Saturday, 27 April 2019

Whether Magistrate can convict accused on his admission of guilt without framing charge against him?

Section 238 Cr.P.C. obligates the Magistrate to satisfy himself
with regard to compliance of provisions of Section 207 i.e. supply to
the accused of the copy of the police report and other documents.
Thereafter, Section 239 Cr.P.C. requires the Magistrate to consider the
police report and documents sent thereunder and in case situation so
warrants discharge the accused if the Magistrate considers the charge
against the accused to be groundless. Under Section 240 Cr.P.C., if
upon consideration, examination and hearing the accused, the
Magistrate is of the opinion that there is ground for presuming that the
accused has committed the offence, and he is competent to try the
same, he shall frame a charge in writing against the accused.
8. The charge is thereafter to be read and the explained to the
accused and he is to be asked whether he pleads guilty of the offences
charged or claims to be tried. If the accused pleads guilty, under
Section 241 Cr.P.C the Magistrate is to record the plea and in his
discretion convict him thereon.
9. Perusal of order dated 22.11.2017 shows that the accused was
produced from judicial custody and there was no counsel representing
the accused. Though the orders shows that the Magistrate warned the

accused of the consequences of his pleading guilty, the Magistrate did
not appoint an amicus to represent the accused. Legal counsel
apparently was not made available to the accused at the stage when he
pleaded guilty.
10. Perusal of order dated 22.11.2017 further shows that there was
no consideration by the magistrate, as is mandated under Section 239
and Section 240 Cr.P.C. Further, no charge was framed. As no charge
was framed there was no question of the Magistrate at that stage to
record the plea of guilt or otherwise of the accused, even if voluntarily
made.
11. Since the procedures prescribed by Sections 239 & 240 were
not followed the Magistrate could not have convicted the petitioner
under Section 241 on his plea of guilt.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 24.04.2019
CRL.REV.P. 415/2019 and Crl.M.A.7424/2019

SH. ADI MALIK  Vs STATE 

CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA



1. Petitioner impugns order dated 19.03.2019 whereby the appeal
of the petitioner impugning order dated 22.11.2017 convicting the
petitioner of an offence punishable under Sections 454/380/34 IPC
and sentencing him to Simple Imprisonment for a period of six
months for each of the offences has been dismissed.
2. Learned counsel for the petitioner submits that the petitioner
had pleaded guilty before the Trial Court on 22.11.2017 with the
expectation that keeping in view the mitigating circumstances and
settlement with the complainant, petitioner would be acquitted or a

lenient view would be taken.
3. Learned counsel submits that petitioner had been arrested in
one case and subsequently the present false case has been planted on
the petitioner. Learned counsel further submits that the Trial Court
erred in convicting the petitioner by order dated 22.11.2017 and
recording his plea of guilt as the Trial Court had not yet reached the
stage of framing of charge and as such could not have recorded any
plea of guilt or otherwise in contravention of Section 240 & 241
Cr.P.C.
4. Learned APP points out that on the same date petitioner had
pleaded guilty to not only the offences in the subject FIR but also to
similar offences in another FIR. He submits that the order of the trial
court and Appellate Court in the other FIR were also challenged by
the petitioner in Crl. Revision petition No.414/2019, however, said
petition has been dismissed by order dated 08.04.2019.
5. Learned counsel for the petitioner per contra submits that order
dated 08.04.2019 does not consider the legal proposition being raised
in this petition.
6. Petitioner is alleged to have committed the offence under
Section 454/380/34 IPC. Perusal of order dated 22.11.2017 shows that
on the said date charge sheet was filed. Same was checked and
registered. Trial Court took cognizance of the offences. Copy of the

chargesheet and other documents were supplied to the petitioner.
Thereafter the petitioner submitted before the Court that he wanted to
plead guilty. Accordingly, plea of guilt was recorded and order of
conviction was passed.
7. Section 238 Cr.P.C. obligates the Magistrate to satisfy himself
with regard to compliance of provisions of Section 207 i.e. supply to
the accused of the copy of the police report and other documents.
Thereafter, Section 239 Cr.P.C. requires the Magistrate to consider the
police report and documents sent thereunder and in case situation so
warrants discharge the accused if the Magistrate considers the charge
against the accused to be groundless. Under Section 240 Cr.P.C., if
upon consideration, examination and hearing the accused, the
Magistrate is of the opinion that there is ground for presuming that the
accused has committed the offence, and he is competent to try the
same, he shall frame a charge in writing against the accused.
8. The charge is thereafter to be read and the explained to the
accused and he is to be asked whether he pleads guilty of the offences
charged or claims to be tried. If the accused pleads guilty, under
Section 241 Cr.P.C the Magistrate is to record the plea and in his
discretion convict him thereon.
9. Perusal of order dated 22.11.2017 shows that the accused was
produced from judicial custody and there was no counsel representing
the accused. Though the orders shows that the Magistrate warned the

accused of the consequences of his pleading guilty, the Magistrate did
not appoint an amicus to represent the accused. Legal counsel
apparently was not made available to the accused at the stage when he
pleaded guilty.
10. Perusal of order dated 22.11.2017 further shows that there was
no consideration by the magistrate, as is mandated under Section 239
and Section 240 Cr.P.C. Further, no charge was framed. As no charge
was framed there was no question of the Magistrate at that stage to
record the plea of guilt or otherwise of the accused, even if voluntarily
made.
11. Since the procedures prescribed by Sections 239 & 240 were
not followed the Magistrate could not have convicted the petitioner
under Section 241 on his plea of guilt.
12. Reference though may be had to Section 464 Cr.P.C which
stipulates that no finding, sentence or order shall be deemed invalid
merely on the ground that no charge was framed unless in the opinion
of the Court of appeal, confirmation or revision, a failure of justice
has in fact been occasioned thereby.
13. In the present case there is apparently no compliance with
Sections 239 and 240 i.e. consideration by the Magistrate of the police
report and the material submitted before it and an opinion formed that
charge should be framed. Further, no legal counsel apparently has
CRL.REV.P 415/2019 Page 5 of 6
been provided to the petitioner before recording his plea of guilt.
14. In view of the above circumstances, I am satisfied that failure of
justice has occasioned in the present case.
15. The fact that petitioner had filed another revision petition
challenging a similar order regarding a plea of guilt as also the
dismissal of his appeal, in my view does not preclude the petitioner
from raising a pure question of law as has been done in the present
case.
16. Further, perusal of order dated 08.04.2019 in
Crl.Rev.P.414/2019 arising out of other proceedings shows that such a
plea was neither raised nor considered by the Coordinate bench of this
Court and as such mere dismissal of the revision petition arising out of
other proceedings, in my view would not preclude the petitioner from
raising such plea in these proceedings.
17. As noticed above, I am satisfied that failure of justice has
occasioned in the present case. Accordingly, the impugned orders
dated 22.11.2017 of the Trial Court recording the plea of guilt and
convicting the petitioner and the judgment dated 19.03.2019 of the
Appellate Court dismissing his appeal are quashed.
18. The matter is remitted to the Trial Court to the stage of Section
207 Cr.P.C. The Magistrate shall proceed further in accordance with
the Cr.P.C.
CRL.REV.P 415/2019 Page 6 of 6
19. The petition is allowed in the above terms.
20. List the case before the Trial Court on 09.05.2019.
21. Petitioner shall be produced from custody before the Trial Court on the said date, as he is incarcerated in other cases.
22. In case there is no advocate appearing for the petitioner before the trial court, the Magistrate shall provide legal aid counsel to the petitioner to represent his case prior to proceeding further with the case.
23. Copy of the order be forwarded to the Trial Court as also the concerned Superintendent jail for compliance.
24. Order dasti under signatures of the Court Master.
APRIL 24, 2019 SANJEEV SACHDEVA, J
rk
Print Page

No comments:

Post a Comment