This product is Licensed to :

Surendra Bhilwal

1997 0 Supreme(Raj) 1365

1997 Supp CriC(Raj) 81

RAJASTHAN HIGH COURT

M.A.A.Khan, J.
J.K. Dholkia & Anr. - Appellant
Versus
State of Rajasthan - Respondent
S. B. Crl. Revision Petition No. 55 of 92.
Decided On : 12-09-1997

Key legal principle summarizing the central legal point(s)

established in the given judgment

Subject: Appropriate category - Sub-category

Fact of the Case. Finding of the Court. Issues. Ratio Decidendi. Final
Decision

JUDGMENT
1. - Heard the learned counsel for the parties.

2. The petitioners in this case are the owners and managers of M/s. Ceramics India
Ltd. Industrial Area, Bhiwari, Distt. Alwar. They are alleged to have committed the
offence of non-fencing the machineries in their factory, being an offence under
section 21 and punishable Under section 92 of the Factories Act, 1948 (the Act). The
Inspector Factories and Boilers, Bhiwari, has filed the complaint against the
petitioners for having committed the aforesaid offence on 29.4.89. It was alleged by
the complainant that the non-fencing of the machineries by the petitioners had led
to causing fatal injuries to one Amar Chand Guard on 26.4.89. When the Inspector
had inspected the factory premises, the Belt Conveyor and the Roller, whereat Amar
Chand had sustained injuries were found un-covered. The inspector accordingly filed
the complainant before the concerned Magistrate.

3. On 24.10.90 a request was made by the counsel of J.K. Dholkia. petitioner, that
the plea of guilty of the accused be recorded and that the case be decided through
his counsel Sh. Pavan Kumar. The learned Magistrate recorded the plea of guilty of
t h e accused through his counsel and imposed a fine of Rs. 500/- upon him.
Thereafter, on the adjourned date of hearing, i.e. 9.1.91, Sh. B.D. Agrawal, another
petitioner, made a similar request through his counsel and the learned Magistrate
recorded plea of guilty through his counsel and imposed the same amount of fine
upon him.

4. It appears that the State preferred a revision petition against the judgment and
order, dated 9.1.91 as passed by the learned Magistrate, in the case. The learned
Addl. Sessions Judge, Kishangarh Bas appears to have issued process to B.D.
Agrawal, petitioner, who was a respondent in that petition. However, without service
of the notice of date of hearing of the petition, the learned Addl. Sessions Judge
heard the learned Asstt. Public Prosecutor and set aside the order, as passed by the
Page No. 1 of 4
learned Magistrate and sent the case back to him for disposal according to law. At
the same time the learned Addl. Sessions Judge set aside the order of conviction of
J.K. Dholkia, petition, dated 25.10.90, against which no revision petition had been
filed by either of the parties and J.K. Dholkia, petitioner, had not put in appearance
before the learned Addl. Sessions Judge Both these orders have been challenged by
this petition Under section 397(1) Cr.RC. by both the petitioners.

5. The main argument of Mr. R.K. Mathur, the learned counsel for the petitioner was
that the impugned order was passed without giving an opportunity of being heard to
the petitioners and, therefore, the same should be set aside. Section 403 Cr.RC., no
doubt, says that it is not obligatory on the part of a revisional court to hear a party
in revision petition under section 397(1) Cr.PC. but Section 401 (2) Cr.RC., which
regulates the exercise of the powers of revision of this court requires that a party
should be given an opportunity of being heard before an order, adverse to his
interest, is passed. The same principle may be borrowed in Section 399 Cr.PC.
relating to the powers of revision of the Sessions Judge, as is provided in sub-sec. (2)
of that Section. Since, the learned Addl. Sessions Judge did not provide any
opportunity of being heard to the petitioner as was required to be done by him in
accordance with the provisions, contained in Section 399(2) r.w. Section 401 (2)
Cr.RC., the impugned order is bad in law.

6. However, an order, which is bad in law and may even be illegal, isnot to be set
aside in revision Under section 397 (1) Cr.RC. until such order causes some
prejudice to the petitioner or leads to mis carriage of justice. The petitioners could
not make out a case of injustice to them, caused by the impugned order, as the said
order simply, required the Magistrate to decide the case afresh according to law. I,
therefore, heard Mr. Mathur on merits of the petition particularly in view of the fact
that the offence was alleged to have been committed in the year 1989 and such
offence was punishable with two years imprisonment or with fine or with fine or with
both only.

7. Though Mr. Mathur urged that he wanted to withdraw the present petition, yet on
examining the impugned order I am of the opinion that the approach, adopted by
the learned Addl. Sessions Judge in passing the impugned order, does require this
Court to remove certain mis-conception of law on his part. Section 399 (1) Cr.RC.
casts a duty upon this court to examine the correctness, illegality and propriety of
the findings, recorded, and sentence, passed, by the inferior courts. On examination
of the impugned order it is noticed that the learned Addl. Sessions Judge has set
aside the orders of the learned Magistrate mainly on the ground that the plea of the
accused was recorded through their counsel and that the order of conviction was
passed in their absence. Both these points, which appeal to the learned Addl.
Sessions Judge, are not tenable at law.

8. Since the offence under section 21 of the Act was punishable with two years
imprisonment or with fine or with both, it offence was triable as a summons case as
per Schedule II of the Code of Criminal procedure. Section 253 (2) Cr.PC. provides
that the Magistrate may in his discretion convict the accused in his absence on his
plea of guilty and sentence him to pay the fine, specified in the summons case.
Though this Section has a relation to the summons sent to the accused under
section 206, which has been talked of in Section 253 (1), yet Section 252 admits of
the proposition that a plea of guilty may be recorded through a counsel, provided

Page No. 2 of 4
the offence is punishable with sentence of fine only. In case the offence is not
punishable with fine only, the plea of guilty shall have to be recorded on the
accused himself. In any case after recording the plea of guilty a judgment of
sentencing the accused with fine only, may be pronounced in his absence as per
provisions of Section 353 (7) Cr.PC. In my opinion, therefore, the learned Addl.
Sessions Judge was wrong when he entertained the opinion that an order of
conviction, imposing sentence of fine only, cannot be pronounced in the absence of
the parties. However, he was right on the other point when he stated that a plea of
guilty in a case, involving offence, punishable with imprisonment, cannot be
recorded through his counsel. The particulars of the offence and substance of
accusation in a summons case may be read over and explained to and a charge in a
warrants case may be framed on, an accused through his counsel provided there is
no plea of guilty at that stage of the proceedings. In the present case, before
recording the plea of guilty, the learned Magistrate can be said to have come to
know that the accused were going to plead guilty to the charge against them and
the recording of such plea of guilty through their counsel indicates that he knew
that on the plea of guilty, he (the counsel) would not be required to suffer any
sentence of imprisonment. That was clearly or case of "plea bargain". The learned
Addl. Sessions Judge was, therefore, right in finding such a mistake in the order
passed by the learned Magistrate.

9. In order to enable him to examine the legality and validity of the order, passed by
the Magistrate it was not necessary for the learned Judge to have exercised his
jurisdiction Under section 397(1) Cr.PC. only on the basis of an application, moved
before him. He could have taken suo moto cognizance of the matter and corrected
the illegality or invalidity, as the case may be in the order challenged. However,
before setting aside an order, favourable to an accused, it was obligatory on the part
of the learned Addl. Sessions Judge to have given a notice of the date of hearing of
the petition to the accused. But the learned Addl. Sessions Judge has not done that
in the present case.

10. Though the orders of the learned Magistrate as well as the order of the learned
Addl. Sessions Judge are found to be defective and invalid for the reasons, stated
above, and , therefore, deserve to be set aside yet I find that the offence had been
committed in the year 1989 and such offence was punishable with imprisonment for
two years or with fine or with both. The petitioners had, though through their
counsel,pleaded guilty to the aforesaid offences. It is, therefore, not desirable that
the matter be sent back to the Magistrate for trial afresh after so many years.
Therefore, to bring the litigation to an end this court would like to pass appropriate
orders with regard to the sentence, imposed on the petitioners.

11. Both the petitioners are held guilty of an offence Under section 21 r.w. Section
92 of the Act, convicted as such and sentenced to pay a fine of Rs. 10,000/- each or
to under go Simple Imprisonment for three months each, in case of default of the
payment of fine. The amount of fine, if realised, shall be paid to Amar Chand,
injured/deceased worker, by way of compensation. The petitioners are allowed three
months' time to pay such amount of fine.

12. The petition is disposed of accordingly.> Petition decided as above.

*******

Page No. 3 of 4
Page No. 4 of 4