CR.A/282/1989 of STATE OF GUJARAT Vs PATEL CHHAGANLAL NARANBHAI on 1 December 1995

ORAL JUDGMENT:

The then learned Judicial Magistrate, First Class atManavadar, delivering the judgment on 6th February 1989, inCriminal Case No. 24 of 1989 on his file, convicted therespondent of the offence under Section 92 of the Factories Act,1948, for committing the breach of Rule 106 of the GujaratFactories Rules, 1963, and sentenced him with a fine of Rs.50/-,in default two days simple imprisonment more. The State hastherefore preferred this appeal for enhancement of the sentence.

2. Shortly stated, the facts leading the appellant to preferthis appeal are that, Shri S.R. Bodar serving as FactoryInspector visited the factory premises of Harshad Ginning Factorysituated at Meetdi in Manavadar taluka on 23rd November 1988.During the visit he could note that the rules required to be displayed on the Notice Board were not displayed and a breach ofRule 106 was committed. It was also noticed that as required bySection 108(2) of the Factories Act the notice giving particularsabout the adult workers was also not displayed and as per Section42 of the Factories Act adequate and suitable facilities forwashing were not provided to the workers. The appellant alsofound that the breach of Section 22(1) was committed by notmaintaining the registers. As such breaches on the part of therespondent were found, and because of those breaches, penalprovisions were attracted, the Factory Inspector preparednecessary papers for prosecuting the respondent and filed thecomplaint before the learned Judicial Magistrate at Manavadar.On being served with the notice, respondent appeared before thelower Court, and when the accusations were read over andexplained to him, he pleaded guilty and prayed for mercy. Thelearned Magistrate accepted the plea of guilty being madevoluntarily, and on that plea, convicted and sentenced therespondent as hereinabove stated. The appellant then thoughtthat the sentence inflicted was nothing but a mockery of justice.The punishment was not commensurating with the gravity ofoffence, and therefore the present appeal has been filed beforethis Court for enhancement.

3. Mr. Divetia, the learned Additional Public Prosecutor appearing on behalf of appellant, submitted how the learned Judgetook a very lenient view though gravity of the offence requiredto take a harsh view. He urged to heavily come down upon suchwrong-doers playing mischief with the health, welfare and safetyof the workers. On behalf of respondent, no one appeared thoughsufficient time was granted and matter was adjourned four times.

4. No doubt, the wrong-doer, if the charge is proved, mustbe punished and the sentence to be inflicted must becommensurating with the gravity of the offence, and if the Courttakes a lenient view in appeal the duty of the Court is to takethe view just and proper in the circumstances and pass thesentence commensurating with the gravity of the offence.However, in this case, it would not be possible for me to acceptthe submission made on behalf of the State because of thedecision rendered by the Apex Court. The principle which hasbeen laid down in that decision is exactly applicable to thepresent case. It may be mentioned that respondent pleaded guiltyand thereafter the State has preferred the appeal for enhancementof the punishment. What should be done if such is the case wasthe point raised before the Supreme Court in the case ofThippeswamy vs. State of Karnataka - AIR 1983 Supreme Court 747,wherein it is held : "Where by reason of plea bargaining theaccused pleaded guilty and was convicted and sentenced byMagistrate acting upon his plea of guilty, the enhancement ofsentence by the appellate or revisional Court in appeal orrevision by acting on plea of guilty would not be reasonable, fair and just. It would be clearly violative of Article 21 ofthe Constitution to induce or lead an accused to plead guiltyunder a promise or assurance that he would be let off lightly,and then appeal or revision, to enhance the sentence ispreferred. The Court of appeal or revision should, in such acase, set aside the conviction and sentence of the accused, andremand the case to the trial Court so that the accused can, if heso wishes, defend himself against the charge, and if he is foundguilty, proper sentence can be passed against him". In view ofsuch decision, it would not be fair and just to enhance thesentence as it would be clearly violative of Article 21 of theConstitution. It is possible that respondent might have beeninduced to plead guilty under certain circumstances or a promiseor assurance being given to him either from his advocate or fromother sources to which he might have reposed trust. Hence, asmade clear by the Supreme Court in the above referred decision,the case should be sent back for fresh trial setting aside theconviction and sentence. In this case, therefore, the convictionand sentence will have to be set aside the case will have to beremanded to the Trial Court for hearing and disposal inaccordance with law afresh. In the result, the appealenhancement has to be dismissed, but for the reasons statedhereinabove, the judgment and order of conviction and sentencewill have to be set aside. Accordingly, I dismiss the appeal setaside the judgment and order of conviction,and order to remandthe case to the Trial Court for hearing and disposal inaccordance with law. The learned Magistrate shall, take up thecase for hearing afresh, and affording reasonable opportunitiesto both the parties, dispose of the case in accordance with law.

5. The parties to appear before the lower Court on 18thDecember, 1995.