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Gujarat High Court
Judgename :K.J.VAIDYA
V.K.BHATT,provident FUND INSPECTOR - Appellant
Versus
ARYODAYA ginning MILLS LIMITED, AHMEDABAD - Respondent
CRIMINAL REVISION APPLICATION 148 of 1995
Decided On : 06/22/1995
If despite the High Court and the Apex Court of the country deprecating the said practice of illicit "plea-bargaining" as illegal and unconstitutional in unmistakable terms which is even otherwise first and elementary thing, duty, principle to be known, scrupulously taken care of and religiously observed by any Magistrate worth the name, and yet if the same shamefully is not to be paid any heed to mend, amend or improve its ways and instead obstinately the concerned learned Magistrate is to persist therein in the most unjudicial manner, the time has indeed come to seriously consider and take stern, deterrent action against the deliberate defiance of the Law by the concerned Magistrate in order to restore, maintain and uphold the respect, dignity and the honour in the first instance, of the Parliament which enacts the Law, in the second instance of the particular "Act" & "Law",and in the third instance, the overall faith of people in the "Administration of Justice" !! It is the bounden duty of this Court, as a Constitutional Functionary to point out to them making conscious of their slippery unjudicial tendency and trend regarding the illegal, unjust and perverse manner in which the trials are so short-circuited either by acquitting the accused on the common grounds such as that the complainant not present when the matter was called out, and/ or accepting the fraudulent pleas of guilty, entering into illicit plea-bargaining and thereby letting -off the accused softly by just patting/imposing the flea-bite sentence, which is shamefully low, and therefore, patently unjust, illegal,
[Para 1]
(b) Criminal Procedure Code, 1973 - Sec. 206 - Procedure under - Scope - Same not applicable in serious offences as the one under P.F. Act, mere particularly when statute has prescribed the minimum sentence.
It is quite true that by virtue of Section 206 (Special) Summons in cases of petty offences) in the Criminal Procedure Code, 1973, some provisions have been made by virtue of which even when the accused is not present before the Court., in petty cases, he can plead guitly by submitting the purshis through his learned advocate. In some petty cases, this may be permissible but in serious offences; as the one under the P.F. Act, more particularly when the statute has prescribed the minimum sentence and further when the less than the said statutory minimum sentence could be imposed, if the accused makes out adequate and special reasons, this is not permissible simply because while recording the plea of guilty, the learned Magistrate is supposed to read-over the charge and explain the same to the accused in the Court -room.
[Para 9]
(c) Trial - Recording of plea of guilty in absence of accused - Not legal or permissible in trial of offences under P.F. Act where minimum sentence has to be awarded unless of course some adequate & special grounds are made out by accused for said purpose.
In these cases for the alleged offences under Section 14 (1-A) and 14 (1- B) of the P.F. Act, the minimum sentence is provided, the Court is expected to further explain that even if the accused pleads guilty, minimum punishment provided under the statute would be acoarded and that there is no alternative left with the Court but to impose the said minimum sentence unless of course adequate and sepcial grounds for same is made out for imposing less than the minimum !! Now this cannot be done unless accused is personally present before the Court !! In case, the learned Magistrate was to impose statutory minimum sentence of imprisonment and fine and that was made clear to the accused then in that case, perhaps the accused might have given second thought to pleading guilty and would have denying the charge levelled against him loved to be be tried by taking chances for the acquittal !! In this view of the matter, it is not permissible to the learned Magistrate to record plea of guilty in absence of the accused. While recording the plea of guilty in such type of cases, the presence of the accused before the Court is must. The alleged offences under the P.F. Act cannot be said to be petty offences by any stretch of imagination, wherein in absence of the accused, the learned advocate can plead guilty ! Such plea of guilty having no legal basis could never have been offered and accepted !
[Paras 9 & 9.1]
(d) Provident Fund Act - Directors - Liability for failure to discharge legal obligation under the Act - Held, directors were liable for the failure - Plea that they were servents of respond Mill and were in critical financial condition is of consequence - They should have better resigned from the Mill, but can not be permitted to take defence against interest of workers.
The accupier or the Directors were mere servants of the respondent-Mill, and that they were in a critical financial condition, is also of no consequence. The reason is that the occupier and/or the Directors must know that so far as the statutory liability is concerned, it is their first and foremost duty to seed that the statutory requirements are duly complied with. If in case they feel that the Mill was not in a position to discharge its legal obligation under the P.F. Act,they should have better resigned from the Mill, but cannot be permitted to take defence against the interest of workers that since the Kill was in a critical financial condition. the P.F. amount could not be deposited moment they are found to be in the charge and control of the affairs of any of the Company !!. The duty of the Manager of for that purpose of even other person/s in charge and control of the management affairs of the mill is towards the statute first viz., P.F. Act and in case when default is knowingly committed no such defence as pleaded here in the present group of cases are available. In fact, having once already deducted some amount from the wages of the employees, under no circumstances they can be permitted to work against the interest of the workers, therefore, they cannot be permitted to take defence that the P.F. amount could not be deposited because of stringent financeial condition of Mills.
[Para 9.5]
(e) Vade Mecum - Plea bargaining - Ways & means laid down whereby such illegal practice could be eradicated right from its grassroot level once and for all.
The illicit practice of "plea-bargaining " has not come to an end yet and is perhaps not likely to come to an end that easily to the desired extent for very many reasons, it appears that some way indeed is required to be found out whereby it could be eradicated right from its grass-root level once and for all. Accordingly, what occurs to this court is laying down some conditions as condition precedent for the accused to submit the pushis at the time of pleading guilty. If that is done and scrupulously followed, in all probability neither the accused would dare even to pretend to plead guilty, nor the Court haunted by disposal mania would wander away from its judicial path in acepting the same by imposing flea-bite sentence. sometimes inadvertently may be sometime advertently even in not imposing the statutory minimum sentence prescribed under the Act. Accordingly, it is hereby ordered that - " No Court shall accept the "plea of gulty" tendered by the accused person more particularly in cases where in the staute has prescribed the minimum sentence unless and untill he submits the purshis in the specimen form prescribed hereunder for pleading guilty alongwith the adequate and special reasons if any for taking a lenient view of the matter, in the matter of awarding sentence."
[Para 12]
( 1 ). Once again the very same squalid, shocking, disgraceful and disgusting old tale of woe and pity, of fraud and the dereliction of duty, the patent modus operandi being that of the illicit "plea-bargaining" between the learned magistrate and the accused, resulting into the gross miscarriage of justice. . Once again the law and justice appears to have been perversely made to divorce against their will in the matter of statutory minimum sentence, in total defiance on the one hand of the Law on the point of minimum sentence being crystal clear, and on the other hand of the Courts, i. e. , High Courts and the Supreme Court, repeatedly deprecating this unholy practice of "plea-bargaining", the same is not given up. If despite the High Court and the Apex Court of the country deprecating the said practice of illicit "plea-bargaining" as illegal and unconstitutional in unmistakable terms which is even otherwise first and elementary thing, duty, principle to be known, scrupulously taken care of and religiously observed by any Magistrate worth the name, and yet if the same shamefully is not to be paid any heed to mend, amend or improve its ways and instead obstinately the concerned learned Magistrate is to persist therein in the most unjudicial manner, the time has indeed come to seriously consider and take stern, deterrent action against the deliberate defiance of the Law by the concerned Magistrate in order to restore, maintain and uphold the respect, dignity and the honour in the first instance, of the Parliament which enacts the Law, in the second instance of the particular "act" and "law" and in the third instance, the overall faith of people in the "administration of Justice". In absence of these neither any Law nor Justice nor even for that purpose the Constitution will have any respect, any future or authority in the Society. We do not want our "administration of Justice" to be condemned and exposed to a vulnerable situation where the people may some day openly allege remarking that "they (learned magistrates) have hearts but understand not with them. They have eyes but perceive not with them. They have ears but they hear not with them. . " And accordingly, once the Court finds in any case where the learned Magistrates despite they having hearts but did not understand with them, they having the eyes but did not perceive with them, they having ears but yet they did not hear with them and going astray pass any judgment and order as capriciously and perversely as they like, then it is the bounden duty of this Court, as a constitutional functionary to point out to them making conscious of their slippery unjudicial tendency and trend regarding the illegal, unjust and perverse manner in which the trials are so short-circuited either by acquitting the accused on the common grounds such as that the complainant not present when the matter was called out, and/or accepting the fraudulent pleas of guilty, entering into illicit plea-bargaining and thereby letting-off the accused softly by just patting/imposing the flea-bite sentence, which is shamefully low, and therefore, patently unjust, illegal, as has been done in the instant cases. This Court is indeed quite clear in its concept as regards its role as the "constitutional functionary", which is surely not only confined merely to decide the constitutional issues and or to appreciate the evidence or interprete any provision of law one way or the other and then without caring for anything to pronounce the verdict on the limited question of facts and the Law only. Rather whenever this Court has an occasion to come across any persistent, patent illegalities and perversities, eclipsing public interest, resulting into the gross miscarriage of the justice, the same is not only required to be merely quashed and set aside but it is also further required to be point-blank criticised in so many words of the attitude, method and manner of the concerned learned Magistrate and also
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