Kerala High Court
Dr.Godwin Samraj vs State Of Kerala on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
CRL.MC NO. 5272 OF 2021
[AGAINST THE CONVICTION AND SENTENCE IN S.T.NO.984 OF 2019 DATED
9.11.2019 BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-III,
KOZHIKODE.]
PETITIONER/ACCUSED:
DR.GODWIN SAMRAJ,
AGED 52 YEARS
S/O.LATE S.DEIVAPILLA, RESIDING AT 'SUBAH', PAROPPADY,
MARIKUNNU P.O., KOZHIKODE-673 012.
BY ADVS.
V.V.SURENDRAN
P.A.HARISH
DONA PAUL
ANUSREE.C
RESPONDENTS/STATE AND COMPLAINANTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, COCHIN-682 031.
2 SUB INSPECTOR OF POLICE,
CUSBA POLICE STATION, KOZHIKODE CITY, CALICUT-673 635.
3 *THE EDUCATIONAL AGENCY REPRESENTED BY MANAGER, MALABAR
CHRISTIAN COLLEGE, CSI DIOCESAN OFFICE, BANK ROAD,
CALICUT-673 001. [*DELETED AS PER ORDER DATED
28/01/2022 IN CRL.M.A.NO.1/2022]
OTHER PRESENT:
ADV. SUDHEER GOPALAKRISHANAN - PP FOR R1 & R2
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.5272 of 2021 2
O R D E R
The petitioner is the accused in S.T.No.984 of
2019 on the file of the Judicial First Class
Magistrate Court-III, Kozhikode. The aforesaid
case was registered against him by the 2nd
respondent alleging offences punishable under
Sections 279 of the Indian Penal Code (IPC) and
under Section 185 of the Motor Vehicles Act
(M.V.Act). The allegation against the petitioner
is that on 18.10.2019 at 10.20 p.m., he had driven
a car bearing registration No.KL-11.BP.6750 in a
rash and negligent manner under the influence of
alcohol. The F.I.R. was registered on 18.10.2019
and on 9.11.2019, the petitioner appeared through
counsel and the counsel pleaded guilty. On the
basis of such plea, the petitioner was convicted
and sentenced to pay a fine of Rs.750/- for the
offence under Section 279 of IPC and a fine of
Rs.10,000/- for the offence under Section 185 of
the M.V.Act. This Crl.M.C. is filed by the
petitioner challenging the aforesaid order of
convicting the petitioner.
2. Heard Sri. V.V. Surendran, the learned
counsel for the petitioner and Sri. Sudheer
Gopalakrishnan, the learned Public Prosecutor for
the State.
3. The specific case of the petitioner is
that, he has not authorized the lawyer to plead
guilty and the instruction given was only to enter
appearance on his behalf for defending the matter
further. It is also pointed out that, the
procedure adopted by the learned Magistrate for
convicting the petitioner was not in tune with the
statutory stipulations contained in the Code of
Criminal Procedure (Cr.PC). The learned counsel
also places reliance upon the decision of this
Court in Raseen Babu K.M. v. State of Kerala
[2021(3)KHC 394].
4. The contention of the learned counsel is
that, the learned Magistrate has recorded in the
order that, the particulars of the offence were
read over to the accused and he has pleaded
guilty. However, it is evident from the
proceedings itself that the accused was absent and
the appearance of the accused was through his
counsel. Therefore, the question of reading over
the particulars of offence to the accused has not
taken place.
5. Section 251 of the Cr.PC mandates that, as
soon as the accused appears or is brought before
the Magistrate, the particulars of the offence of
which he is accused of shall be stated to him, and
he shall be asked whether he pleads guilty or not.
Section 252 of the Cr.PC 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. However, in this case, it is evident
that the petitioner was not present before the
court at the relevant time and, therefore, the
observations in the order that the particulars of
the offence was read over to the accused cannot be
correct. The petitioner also has a case that, he
has not given any instruction to the counsel for
pleading guilty. The necessity of compliance of
the procedure while arriving at a conviction on
the basis of plea of guilty by the court has been
considered in Raseen Babu's case(supra) and it was
observed in paragraph 7 as follows:
7. The elaborate procedure prescribed in the
above Sections makes it abundantly clear that,
conviction of an accused based on the plea of
guilty is not an empty formality. The procedure
prescribed has to be followed strictly, since
acceptance of the plea would result in an accused
being convicted without trial. In this regard it
is apposite to consider the legal meaning of the
word "plead" which is 'to make, deliver, or file
any pleading'; 'to conduct the pleadings in a
cause'; 'interpose any pleading in a suit which
contains allegations of fact,' 'to deliver in a
formal manner the defendant's answer to the
plaintiff's declaration, or to the indictment, as
the case may be'. The meaning of the word
'guilty' in legal dictionaries is as follows:
"Having committed a crime or tort; the word used
by a prisoner in pleading to an indictment when
he confesses the crime of which he is charged,
and by the jury in convicting."
Therefore, going by the meanings of the words
'plea and guilty, the term 'pleading guilty'
should be require a positive and informed act of
admitting all the elements of the offence/s. Mere
lip service or a monosyllabic 'yes', in reply to
a pointed question by the Court, cannot, under
any circumstance, be equated with, or accepted
as, pleading of guilt by the accused."
From the above, it is evident that, while
convicting the accused on the basis of plea of
guilty, the Magistrate has to ensure that, the
plea is made by him after understanding
consequences of the same and gravity of the
punishment, which he is exposed to. In this case
no such exercise for ensuring the same is seen to
have been done. Moreover, the petitioner also has
a case that the plea of guilty was made by the
counsel without his authorization in this regard.
Therefore, I am of the view that, the petitioner
can be granted a further opportunity in the
matter.
6. In such circumstances, I am of the
view that, holding the petitioner guilty and
consequential conviction and sentence upon him by
the Judicial Magistrate of First Class-III,
Kozhikode vide order dated 9.11.2019 in S.T.No.984
of 2019 is to be set aside and it is ordered
accordingly. The learned Magistrate shall re-open
the case and re-consider the matter afresh after
issuing summons to the petitioner herein in this
regard. With the above observations, this Crl.M.C.
is disposed of. Since the order of conviction has
been set aside by this Court, the petitioner can
submit appropriate petition before the learned
Magistrate seeking release of the fine amount
which he has already deposited and appropriate
orders releasing the same shall be passed by the
learned Magistrate.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
APPENDIX OF CRL.MC 5272/2021
PETITIONER'S ANNEXURES:
Annexure A1 TRUE COPY OF THE PRINT OUT OF THE FIR DATED
18.10.2019 DOWNLOADED FROM E COURT.
Annexure A2 TRUE COPY OF THE PRINT OUT OF PROCEEDINGS
DOWNLOADED FROM E COURT DATED 09.11.2019.
Annexure A3 CERTIFIED COPY OF JUDGMENT IN ST 984/2019 OF
JFCM III, KOZHIKODE.
Annexure A4 TRUE COPY OF THE MEMO OF CHARGES AND
STATEMENT OF ALLEGATIONS ALONG WITH THE
COVERING LETTER DATED 14.09.2021.
Annexure A5 TRUE COPY OF THE DETAILED REPLY DATED
28.09.2021.
Annexure A6 TRUE COPY OF THE COMMUNICATION DATED
26.10.2021 RECEIVED BY THE PETITIONER.
Annexure A7 TRUE COPY OF THE NOTICE ISSUED TO ADVOCATE TO
THE PETITIONER DATED 28.10.2021.
