CR.A/283/1989 of STTE OF GUJARAT Vs PATEL CHAGANLAL NARAN on 1 December 1995

ORAL JUDGMENT:

The then learned Judicial Magistrate, First Class atManavadar, delivering the judgment on 6th February 1989 inCriminal Case No. 25 of 1989 on his file, convicted therespondent of the offence under Section 61 of the Factories Act,1948, for committing the breach of Rule 87 of the GujaratFactories Rules, 1963, and sentenced him with a fine of Rs.50/-,in default two days simple imprisonment more. The State haspreferred this appeal for enhancement of the sentence.

2. Shortly stated, the facts leading 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 87 was also committed. It was also noticed that as requiredby Section 108(2) of the Factories Act the notice givingparticulars about the adult workers was also not displayed and asper Section 42 of the Factories Act adequate and suitablefacilities for washing were not provided to the workers. Therespondent as found had also committed the breach of Section22(1) by not maintaining the registers. As such breaches on thepart of respondent were found and because of those breaches,penal provisions were attracted, the Factory Inspector preparednecessary papers for prosecuting 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 and explainedto him, he, pleaded guilty and prayed for mercy. The learnedMagistrate accepted the plea of guilty being made voluntarily,and on that plea, convicted and sentenced the respondent ashereinabove stated. The appellant then thought that the sentenceinflicted was nothing but a mockery of justice. The punishmentwas not commensurating with the gravity of offence and thereforethe present appeal has been filed before this Court forenhancement.

3. Mr. Divetia, the learned Additional Public Prosecutorappearing on behalf of the appellant, submitted how the learnedJudge took a very lenient view though gravity of the offencerequired to take a harsh view. He urged to heavily come downupon such wrong-doers playing mischief with the health, welfareand safety of the workers. On behalf of respondent, no oneappeared though sufficient time was granted and matter wasadjourned 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 lighter view, in appeal, the duty of the Court is to takejust and proper view in the circumstances and pass the sentencecommensurating with the gravity of the offence. However, in thiscase, it would not be possible for me to accept the submissionmade on behalf of the State because of the decision rendered bythe Apex Court. The principle which has been laid down in thatdecision is exactly applicable to the present case. It may bementioned that respondent pleaded guilty and thereafter the Statehas preferred the appeal for enhancement of the punishment. Whatshould be done if that is the case was the point raised beforethe Supreme Court in the case of Thippeswamy vs. State ofKarnataka - AIR 1983 Supreme Court 747, wherein it is held :"Where by reason of plea bargaining the accused pleaded guiltyand was convicted and sentenced by Magistrate acting upon hisplea of guilty, the enhancement of sentence by the appellate orrevisional Court in appeal or revision by acting on plea of guilty 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 such decision, it would not be fair and just to enhancethe sentence as it would be clearly violative of Article 21 ofthe Constitution. 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,set aside the judgment and order of conviction, and order toremand the 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, shall dispose of the case in accordance withlaw.

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

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