New Raginaya Goods Mart and Another vs State

S.M. Fazl Ali, J.—These are two revision applications against the orders of the Court below convicting the petitioners u/s 268 of the

Municipal Act and sentencing them to a fine of Rs. 50/- and Rs. 35/-.

The prosecution case was that on 22-10-59 the petitioners had stocked the fruit cases on the court road causing obstruction to the traffic

thereby. When the petitioners were brought before the Court, the Magistrate does not appear to have explained title substance of accusation to

them, as required under the provisions of Section 242 Cr.PC. The Magistrate, however, recorded a plea of guilty in which the accused merely

stated that he had deposited certain fruit cases on the road. The Magistrate) convicted the petitioners on the basis of the plea of guilty as referred

to above.

In my opinion, the conviction as also the sentence imposed on the petitioners cannot be maintained. It is well settled that before a Court can

convict an accused person merely on his admission, the admission must be of the offence alleged. In other words, the accused must admit in clear

terms all the facts constituting the offence, only then he is liable to be convicted on a plea of guilty. In this particular case, the offence alleged,

consists of two essential ingredients.

(i) That certain articles should have been deposited in a public street.

(ii) That such an act of depositing these articles must have been without permission of the Executive Officer.

This is the logical analysis of the provisions of Section 207 Clause C and Clause 2 of the Municipal Act which the petitioners are alleged to have

contravened. The prosecution did not lead any evidence at all on the question as to whether the accused had got any permission for depositing

these articles. It is therefore clear that the accused did not admit the offence itself, but had admitted only one ingredient of the offence, namely, the

deposit of the articles. It was incumbent, therefore, on the prosecution to have proved affirmatively that there was no written permission to the

accused to deposit these articles. If the prosecution failed to prove even one of these ingredients the prosecution case was entitled to fail.

Mr. Advocate-General submitted that as the accused pleaded guilty to the charge, it was not necessary for the prosecution to lead evidence on

the question as to whether the accused had a written permission or not to deposit these articles. I am however, unable to agree with this

contention. When an offence consists of two essential constituents, the prosecution has got to prove those constituents and mere plea of guilty

cannot take place of proof by the prosecution. Moreover, strictly speaking the plea recorded by the learned Magistrate, is not really a plea of

guilty because it is not an admission of the guilt, but only an admission of of one of the facts which go to constitute an of fence.

I might further observe that the learned Magistrate has conducted this case in a most perfunctory manner and has not at all paid any regard to

the provisions laid down by Section 242, Cr. P.C. It is true that the case, as the one with which we are dealing, is triable summarily, but this does

not mean that the Magistrate should flout the mandatory provisions of law. I have not been able to find anything on the record to indicate that the

learned Magistrate had complied with the provisions of Section 242 Cr.PC. in explainingi the particulars of offence to the accused. This salutary

principle of law has got to be complied with. The learned Magistrates while conducting summary trials should not act so hastily as to disregard the

salutary provisions of law which are meant to safeguard the interests of the accused. As in this case I am of the view that the prosecution itself has

not proved the ingredients of the offence charged, it is not necessary for me to order a re-trial, for non-compliance, of the provisions of Section

242 Cr. P.C. I however, hope that the Magistrates conducting these trials would be careful in future.

For the reasons given above, the petitions are allowed and the convictions and the sentence of the petitioners for each case are set aside and

they are acquitted of the charges against them. Fine if paid, will now be refunded.