JUDGMENT
K.J. Vaidya, J.
1. Who does not know that the practice of “plea bargaining” under clever camouflage of “plead guily” is nothing but an outrageous affront to the sense and cause of justice? In fact, it is matter of record that somewhere in the year 1973, on coming to the knowledge of this Court that in large number of food adulteration cases, the accused on pleading guilty, were let off with ridiculously low sentences till rising of the Court and some nominal fine, that the then learned Chief Justice was constrained to issue suo motu notices to all concerned accused calling upon them to show cause as to why their sentences should not be enhanced. Thereafter also the said condemened unfortunate practice quite surprisingly and shockingly persists in complete defiance of the provisions of the statute itself and observations made by the higher Courts in their reported judgments. Rather experience whispers in ears that such “plea bargaining” practies have become recurring feature particularly in certain types of Criminal Cases where the same is okayed without any sense of judicial restraint and accountability by some Courts taking it as if that beyond the statutory appellate or revisional jurisdiction of the High Court namely either of quashing and setting aside or modifying the impugned order of sentence, the same had no power to control such disgraceful state of affairs. Indeed it is this challenging posture of “plea bargaining” which impinges upon the conscience of this Court to make some indepth plain speaking about the same with a view to see that the judicial system at level of the trial Court is spared and freed from the said chronic disease of the “plea bargaining”, if that can be done. The heart-burn reflections made hereinabove is also the subject-matter of the appeal at hand, which raises three important questions viz. (i) whether the trial Court has any jurisdiction to award ligher sentence once it is found that the statute has fixed the inflexible minimum sentence for particular offences? (ii) whether the order of “sentenced till rising of the Court” and some fine etc. in response to the accused pleading guilty and praying for mercy more especially in cases where the statute has prescribed the minimum sentence per se amounts to “plea-bargaining”? and (iii) further what indeed ought to be the duty of the trial Court in cases where the accused who is alleged to have committed an offence for which the statute has prescribed the minimum sentence and he at once pleads guilty and prays for mercy–both rolled up in common plea?
1.1 Before this Court undertakes discussion to answer the questions raised hereinabove, let us first of all appreciate the facts, circumstances and law governing the case leading upto the filing of this appeal for enhancement of the sentence.
2. To start with this appeal for enhancement of sentence is directed against the judgment and order dated 26th July, 1983, rendered in Criminal Case No. 793 of 1983 passed by the learned J.M.F.C. Savli, wherein two respondent-accused viz. (i) Thakorlal Keshavlal Rana and (ii) Mafatalal Keshavlal Rana both of whom on pleading guilty to the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (for short the said Act), came to be convicted for the same and each of them were sentenced till rising of the Court and to pay a fine of Rs. 100/-and Rs. 600/- and in default to undergo further S.I. for 15 days and one month respectively.
Briefly speaking on 27th May, 1983, the Food Inspector Mr. K.A. Patel visited “Shital Cold-drink House” belonging to the respondent-accused at Savli and in presence of the Panchas took sample of the ice-cream for analysis. The said sample was thereafter forwarded to the public analyst. Baroda, which on being analysed, was found to be not conforming to the standard and provisions laid under the Prevention of Food Adulteration Rules, 1955. On the basis of these facts, after obtaining the necessary sanction, the Food Inspector filed a complaint dated 8th May, 1983 before the trial Court against the respondent-accused for the alleged offences under Sections 7 and 16 of the said Act.
3. On 26th July, 1983, in response to the process issued against them, both accused appeared before the Court and submitted written prushis Ex. pleading guilty and praying for mercy. The trial Court accepting the said plea of guilty to be voluntary and true, convicted and sentenced both the accused as stated in para-2 of this judgment.
Hence, this appeal for enhancement of the sentence.
Mr. D.K. Trivedi, the learned A.P.P. appearing for the State submitted that the sentence imposed by the trial Court was not only ridiculously low, but the same was also in clear violation of inflexible minimum sentence prescribed under Section 16(1)(a)(i) of the said Act. While making good his submission Mr. Trivedi invited attention of this Court to the relevant provisions of the said Section 16(1)(a)(i) of the said Act, which reads as under:
Section 16: Penalties: (1) Subject to the provisions of Sub-section (1-A) if any person: (a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food:
(i) which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in Sub-clause (i) in contravention of any of the provisions of this Act or of any rule made thereunder, or
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) xxx xxx xxx
he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than one thousand rupees.
Mr. Trivedi further submitted that plea or no plea of guilty, once the trial Court convicts any accused for the alleged offence under the said Act for which the statute has prescribed an inflexible minimum sentence, then it is left with no discretion whatsoever except to give effect to the said provision by imposing the said minimum sentence. Mr. Trivedi accordingly submitted that since the impugned order of sentence passed by the trial Court was in clear contravention of the minimum sentence prescribed under the statute, the said sentence requires to be suitably enhanced so as to comply with the provisions of the law.
4. Countering the above submission, Mr. B.N. Doctor, learned Advocate appearing for the respondents submitted that truly speaking since the impugned order of sentence was nothing but a product of illegal and unconstitutional “plea bargaining” this Court cannot enhance the sentence any more to the prejudice of the accused who had no fair trial because of the inducement to plead guilty. In support of this contention, Mr. Doctor invited the attention of this Court to an affidavit dated 5th December, 1985, filed by accused No. 2. In para-3 of the said affidavit, in substance it has been stated that on 26th July, 1980, when both accused appeared before the Court, they were given to understand by the complainant that if they plead guilty, they will be let off with the light sentence of fine and imprisonment till rising of the Court and in case if they refused to plead guilty, they would be tried for the alleged offence and would be rigourously sentenced. As they were totally ignorant of the law and had not engaged any Advocate to defend their cases they could not get proper guidance and further they were also taken by fear that if they did not plead guilty, they would be subjected to rigourous sentence. It is further alleged in the said affidavit that on the very day of their appearance before the Court i.e. 26th July, 1983 they were induced upon to pass the written purshis pleading guilty and hence they had no time to take legal advise. It was under these circumstances that they were made to give written purshis pleading guilty. Further in para-4 of the said affidavit, it has been stated that if indeed they were knowing or were made to know that an appeal for enhancement of the sentence can be and was to be preferred against the light order of sentence, then in that case, they would not have pleaded guilty. It is further submitted that because of their weak financial condition and burden of maintaining the entire family was upon them, out of sheer inducement they agreed to plead guilty. In para-5 of the said affidavit, it is finally urged by the opponent accused that since they were not given any opportunity to defend their cases before the trial Court, no order enhancing the sentence be passed against them to their prejudice. Mr. Doctor in support of this submission invited attention of this Court to the decision of the Supreme Court in the case of Thippeswamy v. State of Karnataka, , wherein it is held that:
Where by reason of plea bargaining the accused pleaded guilty and was convicted and sentenced by Magistrate acting upon his plea of guilty, the enhancement of sentence by the appellate or revisional Court in appeal or revision by acting on plea of guilty would not be reasonable, fair and just. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial Court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him.
Mr. Doctor also invited my attention of this Court to the decision of the Supreme Court in the case of Kasambhai Andulrehmanbhai Sheikh etc. v. State of Gujarat and Anr., , wherein it is held that:
Where the conviction of the accused was based solely on the plea of guilty entered by him and this confession of guilty was the result of the bargaining between the prosecution, the defence and the Magistrate and the High Court in suo motu revision on its attention being drawn to the light sentence imposed, enhanced the sentence to minimum three months’ imprisonment on the basis of the plea so entered. Held that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be considered to be unconstitutional and illegal. The High Court should have, therefore, set aside the conviction of the accused and sent the case back to the Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the accused.
5. There is a considerable force in the submissions made by Mr. Doctor and hence the same deserves to be accepted in to. Turning first to the affidavit in question filed by the accused, the same on face of it, in unmistakable terms raises a finger or accusation the Food Inspector alleging that but for his insistence and inducement to plead guilty, they would not have agreed to plead guilty before the trial Court. Though this indeed is a very serious allegation, it is difficult at this stage to straighway either to accept or reject the same. Ordinarily, under such circumstances, it is always advisable to wait for some affidavit-in-reply from a person against whom the allegations are made and in this case, Food Inspector, so as to afford him an opportunity to meet with the same. However, in facts of this case, it appears to this Court that irrespective of the truthfulness or otherwise of the said allegations, fact remains: (i) that the accused had been alleged to have committed serious offence of the food adulteration; (ii) that on the very first day of their appearance before the trial Court “plead-guilty” came to recorded on the basis of written purshis passed on by the accused; (iii) that immediately thereafter despite the inflexible minimum punishment prescribed under the said Act, the accused came to be lightly let off with an imprisonment till rising of the Court and nominal fine of Rs. 100/-, as if scoffing against the said legislative provisions. These circumstances are eloquent and strong enough to need any further proof to support the submissions of Mr. Doctor that this was nothing but the case of “plea bargaining”. What pains this Court most is the utter disregard shown by the trial Court in violating an unambigous statutory provision regarding minimum punishment. Such act of defusing legislative mandate which aimed at protecting the public health from anti-social food adulteration activities is highly reprehensible and simply unthinkable. Any way, in view of the fact that Mr. Doctor has gained a point of plea bargaining in his favour, it must be held that the impugned order of sentence is illegal and unconstitutional and deserves to be quashed and set aside.
6. Now picking the thread of discussion left behind from para-1 of this judgment, let us proceed ahead appreciating and answering the questions raised therein. In a way, perhaps, it may surprise some as to what is there to question about in any of these three questions as very bare perusal of the relevant provisions of the statute makes things pretty clear, requiring no answers at all. And yet the fact remains that certain Courts are occasionally found prone to defy the provisions of law which has necessitated this Court to raise the questions in context and explain them by answering it with a view to impress upon the erring trial Courts the seriousness and gravity of the problem of plea bargaining, its consequential effect upon the cause of justice and image of the administration of justice.
7. Now turning to question No. 1 answer to it is obvious that once it is found that the legislature in its wisdom has chosen to expressly take away the discretion part of a Court in matter of awarding sentence by prescribing the fixed minimum sentence for a particular offence, then in that case, the concerned Court has no authority to act to the contrary. It is unquestionably the duty of every such Court to understand, honour and enforce the law enacted by the legislature aiming at justice unless the same is declared to be ultra vires and unconstitutional, or rarely in cases of ambiguity that it has a power to interprete the same. But such is not the case here. Section 16(1)(a)(i) of the Act is crystal clear enough. As a matter of fact, reading said provision, one wonders as to from where the trial Court could cull-out the discretionary power when there did exist none?
7.1 This question is also aptly dealt with by this Court in the case of state of Gujarat and Anr. v. Ramanlal Vithaldas reported in 1974 (15) GLR 545. At page 551, para-7 of the judgment, it is held as under:
There is a clear legislative exposition while amending Section 16 in that the judiciary which ought always to be trusted for deciding the quantum of punishment in each individual case because no two individual cases are alike, has been denuded or stripped off its powers and the legislature interposed itself by saying that such and such shall be the punishment irrespective of any facts of any individual given case. A very lengthy discussion took place at the Bar while hearing these applications, and the learned Advocate were invited to develop a proposition on this line, namely, whether where the legislature provides for a specific punishment, leaving nothing to the direction of the Court, the Court has at all any further discretion to tinker with the punishment provided in law. No case law, not proposition from the text books investing such power in the Court has been brought to the notice of this Court, except attempting their utmost to show that the offender under the Prevention of Food Adulteration Act is also entitled to the benefits of the Probation of Offenders Act. That is neither here nor there. The question which looms large before the Court is whether the Court can avoid giving effect to the legislative intendment by referring to something which is thoroughly irrelevant and of no consequence. Looking to the scheme enacted in Section 16 after the amendment, unless adulteration is shown to be of the type as stated in the proviso and the case is therefore shown to have been covered by the proviso, there is no discretion in the Court but to give minimum punishment and cannot envisage any exceptional case, and even if there be one, the legislature does not recognise it. Either a man is convicted, and given minimum punishment or is acquitted. There is no halfway house.
7.2 As a matter of fact, the a concept of minimum punishment has a definite subject to serve. The legislature in its wisdom realising the gravity and seriousness ‘of offences under certain socio-economic beneficial pieces of legislation and further in order to effectively meet with the situation arising therefrom in order to cure the said offences, has provided for the minimum punishments. Accordingly, when the statute has fixed minimum sentence, no Court can even for adequate and special reasons further reduce it to less than the one so stipulated in the Act itself. In fact, once the statute provides for any minimum sentence, Court cannot pass sentence less than the minimum so prescribed. That is what the Full Bench of Punjab and Haryana High Court has also held in the case of State of Haryana v. Yad Ram the said judgment, it has been observed as under:
The language of the proviso to Section 16 is unambiguous and clear. It softens the term of punishment if the existence of the reasons given by the Court are sufficient to persuade the prudent and reasonable mind of the judge deciding the case to take a view towards leniency of the punishment but within the framework of the proviso. It nowhere indicates that the minimum punishment provided in it can be further scaled down. When the statute has fixed the minimum sentence, no Court can even for adequate and special reasons further reduce it than the one given in the Act itself. If such a thing is permitted then the policy of the strict punishment of the concept of minimum punishments to check the growth of the criminal activities under the Act is likely to be defeated.
In para-9 of the said judgment, it has been further held as under:
The concept of minimum sentence is not new to our legal system, but is very old. Quite a few offences under the Penal Code carry minimum punishments. The recent trend on Criminal Law is in favour of harsh, deterrent as well as for prescription of minimum punishments for some offences, which are hazardous to the society. The latest in such enactments is the Narcotic Drugs and Psychotropic Substances Act, 1985, providing harsh and minimum sentences for some offences. Although in modern days the programmes of criminal reforms are on the increase and many beneficial legislations are enacted and ways and means are discussed and found out to reform a man treading on the path of crime, yet the law cannot be made lax in every branch of criminal offences. Whenever and wherever the legislature, in cases like economic offences and the criminal offences affecting the health of the society thinks that the sentences has to be harsh so that it pinches the offender and acts as a deterrent, then it provides (for) it. Any legislative measure for harsh and severe punishment has to be strictly enforced. For the enforcement of a mandate of a statute, leniency on the basis of soft ideas of an officer presiding a Court before which a criminal is tried should not have any weight. When the legal provision is in a mandatory form and prescribes the doing of an act in a particular way, may be by passing a sentence, then it has to be one only in that manner and not in any other way. This is how the legislative measures in the matter of visiting the accused convicted under Sections 7/16 of the Act with minimum sentences are to be enforced by the Courts.
8. Now coming to the question No. 2, the discussion made in the preceding paragraph squarely answers this question also. Accordingly, once the trial Court found to have exceeded its jurisdiction by awarding the sentence which is less than the statutory minimum prescribed in cases where accused pleads guilty, there cannot be doubt or difficulty whatsoever in holding that the same per se amounts to plea bargaining.
9. This then takes us to last and third important question. However, before this Court enters into discussion and answers the same, it is necessary first of all to spotlight the dangerous potentialities of this plea bargaining and its resultant grave implications and overall far-reaching repercussions.
It is indeed a high time that this condemned evil of plea bargaining is taken a serious note of it at the earliest best and some decisive measures to control and check the same are evolved, as despite the time and again serious cautions sounded by the High Court and the Supreme Court, the same as if having fallen on deaf ears, care-free defiance of the same and statutory requirements with absolute impunity are going on unabatedly. Such pleas of plea bargaining deserve to be abhored and eschewed from practice by the trial Court for ever and at the earliest for the simple reason that (i) when the same is challenged in a higher forum it inevitably results into vitiating the entire trial rendering conviction and sentence illegal and non est; (ii) it invariably results into remanding the case to the trial Court for a fresh trial; (iii) this means second innings for all viz. the accused, the prosecution and the trial Court on account of an uncalled for lapse committed by the Court itself at some earlier stage; (iv) such second innings obviously burdens the public time, public money, workload of the Court etc. (v) in a genuine case where the accused has been duped to plead guilty, its indeed unjust and too harsh to subject him once again to the grindmill of the trial again; (vi) further such second innings worst hits the prosecution as by the time the fresh trial takes place, time factor starts depreciating the evidentiary value of the prosecution evidence on the ground of falling memories, non-availability of the witnesses etc. Thus, by remanding the case, the prosecution rather the cause of justice itself suffers to a greater deal by denial of an expeditious fair trial. In substance, the plea bargaining being a very antithesis of the law and justice, is worst unpardonable, unjudicial act.
10. Who is responsible for all these? The trial Court? The prosecuting agency? The accused? Or is it a joint misadventure of all the three? This may be and can be found out, but let there not be any misgiving in the minds or any in clearly understanding that the ultimate and overall accountability for such plea bargaining and its trial of illegal and undersirable consequences unexceptionally and undoubtedly rests with the concerned Court only as but for its inadvertence, ignorance, connivance or blessings the same could never materialise. The question therefore is now best to meet with the situation whereby this evil can be effectively brought under control. Some of the ways, as enlisted here, can to some extent, help saving the situation. They are – (i) whenever, the accused pleads guilty and prays for mercy in the matter of sentence, first of all it ought to be the boundened duty of the prosecuting agency itself to point out to the concerned Court the fixed minimum sentence prescribed under the statute, if any, for the alleged offence and thereafter also to point out that even if accused volunteers to plead guilty, no concession by way of lighter-lesser sentences can ever be given to him. This in a given case, where sometimes as often alleged the complainant displays the tendency to play foul with his official duties by illegally inducing the accused to plead guilty (as alleged in the present case), can instantaneously check him. This can be effectively devised by the concerned departmental authorities under whom such complainants are usually working, by insisting upon a set-proforma practice of mentioning the fixed punishment for the alleged offence in the body of the complaint itself. This can counter-check the evil of plea bargaining at all material level. Firstly, it can help unwary accused from being duped into pleading guilty in hope of getting away sooner and with lighter sentence without suffering any pangs of prolonged trials. Secondly, it can hold back an unscrupulous and dishonest complaint from luring the simpleton accused from pleading guilty on a bait of lighter sentence, and thirdly, it can also prevent the Court from acting hastily on such plea of guilty under the cover of lame and unacceptable excuse either of the prosecuting agency failing to point out the minimum sentence, or objecting to awarding the lenient sentence; (ii) every Sessions Court can at the administrative level ask the subordinate Criminal Court to submit monthly report of the cases where accused pleaded guilty and despite the minimum punishment prescribed under the statute sentenced him to a lesser punishment. Further every Sessions Court is also expected to supervise and maintain a constant vigil over the working of the subordinate Criminal Courts in order to see that the same do not over-step the mandate of law. This sort of supervision must be highly active and regular to be effective in place of idle, mechanical formality of superficial inspection. Sometimes, inadvertent errors or lapses in following some procedure are pardonable and can be corrected on judicial side in an appeal or revision, but flouting of a substantive law like not awarding statutory fixed minimum punishment, cannot be countenanced so lightly as what else it is than breaking the law? Accordingly, such plea bargaining is not merely an error of law simpliciter which can be suitably rectified and set right in an appeal or revision for enhancement of sentence as the case may be – rather it is far more serious than the mere error of law. In fact, such plea bargaining per se is a violation of law by no less an authority than a Court itself and therefore graver view of the same can and ought to be taken as it per se amounts to gross judicial misconduct making the concerned Court accountable and answerable at the administrative level as well; (iii) Vox-populi and the press interested in upholding the maintenance of rule of law and justice must not miss any opportunity to raise voice and alarm whenever and wherever and for whatever reason the statutory provision for minimum sentence is alleged to be flouted by any Court, as to do so, is a social and national duty of every enlightened citizen.
11. Thus, it must be realised that the recording of plead guilty is not an idle formality. Neither can it be permitted to be an escape nor a disposal devise for either a Court or a prosecuting agency or an accused in place of full-fledged trial. Therefore, whenever an accused pleads guilty, the Court has got to seriously apply its mind to: (i) the gravity and seriousness of the alleged offence; (ii) whether and what the minimum punishment is prescribed for the alleged offence; (iii) whether such plea of guilty is an honest and voluntary or is false and fraudulent obtained by way of temptation held out for the sentence less than the minimum prescribed; (iv) whether the accused has fully understood the true import of his pleading guilty, that is to say, not only that the accused has fully understood what are the facts alleged against him that constitutes the offence, but also the unavoidable consequences or the effect of pleading guilty namely that in view of the minimum sentence prescribed under the law, despite his plea for mercy and sympathy while awarding sentence, he would be inevitably visited with the said minimum sentence prescribed under the law; (v) it is only after the trial Court is satisfied about the above and that too in the writing that it can accept the pleading guilty by the accused and pass order of sentence according to law. This has got to be done because the order of minimum sentence should not spring surprise to the accused, catching him unaware.
12. It is not unknown these day that ordinarily whenever any accused person finds himself inextricably caught up in a case and feels further helplessly sure of himself that no amount of efforts can possibly wriggle him out of the clutches of law and a noose of irrefutable evidence that surrounds his neck, he mellows down and with a view to make best of the bargain out of the worst of the predicament deceptively humbles down to the feat of the Court pleading guilty with crocodile tears of repentance in his eyes begging mercy for the sentence. Thus, the possibility of such pleas by accused being bogus, deceptive and fraud on the Court and statute, cannot be ruled out. Every Court is expected to guard itself against such clever moves of the accused. The mischief scheme and the game of the accused is pleading guilty is worth understanding. What happens is, a clever accused deliberately, trickily pleads guilty and takes chance to get away with the benefit of a sentence which is lighter than the minimum prescribed. When such order comes to be challenged by way of appeal or for the enhancement of sentence, once again the very accused very conveniently comes out with a right or wrong defence of plea bargaining by tendering an affidavit keeping once again the Court of law at distance from passing a particular sentence against him. Now once the defence of plea bargaining is successfully taken, the higher Court is bound to remand the case. Thus when the case is so remand, at a belated stage of fresh trial, often the prosecution evidence, is found to have lost its some edge, freshness and vitality possibly impairing its success at the end of the trial, whereby the accused ultimately stands to gain. In fact, such type of accused are capable of taking entire law and justice machinery for joy-ride frustrating the prosecution case and defeating the ends of justice. It is this picture which must be present and alive to the mind of every Court, the Public Prosecutor or any other complainant in charge of the case when accused pleads guilty and prays for mercy more particularly in cases of inflexible minimum sentence fixed under the Act.
13. Nothing could be more distressing for this Court than to notice alarming and disappointing features just discussed above, perhaps even more distressing is a situation where the law implementing and enforcing agencies like executive and judiciary are required to be impressed as regards their duties to the law of the land and people for whom it is made. It is no secret that unless respect for law and accountability arising therefrom becomes an ingrained and inviolable culture of the Court and the executive, there is no hope whatsoever for any peaceful, harmonious and progressive civilized human existence.
14. In the result, this appeal for enchancement of sentence succeeds partly and is allowed to the said extent. The impugned judgment and order of conviction and sentence passed by the trial Court is quashed and set aside. Fine paid, if any; is directed to be refunded. The case is remanded to the trial Court for a fresh trial with a direction to dispose of the same on merits according to law as expeditiously as possible.