ORDER
K.J. Vaidya, J.
1. “Whether any accused hopefully expecting that he would be let-off with the lighter sentence, and accordingly in the process while pleading guilty, he also cleverly puts forward some more facts and circumstances either by way of explaining away, or justifying the alleged wrong committed by him in order to further influence the mental process of the learned Magistrate while awarding the sentence, then whether such composite plea of guilt and innocence could be said to be a “plea of guilty” at all? And if not, then whether by accepting such mixed-up pleas of guilt and innocence, blowing hot and cold, the trial court can be permitted to short-circuit the trial by straightway jumping to pass the order of conviction and sentence in utter disregard to the prosecution?” These two are the material questions surfacing discussion in this matter calling for determination from this Court.
2. Few relevant facts – According to Mr. K.P. Nathwani, Factory Inspector, Rajkot, when he visited ‘Jangleshwar Industries’ at Morbi on 15-3-1988, it was found out that the working condition in respect of providing Latrines and Urinals for male and female workers were not in existence and thereby its partner – Dineshchandra Haribhai had contravened the provision contained in Section 19(1) of the Factories Act, 1948 (for short “the Act”). Further, according to the Factory Inspector, on earlier occasion also, that is to say on 17-2-1987, when his collegue Mr. D.A. Patel, Factory Inspector had inspected the very factory, it was found that the very same provision contained in Section 19(1) of the said Act was contravened and accordingly on the respondent coming to be tried in Criminal Case No. 888/87, on his pleading guilty, was sentenced to pay fine of Rs. 100/- only by an Order dated 10-9-1987. Thus, according to the factory Inspector, since the present contravention of Section 19(1) of the Act. was repeated within the span of two years, the offence stood punishable under Section 94 of the said Act which warrants imposition of enhanced penalty of minimum sentence of fine of Rs. 10,000/-. On the basis of these facts, the Factory Inspector filed a complaint against the respondent-accused under Section 19(1) read with Section 94 of the Act, before the learned Magistrate, Morbi. This came to be registered as Criminal Case No. 578 of 1988 wherein the respondent was served with summons and ordered to face the trial for the alleged offence before the Court.
3. On the respondent appearing before the Court he pleaded-guilty by submitting a written purshis (Exh. 11) dated 8-2-1990, admitting therein that he was previously tried for the offence under Section 19(1) of the Act in Criminal Case No. 888 of 1987 wherein on pleading guilty on 10-9-1987 was sentenced to pay fine of Rs. 100/- only. Further according to the respondent, when the Complainant – Factory Inspector visited his factory, the Latrines and Urinals in question were ready but for the cement plaster which was not made, and before the same could be completed, Factory Inspector visited the factory and that is how it is alleged that he had contravened the provisions contained in Section 19(1) of the Act. Further according to the respondent, now both the Latrines as well as Urinals have been duly plastered and completed, the statutory requirements under Section 19(1) were duly complied with. It is further stated by the respondent that his financial condition at the relevant time was not good and that he was having a small factory. The trial court accepting the aforesaid account alongwith the plea of guilty convicted the respondent for the offence alleged against him and sentenced to pay fine of Rs. 500/- only and in default, to undergo further S.I. for 30 days, giving rise to the present appeal.
4. Mr. D. K. Trivedi, the learned PP appearing for the Appellant-State while severly criticising unduly lenient order of sentence, submitted that the same was ex-facie contrary to Section 94 of the Act, wherein the minimum sentence provided is Rs. 10,000/-. Mr. Trivedi further submitted that the fact remains that on the day when Factory Inspector visited the factory, Latrines and Urinals were not in existence. Mr. Trivedi further submitted that undisputedly the offence in question was the second one during the span of two years, and in this view of the matter, according to Mr. Trivedi, merely because the respondent at the time of trial while pleading guilty came out with a case that “but for the plastering of both Latrines and Urinals were ready”, the same was not a valid reason for taking lenient view of the matter while awarding the sentence. Mr. Trivedi thereafter invited attention of this Court to purshis (Exh. 12) dated 8-2-1990 wherein the Factory Inspector has reported that as per the orders of the Court on 30-2-1990, the requirement as regards Latrines and Urinals have been complied with by the respondent. Mr. Trivedi further submitted that there is nothing on the record to show that when the Factory Inspector earlier visited the factory on 15-3-1988, the Latrines and Urinals were ready. On the basis of the above submissions, Mr. Trivedi finally urged that since the respondent has pleaded guilty to the charge that is to say of having repeated the offence second time within the span of two years, he should have been visited with heavy fine as provided for in Section 94 of the Act.
5. Now, no doubt it is true that the respondent in his purshis (Exh. 11) has clearly admitted that earlier he was convicted and sentenced for the alleged offence under Section 19(1) of the Act, and thereafter also, he is once again alleged to have committed the same offence under Section 19(1) of the Act. But so far as the second offence is concerned, taking into consideration the side-by-side defence put-forward by the respondent viz., ‘that but for the plastering of the latrines and urinals, the same were ready,’ it cannot be said that he has pleaded guilty to the charge. In fact, looking to the overall tenor of written purshis under the apparent disguise of pleading guilty and soliciting lighter sentence, the respondent has also advanced defence denying the guilt. When such is the manifest position, it cannot be said that the respondent has pleaded guilty to the second offence. And indeed, moment we reach this conclusion that the plea of guilty was qualified and not absolute, in that case, the proper course for the trial court was not to accept the plea but to proceed with the trial. Thus, the trial court having entirely misconceived the factual and legal position and was not justified in accepting the alleged composite plea of guilt which was nothing less than accepting the defence of the accused straightway, without giving any opportunity to the prosecution to rebut the defence raised, short-circuiting the trial to the greatest prejudice of the prosecution by jumping to impose the sentence of fine of Rs. 500/-, as stated above. In fact, when the prosecution had come out with a definite case of the respondent having repeated the same offence and accordingly liable to be punished for the enhanced penalty under Section 94 of the said Act, the written purshis (Exh. 11) submitted by the respondent under the guise of ‘pleading guilty’ should not have been heeded to at all. Any version of the accused by way of ‘pleading guilty’ if it contains the element of defence and justification of the wrong committed by him then the same cease to be the ‘pica of guilty’. Merely because the accused wraps-up the defence version with outer cover of ‘plea of guilty”, the same does not and simply cannot automatically become the ‘plea of guilty’. The accused can be said to have pleaded guilty only and only when he pleads guilty to the facts constituting ingredients of the offence without adding anything external into it. However, while doing this, if he also cleverly introduces the element of defence and justification towards the alleged wrong committed by him, then such a composite plea of guilty no more remains the ‘plea of guilty’ and therefore, the trial court has got to proceed further with the trial by recording prosecution evidence. This material aspect unfortunately has been completely lost sight of by the trial court in the instant case, resulting into serious prejudice to the prosecution. Under the circumstances, taking into consideration Exh. 12, it cannot be said that the respondent has pleaded guilty.
6. Now at this stage, it may also be clarified that the learned PP is. not right when he submits that by virtue of Section 94, since the respondent repeated the very offence, he was liable to be invariably punished with the imprisonment for a term which may extend upto 3 years or with fine which would not be less than Rs. 10,000/- which may be etended upto Rs. 2,00,000/-. It appears that while making this submission, the subsequent provision Under Section 94 of the Act have been clearly lost sight of which says ” provided that the Court may, for adequate and special reasons mentioned in the judgment impose fine less than Rs. 2.00/- (Emphasis supplied). Now, therefore, on the point of sentence even in cases of repeated offences depending upon the adequate and special reasons pleaded and ultimately found to be reasonable enough to be accepted, it is always within the discretionary powers of the learned Magistrate to impose fine of less than Rs. 2,000/-.
7. In this regard, once again turning to the facts of the case, it appears that the following circumstances might have weighed upon the mind of learned Magistrate while imposing the sentence of fine of Rs. 500/- only. They are -(1) The respondent has pleaded guilty; (2) that he has assured that he would not repeat the offences in future; (3) That his financial condition was not. good; (4) That the offence committed by him was quite ordinary; (5) That the second offence in respect of which the present complaint came to be filed, at that time, infact the work of constructing the Latrines and Urinals was going on and as per the report (Exh. 12) of the Factory Inspector, by the time respondent pleaded guilty, the said requirements have been duly complied with, meaning thereby the respondent did intend to comply with the statutory requirements of the workers.
7.1 Now none of the aforesaid grounds, if closely scrutinised, have any substance worth the name. Taking the first ground of the respondent, it is clear from the discussion made above that the said plea of guilty was not pure and simple but was a composite one, and under the circumstances, strictly speaking, the same cannot be said to be a ‘plea of guilty’ and further therefore there was no question of accepting the same. Similarly, the second ground is also of no consequence, as it appears from the record that though the respondent was earlier convicted and sentenced for the very same offence, thereafter for more than a year, he has not cared to construct the Latrines and Urinals, which clearly speaks of the defiance of law by the respondent, therefore, such assurance of respondent cannot be accepted at its face-value. With regard to the third ground, the respondent has not produced any Pass-book, Income-tax returns and/ or any other relevant documents alongwith the affidavit to show that he was intact financially hard-pressed. With regard to fourth ground, it may be stated that not to comply with the requirements of providing Latrines & Urinals to the workers even after being convicted and sentenced for the same offence earlier, and further to repeat the said offence cannot be said to be an ordinary offence. Similarly, the fifth ground also cannot be considered to be the defence as the fact remains that when the Factory Inspector visited the factory on 15-3-1988, the Latrines and Urinals were not in existence. Thus, if at all the respondent wanted to plead guilty, he should have pleaded guilty or not at all. The way in which he along with the plea of guilty rolled in one, his defence version also completely distroy the character of the plea of guilty. No plea of guilty can be accepted which is qualified by ‘ifs’ and ‘buts’ as the same ceases to be the ‘plea of guilty’. Thus, none of the grounds pleaded in support of taking the lenient view of the matter have been in fact made out. It is not that for adequate and special reasons, the learned Magistrate can not award less than the minimum sentence of fine as provided in Section 92 of the Act, but then there must be at least something tangible enough on record to satisfy the judicial conscience on the said count before any discretion could be lawfully exercised in favour of the respondent. Merely saying that there are ‘special and adequate grounds’ as asserted by the respondent and in absence of anything further in support of the same to be accepted by the Court, cannot be said to be the valid exercise of the judicial discretion. Whenever any question arises for taking lenient view of the matter for awarding less than minimum sentence prescribed, then in that case, first of all the accused must plead those ‘adequate and special reasons’, and therefore, he should make good the said reasons by leading some tangible dependable evidence. Not only that but thereafter also, the prosecution should be given reasonable opportunity either to affirm or deny the grounds pleaded as ‘special and adequate’ by verifying the material. And last but not the least, as far as Court is concerned, while exercising its discretion to award less than the minimum sentence prescribed, it should first of all see that all the aforesaid hurdles are crossed and cleared and find out whether in fact the alleged ‘adequate and special’ grounds pleaded for taking lenient view in fact are duly made out and they are found to be genuine and convincing. In substance, mere assertions of the respondent by way of ‘special and adequate reasons’ praying for lenient sentence, the same by themselves are not sufficient. In fact, in such cases, it is the duty of the Court while awarding the sentence to closely scrutinize and examine ‘adequate and special reasons’ put forward by the respondent for the simple reason that if that much vigilance is not exercised, then it is very likely that the accused may cleverly dupe the Court and escape with the light sentence with tongue in his cheek’. This will frustrate the very penal object of the Act which otherwise warrants quite strict and stringent view to be taken by the Court.
8. Thus, taking into consideration the overall facts and circumstances of this case, it would be absolutely illegal and unjust on the one hand to accept the alleged ‘plea of guilty’ and to enhance the sentence and/or at the same time, to dismiss the appeal in light of the defence. Thus, having regard to the facts and circumstances of the case, this is a matter which deserves to be remanded to the trial Court for de novo trial to be disposed of on merits according to law. It may be pointed out that while deciding such cases, all the learned Magistrates should bear in mind the guidelines enunciated in a decision of this Court rendered in case of the State of Gujarat v. Dr. C.K. Patel, reported in 1991 (32) 2 Guj LR 995.
9. In the result, this appeal for enhancement of sentence fails and is dismissed and the matter is remanded to the trial court for de novo trial. Having regard to the fact that the alleged offence is of the year 1988, Mr. D. K. Trivedi, learned PP undertakes to inform the Factory Inspector to appear before the trial court on 7-4-1993 to take further date for the trial and serve direct notice on the respondent.