J.U. MEHTA

(1.) The appellant-State of Gujarat has filed this Appeal against the order of the learned Chief Judicial Magistrate, Bharuch, dated 8-6-1990 wherein the learned Chief Judicial Magistrate granted the benefit of probation under Section 4 of the Probation of Offenders Act after convicting the accused for the offences punishable under Sections 408 and 477-A, I.P.C

(2.) According to the prosecution, the charge against the accused was for offences punishable under Sections 408 and 477-A I.P.C. According to the prosecution, the accused was working as the Secretary of Dhamnad Co-operative Multi-Purpose Society Ltd. and that he misappropriated, the amount of Rs. 15,01,294-75 P. The accused pleaded not guilty to the, charge framed at Ex. 3. The case was transferred from the Court of the learned Judicial Magistrate, F. C., Janbuser to the Court of the learned Chief Judicial Magistrate, Bharuch on 3-12-1988. Thereafter on 9-5-1989 the complainant Champaksinh was examined. The learned Public Prosecutor appearing on behalf of the State gave an application and, therefore, the remaining evidence of Champaksinh could not be completed. About three months thereafter, i.e. on 10-8-1989 the complainant was examined. Thereafter, till the judgment was delivered, i.e. on 8-6-1990, the prosecution did not examine any of the prosecution witnesses. The accused pleaded guilty to the charge by filing Purshis.

(3.) After hearing both the parties, the learned Chief Judicial Magistrate, Broach, after calling for the report of the Probation Officer, convicted the accused for offences under Sections 408 and 477-A I.P.C. and instead of imposing a sentence, gave benefit under the provisions of Section 4 of the Probation of Offenders Act and ordered the accused to execute the bond in the sum of Rs. 2.000/- and surety of like amount for a period of 2 years. The said order was passed on 8-6-1990.

(4.) Being aggrieved by the said judgment and order passed by the Court of the learned Chief Judicial Magistrate, Broach, this Appeal is filed by the State.

(5.) The learned Addl. Public Prosecutor, Mr. S. R. Divetia submits that looking to the facts and circumstances of the case and the amount misappropriated by the accused, the Trial Court ought not to have given the benefit of probation under Section 4 of the Probation of Offenders Act. Miss Dutta appearing on behalf of the accused submitted that the Trial Court erred in acting on the plea of guilty of the accused. She has submitted that the stage of convicting an accused person on his plea of guilty comes when the charge is read over to the accused and if at that stage the accused pleads not guilty, the accused cannot be convicted without recording evidence and without appreciating evidence which is recorded by the Trial Court. She relied upon the judgment of this High Court in the case of Jayanti Luxnian v. The State of Gujarat, reported in 5 G.L.R. 648. In the aforesaid case, it is laid down by this High Court that the stage of convicting an accused person on his plea of guilty comes when the charge is read over to the accused and if at that stage the accused pleads not guilty, he cannot be convicted without recording evidence and without appreciating evidence recorded. What an accused says subsequent to the charge does not amount to a plea. Miss Dutt, therefore, submitted that the order of the Trial Court be quashed and set aside and the case be remanded back to the Trial Court to proceed in accordance with law. In my opinion, there is much force in the argument advanced on behalf of the respondent.

(6.) In the facts and circumstances of the case, I set aside the judgment and order dated 8-6-1990 passed by the Trial Court and remand the matter back to the Trial Court to proceed in accordance with law without taking into consideration the plea of guilty pleaded by the accused in the Purshis submitted by the accused to the Trial Court. This appeal is partly allowed to the aforesaid extent.

(7.) This case being an old one, I direct that the Trial Court will proceed with the case day to day and dispose it off within one month from the date of receipt of the Writ of this Court. The R.G.P. of the case be sent immediately to the Trial Court. Order accordingly.