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Judgment
A.P. Lavande, J.—Heard Ms. M. Collasso, learned Advocate for the Petitioner and Mr. C. A. Ferreira, learned Public Prosecutor for the Respondents.
Rule. By consent heard forthwith.
By this petition under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the judgment and order dated 9th November, 2010 passed by learned JMFC, Mapusa in Criminal Case No. 801/S/2009/D by which the Petitioner has been convicted for the offence u/s 7(3)(iii) of the Foreigners Order, 1948 punishable u/s 14 of the Foreigners Act, 1946 for failing to depart from India before expiry of his visa. Learned Magistrate has sentenced the Petitioner to suffer simple imprisonment for a period of 3 years and further to pay a fine of Rs. 10,000/-within a period of 15 days. The learned Magistrate has further held that he shall not undergo the sentence of imprisonment immediately and that he be released on probation u/s 4 of the Probation Offenders Act, 1958 upon entering into a bond of Rs. 50,000/-for a period of 30 days. The learned Magistrate has imposed further conditions and obligations on the Petitioner in the impugned judgment and order.
Although several grounds have been urged in support of the petition, petition is liable to be allowed on a short ground.
The impugned judgment and order is passed on an application filed u/s 265-B of Code of Criminal Procedure by which Petitioner/accused is permitted to file application for plea bargaining in the Court in which such offence is pending for trial. The record discloses that no objection was given by the learned Assistant Public Prosecutor as well as investigating officer and on the basis of the no objection, learned Magistrate passed impugned judgment and Order.
In terms of Chapter XXIA of Code of Criminal Procedure which has been introduced by way of amendment, an accused is permitted to file an application for plea bargaining u/s 265-B of the Code. Further on receipt of such an application the Court is bound to issue notice to the Assistant Public Prosecutor and to the accused to appear on the date fixed for the case and judge is bound to examine the accused in camera in the absence of other party to satisfy itself that the accused has filed the application voluntarily and in case the Court is satisfied that the application is filed voluntarily the Court has to grant time to Assistant Public Prosecutor and the accused to work out mutually satisfactory disposition of the case and thereafter fix a date for further hearing of the case. In case the Court comes to the conclusion that the application has been filed involuntarily by the accused or he has been previously convicted in a case in which he has been charged with the same offence, the Court has to proceed in accordance with the provisions of the Code from the stage such application is filed under Sub-section (1) of Section 265-B.
In terms of Section 265-C in working out a mutually satisfactory disposition, the Court has to follow procedure mentioned in clause (a) in a case instituted on a police report.
In terms of Section 265-D wherein a meeting held u/s 265-C for satisfactory disposition of the case works out, the Court has to prepare a report of such disposition which shall be signed by the Presiding Officer of the Court and all other persons who participated in the meeting and if no such disposition is worked out, the Court has to record such observation and proceed further in accordance with the provisions of the Code from the stage the application under Sub-section (1) of Section 265-B has been filed in such case.
Perusal of the record discloses that in the present case the procedure prescribed under Chapter XXIA of the Code has not been followed. In my opinion, the procedure prescribed under the Code is mandatory and therefore the impugned judgment and order passed by the learned Magistrate convicting and sentencing the Petitioner for the offence punishable u/s 14 of the Foreigners Act, 1946 is unsustainable in law.
In view of the above, impugned judgment and Order dated 9th November, 2010 passed by the learned JMFC, Mapusa in Criminal Case No. 801/S/2009/D is quashed and set aside and the matter is remanded to learned JMFC, Mapusa for fresh decision. Learned Magistrate shall deal with the application dated 12.10.2010 filed by the Petitioner in accordance with the provisions of Chapter XXIA of the Code in the light of the observations made above. The Petitioner to appear before learned JMFC, Mapusa on 12.7.2011 at 10.00a.m.
A copy of the judgment and order be furnished to the Petitioner on payment of necessary charges.
Rule is made absolute in the aforesaid terms with no order as to costs.
Writ Petition stands disposed of.