Kerala High Court
Bichitra Mohanty vs State Of Kerala on 6 February, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
CRL.MC NO. 6900 OF 2023
CRIME NO.21/2022 OF Kalamassery Police Station, Ernakulam
AGAINST CC 113/2022 OF JMFC, KALAMASSERY
PETITIONER/ACCUSED:
BICHITRA MOHANTY
AGED 35 YEARS,S/O SRENDRA MOHANTY,
PITALA P.O, GANJAM DISTRICT,
ORISSA - 761 103
NOW RESIDING AT C/O ALI,
HOUSE NO. 405, NEAR SOE CANTEEN,
PIPELINE ROAD, THOSHIBA,
KALAMASSERRY P.O,
ERNAKULAM, PIN - 683104
BY ADVS.
JINU JOSEPH
N.RAGHUNATH
P.K.MOHAMED JAMEEL
ANU PHILIPOSE
MATHEW.K.S.
K.P.BHAGYESH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682031
(CRIME NO. 21 OF 2022 OF KALAMASSERRY POLICE
STATION)
SMT. SREEJA V. , PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 23.01.2024, THE COURT ON 06.02.2024 PASSED THE
FOLLOWING:
Crl.M.C. No.6900/23 -:2:-
BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C. No.6900 of 2023
---------------------------------
Dated this the 6th day of February, 2024
ORDER
Petitioner seeks for a direction to set aside the judgment dated
10.10.2022 in C.C. No. 113 of 2022 on the files of the Judicial First Class
Magistrate's court, Kalamassery, which arose from Crime No.21 of 2022 of
Kalamassery Police Station. The offences alleged against the petitioner
were only under sections 279 and 338 of the Indian Penal Code, 1860 (for
short 'IPC').
2. The petitioner hails from Orissa. On 03.01.2022 at around 7.30
pm, an accident occurred. Petitioner was allegedly driving a motorcycle
bearing registration No.KL-20-F-6047. He is alleged to have driven the
vehicle rashly and negligently and, while overtaking, collided with a
scooter bearing number KL-07-CU-9435, causing serious injuries to
the driver of the scooter and committed the offences under sections 279
and 338 of IPC. Petitioner alleges that since he is illiterate in Malayalam
language, he was told by the police to reply to the Magistrate to plead
guilty, and he abided by the said advice and pleaded guilty on 10.10.2022,
without realizing the implication. By judgment dated 10.10.2022, the
learned Magistrate imposed a fine amount of Rs.1000/- for each of the
offences. Petitioner is stated to have remitted the fine amount in court.
3. However, after the case was disposed of based on the plea of
guilt, the injured allegedly succumbed to his injuries, and therefore, the
case was altered to section 304A IPC and petitioner has been served with
a summons intimating him that the offence under sections 279 and 338 of
IPC has been altered to section 304A of the IPC. According to the
petitioner, at the time when he pleaded guilty, the offence alleged against
him was only under sections 279 and 338 of IPC and now, since he is
facing charges for the offence under section 304A IPC, he ought to be
permitted to backtrack from the plea of guilt and contest the case on
merits.
4. Petitioner contends that he pleaded guilty without properly
understanding the question put forward by the Magistrate and that since
the charge has now been altered to section 304A IPC due to the
subsequent death of the injured, the judgment of the Judicial First Class
Magistrate's Court, Kalamassery in C.C. No.113 of 2022 ought to be set
aside and he must be permitted to contest the case on merits.
5. I have heard Sri. Jinu Joseph, the learned counsel for the
petitioner, as well as Smt.Sreeja V., the learned Public Prosecutor.
6. The accident occurred on 03.01.2022, and the final report was
filed on 04.02.2022, arraying the petitioner as an accused for the offences
under sections 279 and 338 IPC. On 10.10.2022, the accused pleaded
guilty for the offences under sections 279 and 338 IPC, and he was
sentenced to Rs.1000/- for each of those offences. Since the injured died
later, the charge has been altered, and now the petitioner has been served
with a summons for the offence under section 304A IPC.
7. Petitioner had pleaded guilty to the offences under sections 279
and 338 IPC and not under section 304A IPC. However, if the plea of guilt
remains, the petitioner's defence can be prejudiced since the charge has
been altered to section 304A IPC.
8. In this context, it has to be noticed that in Raseen Babu v. State of
Kerala (2021 (4) KLT 22), this Court had, after analysing the provisions of
sections 229, 241 and 252 IPC, held that before acting upon a plea of guilt
the following requirements ought to be complied with; (i) the Magistrate
should frame the charge specifying the offences alleged against the
accused, (ii) the charge should be read over and explained to the
accused, (iii) the accused should be asked whether he pleads guilty of the
offences with which he is charged, (iv) the accused should plead guilty
after understanding the seriousness of the allegations and the implications
of pleading guilty. The plea should be voluntary and expressed in clear
and unambiguous terms, (v) the Magistrate should record the accused
plea of guilty in the words of the accused to the extent possible, (vi) the
Magistrate, after considering all relevant factors, should exercise the
discretion and decide whether to accept the plea of guilty or not; and (vii) if
the plea is accepted, the accused can be convicted and suitable
punishment be imposed.
9. The plea of guilt and the consequent conviction is not an empty
formality, and the procedure has to be strictly followed. Whenever the
pleading of guilt is questioned, unless the procedure has been complied
with as laid down above, sanction cannot be accorded to such a plea. In
the instant case, it is evident that the plea of guilt made by the accused
was not for the offence under section 304A IPC. When the accused
pleaded guilty, the offence was only under sections 279 and 338 IPC. The
situation would have been different had the accused been informed that
the offence included section 304A IPC as well. Hence, the plea of guilt for
the offence under sections 279 and 338 of IPC in C.C. No. 113/2022
cannot be said to be voluntary. Further, the accused has a right to a fair
trial. If the plea of guilt made at a time when the offence charged was only
under sections 279 and 338 IPC is allowed to remain, despite the charge
being altered, petitioner's rights to a fair trial may get affected. Such a
procedure will be unjust and unfair. In such circumstances, the conviction
and subsequent sentence imposed upon the petitioner on the basis of his
plea of guilt in C.C. No.113 of 2022 on the files of the Judicial First Class
Magistrate's Court, Kalamassery, is liable to be set aside.
Accordingly, the conviction and sentence on the accused by the
judgment dated 10.10.2022 and the plea of guilt made by the petitioner in
C.C. No.113 of 2022 on the files of the Judicial First Class Magistrate's
Court, Kalamassery, are set aside. The petitioner will be entitled to contest
C.C. No.860 of 2023 on merits without referring to the plea of guilt in C.C.
No.113 of 2022.
Crl.M.C. is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER ANNEXURES
Annexure A1 A COPY OF THE FINAL REPORT IN THE ABOVE
CRIME NO. 21/2022 DATED 04-02-2022
Annexure A2 THE JUDGEMENT DATED 10-10-2022 IN CC NO.
Annexure A3 THE PLEA RECORDED STATEMENT
Annexure A4 THE JUDGMENT OF THIS COURT IN RASEEN
BABU V. STATE OF KERALA (2021 (4) KLT
22)
Annexure A5 TRUE COPY OF THE JUDGMENT IN CRL.M.C.
NO. 2293/2023 DATED 22-03-2023
Annexure A6 TRUE COPY OF THE SUMMONS DATED
14-09-2023 ISSUED BY THE FIRST CLASS
MAGISTRATE COURT KALAMASSERY IN CC NO.
