P L D 1960 Dacca 213 (PLP)

"Accused Feroz Mia present. Offence explained. He pleads guilty. Accused found guilty, convicted under section 58 of

1. M. P. V. Act. 1917, and sentenced to pay a fine of Rupees 450 (Rupees four hundred and fifty), in default to suffer S. I. for one month."

4. The petitioner in Criminal Revision No. 597 of 1958 was the serang of a motor launch called "Halim". His launch was found carrying 291 passengers instead of the permitted capacity of 130 passengers. He too was tried by the same Mobile Court on the same day, namely, the 16th of July 1958, and in his case also a similar order was recorded. The order is set out below:‑

"Accused Kala Mia present. Offence explained. He pleads guilty. Accused found guilty and convicted under section 58 of I. M. P: V. Act, 1917, and sentenced to pay a fine of Rs. 1,610 (Rupees one thousand and six hundred and ten only), in default to suffer S. I. for two months."

5. These petitioners, however, went up on appeal against the said order of conviction and sentence and in the case of the peti tioners in Criminal Revision No. 596 of 1958 it was contended before the Appellate Court that neither of the petitioners admitted overloading, nor pleaded guilty to any offence charged. In fact, they did not know what was happening, as they could not follow the proceedings of the Court. Petitioner No. 2 in the said matter further contended that it was impossible for him to plead guilty because he had no connection whatsoever either with the motor launch "Rezia Khatun" or with the owner of the said motor launch. Indeed, he claimed that he was not on the launch at all on this particular day, when the alleged offence is said to have been com mitted, nor did he know as to what was the sanctioned capacity of the said motor launch.

6. In the case of the petitioner in Criminal Revision No. 597 of 1958, however, in the Appellate Court the appeal was pressed only on the ground of sentence, as recorded by the learned Sessions Judge, and the appeal succeeded to that extent. The learned Sessions Judge reduced the fine, as he considered the fine imposed by the Mobile Court to be in excess of its jurisdiction.

7. The learned Sessions Judge, however, dismissed the appeal of the two petitioners in Criminal Revision No. 596 of 1958 holding that, in view of the record of the learned Magistrate, the defence contention that they did not plead guilty cannot be accepted, even though he too felt that it would have been well if the learned Magistrate would have recorded in full the questions put to the accused and the answers given by them.

8. These applications in revision against the above orders of the Appellate Court are now pressed before me on the common ground that the learned Magistrate acted illegally in not complying with the provisions of section 243 of the Code of Criminal Proce dure by failing to record as nearly as possible in the words used by the accused persons their alleged admissions. They have been heard together, as the same point of law is involved in both the cases.

9. It is urged that the record "Offence explained. The accused pleads guilty" is no compliance at all with the require ments of this section. It is merely a record of the conclusion arrived at by the Magistrate of the alleged admission of the accused persons.

10. In support of this contention, the learned Advocate has relied on the decision in the case of Mukandi Lal v. State through Municipal Board (A I R 1952 All. 212) and the decision in the case of Ganesh Chanrlra Khan & Sons v. The Corporation of Calcutta (36 C W N 132). In both these cases it was held that a conviction without the taking of any evidence and purporting to be based on a plea of guilty cannot be sustained when the accused denies having pleaded guilty and tile said plea is not found recorded in accordance with the provisions of section 243 of the Code of Criminal Procedure.

11. It seems to me that this contention must prevail in the case of the petitioners in Criminal Revision No. 596 of 1958. The provision in section 243 of the Code of Criminal Procedure for the recording of the admission of the accused as nearly as possible in the words of the accused is a salutary provision designed to enable not only the trying Court but also the superior Court to know that the accused understood that he was really pleading guilty to the offence charged. In the facts of the present case, if it be true that accused‑petitioner No. 2 in Criminal Revision No. 596 of 1958 was present in the Mobile Court merely as a person interested in watching the proceedings of the Court having no connection whatsoever with the launch which was alleged to have been over loaded, it is difficult to appreciate how he could have pleaded guilty to any offence.

12. Had the question actually put by the Magistrate been recorded together with the actual answer to the question in the words of the accused person, then this Court would have been in a position to see what actually the Magistrate said and the accused answered. There could have been no serious or unsurmountable difficulty in making a record of this kind even by a Mobile Court.

13. The learned Advocate appearing for the State has frankly conceded that he cannot support the action of the Magistrate in the present case. In the case, however, of the petitioner in Criminal Revision No. 597 of 1958, he has contended that notwith standing the same defect in the order of the Magistrate, his application in revision should not be entertained in so far as he did not press this ground in the Court of Appeal below, as was done by the petitioners in Criminal Revision No. 596 of 1958. In the Court of Appeal below, it appears that the appeal of the peti tioner in Criminal Revision No. 597 of 1958 was only pressed on the ground of sentence. 14. 1n this latter case, the Mobile Court has also recorded that there were 219 passengers being carried by the motor launch `Halim' as against the sanctioned capacity of 130 passengers. This also clearly shows that in the case of this launch the plea of guilty was a probable and reasonable plea to take. It may well be that for this reason the appeal was only pressed in the Court of Appeal below on the ground of sentence.

15. For these reasons, I am in agreement with the learned Advocate appearing for the State that the Rule in Criminal Revision No 597 of 1958 should be discharged and that I should not inter fere in the matter. But, so far as the Rule in Criminal Revision No. 596 of 1958 is concerned, I see no other alternative but to make the Rule absolute, set aside the conviction and sentence of the accused‑petitioners and direct that they be re‑tried in accor dance with law by some other competent Magistrate having jurisdiction in the matter. K. B. A. Rule made absolute.