JUDGMENT
T. Vaiphei, J.
1. This criminal revision petition is directed against the order dated 30.7.2005 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 42(3)/2005 upholding the order dated. 27.6.2005 passed by the learned Judicial Magistrate 1st Class, Court No. 6, Agartala, West Tripura in C.R.(V) No. 857 of 2005.
2. I have heard Mr. S. Saha, the learned Counsel for the petitioner and Mr. R.C. Debnath, the learned Public Prosecutor in-charge for the respondent.
3. The case of the prosecution is that on 19.5.2005 at about 21-00 hours, the police received an information to the effect that a Mini Bus bearing TR-01-A-1418 (CD Ride) driven by the petitioner dashed against SPF bridge and accordingly, rushed to the spot and found the driver of the Mini Bus, i.e., the petitioner detained by the local people. The petitioner was alleged to have created disturbance under the influence of liquor. On interrogation, the petitioner could not give any satisfactory reply or produce the registration certificate or his driving licence, whereupon he was arrested under Sections 181/185 of the Motor Vehicles Act, 1988 (‘the M.V. Act’). Thereafter the petitioner was taken to the medical officer of Bamutia PHC, who after examination, certified that the petitioner consumed alcohol and was violent and unable to control himself. On the basis of this finding, the police challaned the petitioner to stand the trial. The petitioner appeared before the learned Judicial Magistrate 1st Class and pleaded guilty to the offence alleged against him. Upon this plea of guilt, the learned Magistrate convicted him under Sections 181/185 of the M.V. Act and sentenced him to pay a fine of Rs. 500 in respect of the offence under Section 181 of the M.V. Act and to undergo S.I. for 10 days in default of payment of fine and also sentenced him to suffer S.I. for 3 months with a fine of Rs. 1,000 and to further undergo S.I. for 15 days in default of payment of fine in respect of the offence committed by him under Section 185 of the M.V. Act. Aggrieved by this, the petitioner preferred an appeal in the Court of the Sessions Judge, West Tripura, Agartala, which was registered as Criminal Appeal No. 42(3)/2005. The learned Sessions Judge by his order dated 30.7.2005 dismissed the appeal holding that he did not find any illegality in the order of conviction and sentence since the appellant pleaded guilty to the charges and that moreover, the case being a petty offence, no appeal would lie against the conviction and sentence in petty offences. This is how this revision petition came to be filed by the petitioner.
4. Mr. S. Saha, the learned Counsel for the petitioner does not question the conviction and sentence upon the petitioner in respect of the offence under Section 181 of the M.V. Act. He, however, vehemently submits that when the petitioner neither admitted his consumption of alcohol at the time of accident nor was any blood test conducted by the medical officer on him, the opinion/report of the medical officer could not be relied upon for convicting the petitioner under Section 185 of the M.V. Act. According to the learned Counsel for the petitioner, for holding any person guilty of the offence under Section 185 of the M.V. Act, the person who drives the motor vehicle must have alcohol in his blood exceeding 30 mg. per 100 ml. of blood, which can be determined or detected only in a test by a breath analyser and such test not having been done in the instant case, the conviction of the petitioner under Section 185 of the M.V. Act is illegal and unsustainable in law. The learned Counsel for the petitioner also submits that the petitioner was given to understand that if he pleaded guilty to the charges, the learned Magistrate would not sentence him to imprisonment but would only impose a fine of Rs. 500 or 50. It is further submitted by the learned Counsel for the petitioner that the learned Magistrate did not utter a single word to the knowledge of the petitioner that he intended to send him to jail for committing the offence under Section 185 of the M.V. Act. In other words, the contention of the learned Counsel for the petitioner appears to be that the plea of guilt by the petitioner, in so far as the offence under Section 185 of the M.V. Act was concerned, was made by him without fully knowing the charges and the implications thereof and that it was only after the pronouncement of the judgment by the learned Magistrate that the petitioner came to learn from his Lawyer as well as the Advocate’s Clerk that he was sentenced to imprisonment for driving the vehicle under the influence of liquor. It is the further contention of the learned Counsel for the petitioner that on coming to know the aforesaid development, the petitioner immediately applied for a copy of the order of conviction and sentence to enable him to prefer an appeal there against. On the other hand, Mr. R.C. Debnath, the learned P.P. in-charge strenuously supports the impugned order and submits that the petitioner was convicted under Section 185 of the M.V. Act and sentenced to three months imprisonment upon his plea of guilt to the offence charged against him and, therefore, no infirmity could be seen from the1 impugned order. He further submits that even if the order of the appellate court holding that no appeal would lie against the conviction of a petty offence is found to be illegal, the impugned order can be sustained on the other part of the conclusion of the appellate court that the conviction did not suffer from any illegality since the petitioner pleaded guilty to the charges.
5. Before proceeding further, it may be appropriate to refer to and reproduce herein below the provision of Section 185 of the M.V. Act:
185. Driving by a drunken person or by a person under the influence of drugs. – Whoever, while driving, or attempting to drive, a motor vehicle, –
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer, or,
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
Shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
6. The aforesaid provision plainly shows that before a person can be convicted for drunken driving, it must be established by the prosecution that the person concerned in the course of driving or admitting to drive a motor vehicle has alcohol in his blood exceeding 30 mg. per 100 ml. of blood which is detected in a test by a breath analyser. In the instant case, admittedly the blood of the petitioner was never tested by a breath analyser. However, the learned Magistrate convicted him on the basis of the plea of guilt made by the petitioner. The question to be determined here is whether the conviction of the petitioner under Section 185 of the M.V. Act without testing his blood by a breath analyser to determine whether the alcohol content in his blood exceeded 30 mg. per 100 ml. of blood but on the plea of guilt made by the petitioner that he consumed alcohol and was unable to control himself is sustainable in law. In my considered view, if the petitioner admits that he was in a drunken state at the time of driving the motor vehicle, it will not be necessary to conduct a test by a breath analyzer to detect whether the petitioner at the relevant time has in his blood alcohol exceeding 30 mg. per 100 ml. of blood. The gravamen of the charge is drunken driving by the accused. If the petitioner in this case knowingly admitted that he was in a state of drunkenness at the time of this incident, the fact that no blood testing was done on him, cannot give him immunity from the penalty of drunken driving. The next question then is whether the plea of guilt of the petitioner was recorded by the learned Magistrate in accordance with law.
7. The procedure for recording the plea of guilt by an accused is provided in Sections 251 and 252 of the Code of Criminal Procedure, which are reproduced herein below:
251. Substance of accusation to be stated. – When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
252. Conviction on plea of guilty, – If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.
8. From the foregoing provisions, it is seen that on appearance of the accused charged in a summons case or when he is brought before a Magistrate, he should be apprised of the substance of the accusation and he must be asked whether he pleads guilty or has any defence to make. The law enjoins that the particulars of the offence must be stated to the accused and the record must show the particulars which were explained by the Magistrate. If it is not explained what the offence is but the accused is simply told of the allegations, the procedure is bad in Law. In other words, it should be made clear to the accused for what he is being tried. However, if the commission of offences is admitted by the accused it shall be recorded at once in his own words and not later from notes or, from memory. If the accused admits the offence, the Magistrate has the discretion to convict him. If the Magistrate does not believe in it or if the admission appears to him to be qualified or if the facts admitted do not appear to amount to an offence, he will proceed to hear the case under Section 254. The record should further show whether the accused admitted only the act or omissions, or admitted them with all the accompanying circumstances necessary to constitute an offence. The accused cannot be convicted on his admission unless the facts admitted amount to an offence.
9. It is against the backdrops of the aforesaid legal principles that I propose to examine whether the petitioner really pleaded guilty to the charges made against him. The substance of accusation made against the petitioner is written in a Bengali language and with the help of the English translation made by the translator of this Registry, I perused the same. The English translation clearly shows that the learned Magistrate fully explained the particular offence of Section 185 of the M.V. Act to the petitioner. The petitioner was not only told of the allegations but what the offence was, i.e., drunken driving was also made known to him. It is not the case of the petitioner that the substance of accusation was not read over to him in a language he understood. It is also not the case of the petitioner that the facts admitted by him did not amount to an offence punishable under Section 185 of the M.V. Act. The record clearly shows that after knowing the particulars of the offence charged against him, he not only pleaded guilty to the charges but also prayed that he be pardoned. Under such circumstances, it cannot be said that the learned Magistrate committed any illegality in recording the plea of guilt of the petitioner. Once the petitioner fully knowing well the charges leveled against him, admitted that he was driving the motor vehicle in question in a drunken state on the date of incident, the fact that more than 30 mg. per 100 ml. alcohol in his blood was not detected in a test by a breath analyser will be inconsequential for the purpose of convicting the petitioner under Section 185 of the M.V. Act.
10. It is true that the offence punishable under Section 185 of the M.V. Act is not a petty offence and appeal will obviously lie from the conviction made thereunder. The term “petty offence” can be understood from Section 376 of the Cr.P.C. Section 376(c) provides that notwithstanding anything contained in Section 374, there shall be no appeal by a convicted person where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees. In the instant case, the petitioner was sentenced by the learned Magistrate to undergo S.I. for three months in addition to fine. This being the position, it is obvious that the learned Sessions Judge grossly erred in law in holding that the appeal does not lie against the conviction of the petitioner. However, this is not the sole ground on which the learned Sessions Judge dismissed the appeal of the petitioner as would appear from the impugned appellate order. The learned Sessions Judge also held that he did not find any illegality in the order of the learned Magistrate since the petitioner pleaded guilty. In my considered view, this part of the order can be severed from the other part of the order and so severed, the impugned appellate order can be upheld on the basis of the other part of the order, namely, there was no illegality in the impugned order since the appellant pleaded guilty to the charges.
11. Insofar as the contention of the learned Counsel for the petitioner that the petitioner without knowing the substance of the charges and their implication wrongly pleaded guilty to the charge is concerned, no credence can be given to this submission. The learned Magistrate has clearly recorded in the order that a separate petition was filed by the petitioner pleading guilty to the charge and that the petitioner was examined under Section 251 of Cr.P.C. stating and explaining to him the nature of accusation made against him in respect of the offence punishable under Sections 181/185 of the M.V. Act. The learned Magistrate also further recorded that the plea of guilt was made by the petitioner voluntarily in the open court and that the petitioner was heard on the sentence in which he prayed that he be shown mercy since it was his first offence. In the face of these materials, I am not inclined to entertain the grievance made by the petitioner in this behalf. The observation made by a court in a judicial proceeding are sacrosanct and, cannot be questioned by a party subsequently and the same is final. On the facts and circumstances of this case, I am of the view that neither the learned Magistrate nor the learned Sessions Judge improperly exercised their jurisdiction calling for the interference of this court.
12. However, in so far as the period of sentence is concerned, it must be noted that the petitioner was about 21 years of age at the time of the commission of offence and that no previous conviction is recorded against him. Coupled with this, no person was injured or fatally injured in the accident in question. On the other hand, considering the fact that he was driving a motor vehicle in a drunken condition, I do not think that this is a fit case for invoking Section 360 of Cr.P.C. Taking all these factors into account, in my view, the punishment imposed upon the petitioner is somewhat harsh and disproportionate to the crime committed by him. In that view of the matter, the ends of justice will be met if the punishment imposed upon the petitioner is modified to the extent that he be sentenced to simple imprisonment of 15 days with a fine of Rs. 2,000, and in default of payment of fine, to undergo further simple imprisonment of 15 days. The fine money, upon payment, shall be utilized for repair of the pillar of the SPF Bridge on Bhamutia road destroyed in the accident. The trial court shall determine the appropriate authority or person responsible for repair of the pillar and upon such determination, deposit the fine amount to him. Order accordingly. The petitioner shall surrender before the learned Judicial Magistrate 1st Class, Court No. 6, Agartala, West Tripura immediately to serve out his sentence. The conviction and sentence of the petitioner in respect of the offence punishable under Section 181 of the M.V. Act shall remain undisturbed.
13. Subject to the above modification, this revision petition is disposed of.