CR.A/418/1989 of STATE OF GUJARAT Vs HARISHBHAI KANCHANBHAI MANAGER on 24 November 1995

ORAL JUDGMENT:

The respondent came to be convicted of the offence underSection 21(1)(4)(c) and Section 92 of the Factories Act, andsentenced to a fine of Rs.250/- in default simple imprisonmentfor 25 days more by the then learned Judicial Magistrate, FirstClass at Veraval delivering the judgment on 25th May 1989 inCriminal Case No. 184 of 1989 with the result the State haspreferred the appeal for enhancement of the sentence.

2. In brief, it is the case of the prosecution that therespondent accused is the Manager and In-charge of the affairs ofthe factory named and styled "B.M.G. Fisheries" at Veraval. On4th November 1988 Devsi Ramji one of the workers whiledischarging his duties sustained serious injuries becausenecessary safeguards around the machine were not provided andthat worker was put to hazards owing to unguarded part of the machinery. Because of the injuries the right hand of the workerhas been cut off, and he will have now to pull on with amputationwhich would hamper him all through out his life in attending hisdaily routine. The Factory Inspector having come to know aboutit prepared necessary papers and then lodged the complaintagainst the respondent before the learned Judicial Magistrate,First Class at Veraval. A plea was taken and respondent pleadedguilty. Hence the learned Magistrate held him guilty acceptinghis plea made voluntarily and sentenced him aforesaid. Theprosecution found that a lenient view was taken. Looking to thegravity of the offence and liability of the entrepreneur harshpunishment ought to have been inflicted and the respondent oughtnot to have been let off by such a ridiculous punishment andtherefore the present appeal has been filed.

3. Mr. Divetia, the learned Additional Public Prosecutorrepresenting the appellant submitted that when a very lenientview is taken by the learned Magistrate below without there beingany mitigating circumstance this Court might heavily come downupon the respondent looking to the gravity of the offence, andenhance the sentence which would be commensurating with thegravity of the offence. Mr. Kapoor, the learned Advocaterepresenting the respondent with full vigour submitted that itwas not just and proper on the part of the prosecution to preferthe appeal and pray for enhancement when once under a particularbelief ofcourse having regard to the then prevailingcircumstances the respondent pleaded guilty. The prosecutionbetter may abstain from taking advantage of the plea once made bythe respondent admitting the guilt.

4. I see great force in the submission made by Mr. Kapoor.A similar question arose in the case of Thippeswamy vs. State ofKarnataka-AIR 1983 Supreme Court 747 before the Apex Court andwhile dealing with the question, it has been held "Where byreason of plea bargaining the accused pleaded guilty and wasconvicted and sentenced by Magistrate acting upon his plea ofguilty, the enhancement of sentence by the appellate orrevisional Court in appeal or revision by acting on plea ofguilty would not be reasonable, fair and just. It would beclearly violative of Article 21 of the Constitution to induce orlead an accused to plead guilty under a promise or assurance thathe would be let off lightly, and then in appeal or revision, toenhance the sentence. The Court of appeal or revision should, insuch a case, set aside the conviction and sentence of the accusedand remand the case to the trial Court so that the accused can,if he so wishes, defend himself against the charge and if he isfound guilty, proper sentence can be passed against him". Inview of this decision, it would not be just and proper on thepart of the prosecution to press for enhancement. It would bebetter if the matter is remanded back for fresh trial so that therespondent and prosecution both may have ample opportunity to submit their respective case and have the result on merits. Inview of such law made clear by the Apex Court, in this case, thejudgement and order, convicting the appellant will have to bereversed and the matter will have to be sent back for freshtrial. The appeal therefore will have to be dismissed, but orderof remand has to be passed. In the result, the appeal isdismissed. However, the judgment and order passed convicting andsentencing the respondent are reversed and the matter is orderedto be sent back to the lower Court for hearing and disposalafresh. The learned Magistrate below shall give reasonableopportunities to both and hearing both the parties shall decidethe case in accordance with law. The parties to appear beforethe lower Court on 12th December. 1995.