance with the

procedure established by law, which is just, fair and reasonable. So

needless to say, any violation of such mandatory provisions in Chapter

XXIA of the Cr.P.C would amount to denial of constitutional right to life

and personal liberty of an accused.

                                    
            25.      The impugned decision making process of the trial court is

also vitiated on account of various other factors which have already

been referred to in detail in the preceding paragraphs of this judgment.

Sri.Sreelal N.Warrier, learned counsel for R-2, submits that believing on

the bonafides of the accused the complainant had even withdrawn the

civil suit filed by him as O.S.No.267/2013 against the accused in respect

of recovery of money covered by the dishonoured cheque in question

and that the complainant is in pitiable situation and that the accused

has disowned the plea bargaining in the criminal proceedings and the

accused could also get the advantage in the complainant's withdrawal

of the civil suit filed by him. Sri.Shaju Purushothaman, leaned counsel

appearing for the petitioner, on the basis of instructions of his party

would fairly submit that in case the complainant files a proper

application before the civil court for recall of the order dismissing the

suit as withdrawn and for restoration of the suit to be tried on merits,

then the accused, who is the defendant therein, will not oppose the said

plea and even the plea for condonation of delay in filing such

application before the civil court and that the accused does not want to

take any undue advantage over the complainant and that the

complainant may produce a copy of this judgment before the civil court


to show that the accused has made such an undertaking in that regard.

The said submissions made by Sri.Shaju Purushothaman, learned

counsel appearing on behalf on the accused, are recorded and it is for

the complainant to take appropriate measures before the civil court for

recall of the order dismissing the civil suit as withdrawn and for its

restoration, and to try the suit on merits, etc., and the undertaking on

the above said aspects made by the accused that he will not oppose such

pleas that may be made before the civil court may be brought to the

notice of the civil court by producing a copy of this judgment.

            26.      In the light of these aspects, it is held that the impugned

Ext.P-3 order dated 12.11.2014 passed by the Judicial First Class

Magistrate Court, Erattupettah, in C.C.No.101/2013 convicting and

sentencing the petitioner in the plea bargaining process, is declared as

illegal and ultra vires and the same is set aside. Consequently, the

complaint in C.C.No.101/2013 is restored to the trial court concerned

and the trial court will proceed with the trial of the case from the stage

where it had reached immediately prior to the commencement of the

plea bargaining process and then complete the trial in accordance with

law. Having regard to the fact that the complaint was instituted as early

as in the year February, 2013, it is ordered that the trial court will take
all expeditious steps to ensure that the trial is completed within a period

of 3-4 months from the date of production of a certified copy of this

judgment. It is further ordered that the trial court shall not in any

manner take into account the aspects relating to the plea bargaining

process and the final verdict is to be rendered, untrammelled in any

manner by the plea bargaining process which has been now set aside by

this Court. The Registry will return back the LCR along with a copy of

this judgment to the trial court.

            With these observations and direction, the Original Petition

(Criminal) stands finally disposed of.


Print Page

No comments:

Post a Comment