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Dulichand Bothra and anr. Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantDulichand Bothra and anr.
RespondentThe State
Prior history
P.K. Goswami, C.J.
1. This appeal is directed against the judgment of conviction of the appellants Under Section 123/U4 of the Motor Vehicles Act. They were sentenced to pay a fine of Rs. 500/- each, in default to suffer rigorous imprisonment for five months.
2. It appears that the Deputy Commissioner, Garo Hills, personally found Sudhir Kumar Das, one of the accused-appellants, driving a truck. No. AST 197 on the 26th mile on the Tura-Dalu road carrying 11 persons and without a licence That
Excerpt:
- - sarma, the learned public prosecutor, submits that the rules for the administration of justice and police in the garo hills district, clearly authorise the deputy commissioner to administer criminal justice under the rules and the procedure to be followed by the loarned deputy commissioner under rule 2 is to be guided by the spirit of the code of criminal procedure as far as it is applicable to the circumstances of the district and consistent with the rules. a mere reading of these two sections would clearly show that these are not at all applicable to the facts of the present case. 6. in view of the above, i am not inclined to remand this case back for trial but set aside the conviction as well as the sentence of both the accuse 1 persons......road carrying 11 persons and without a licence that was a sunday the 13th october, 1968 and the deputy commissioner on 14th october, 19i& noted these facts and issued summons on the two accused persons. he also took possession of the documents and papers found in possession of the driver. it appears on the 14th when the accused persons 'personally appeared, he examined both of them. he put to accused sudhir chandra dey the following questions:q: on 13-10-68 you are found carrying 11 (eleven) persons in vehicle ast 197 (truck) without driving licence on the 26th mile of tura dalu road.' the accused answered: 'yes, i have carried 11 (eleven) persons without having valid driving licence.the other accused, who is the owner of the vehicle was put the following question :q. on 13-10-68 you.....
Judgment:

P.K. Goswami, C.J.

1. This appeal is directed against the judgment of conviction of the appellants Under Section 123/U4 of the Motor Vehicles Act. They were sentenced to pay a fine of Rs. 500/- each, in default to suffer rigorous imprisonment for five months.

2. It appears that the Deputy Commissioner, Garo Hills, personally found Sudhir Kumar Das, one of the accused-appellants, driving a truck. No. AST 197 on the 26th mile on the Tura-Dalu road carrying 11 persons and without a licence That was a Sunday the 13th October, 1968 and the Deputy Commissioner on 14th October, 19i& noted these facts and issued summons on the two accused persons. He also took possession of the documents and papers found in possession of the driver. It appears on the 14th when the accused persons 'personally appeared, he examined both of them. He put to accused Sudhir Chandra Dey the following questions:

Q: On 13-10-68 you are found carrying 11 (eleven) persons in vehicle AST 197 (Truck) without driving licence on the 26th mile of Tura Dalu Road.' The accused answered: 'Yes, I have carried 11 (eleven) persons without having valid driving licence.

The other accused, who is the owner of the vehicle was put the following question :

Q. On 13-10-68 you have allowed Driver Sudhir Dey to carry 11 persons in your vehicle AST 197 (Truck) violating the permit conditions.

And he answered: 'I do not have any knowledge about it.' This was the only thing which the learned Deputy Commissioner did on the 14th after which he passed the impugned order convicting the accused persons as stated above.

3. Mr. Das, the learned Counsel for the- appellants, submits that the learned Deputy Commissioner, who himself detected the case, should not have disposed of the matter. He further submits that even on the merits the offences are not proved. Mr. Sarma, the learned Public Prosecutor, submits that the Rules for the Administration of Justice and Police in the Garo Hills District, clearly authorise the Deputy Commissioner to administer Criminal justice under the Rules and the procedure to be followed by the loarned Deputy Commissioner under Rule 2 is to be guided by the spirit of the Code of Criminal Procedure as far as it is applicable to the circumstances of the district and consistent with the Rules. The learned Counsel, therefore submits that the trial was not at all irregular and since the first accused has admitted his guilt, there is nothing erroneous about the conviction and sentence.

4. On the first question raised by Mr. Das, it is sufficient to state that the learned Deputy Commissioner even if he was authorised to deal with the matter, should have informed the accused of their right to have the trial in another Court. It is true that this kind of procedure is only known to the Code of Criminal Procedure Under Section 190 (1) (c) thereof read with Section 191. Yet, the principle under these sections is what appertains to a civilised notion oE a trial in a Criminal case. Whether the spirit of the Criminal Procedure Code applies or the law itself applies as. such it is absolutely necessary that administration of justice should give an impression that an impartial tribunal disposes of a case before it. In a Criminal Trial, the prosecutor cannot be a Judge. Here, the learned Deputy Commissioner himself having detected the offence was in the position of a witness and by that very position, he has disqualified himself from disposing of this case. The fact that only the spirit of the Criminal Procedure Code applies is no answer to a trial of this description. Under any system, this ground is enough to quash the entire proceedings before the court below.

5. There is, however another objection to even considering the remand of this case. The offences described are Under Section 123/114 of the Motor Vehicles Act. A mere reading of these two sections would clearly show that these are not at all applicable to the facts of the present case. Mr. Sarma the learned Public Prosecutor, fairly, and in my opinion rightly, concedes the above position of law. It is true that the first accused who is the drive r, admits to have carried 11 persons 'without having valid driving lice ice''. I he learned Deputy Commission's order shows that the licence beard thj name of Sudhir Kumar Das. Since, however, the accused has himself produced this licence and has brought the question of validity of the licence, without any further evidence before the court below it was not possible for the learne.i Deputy Commissioner to hold that Sudhir Kumar Das and Sudhir Chandra Dey were not one and the same person.

As a matter of fact, Mr. Das ha 3 drawn my attention to a ground which he has taken in this appeal stating that Sudhir Kumar Das is the alias name of Sudhir Chandra Dey and that there was a photograph, which was affixed to zh. 3 driving licence, and that his driving licence was valid up to October 1969, the date of the occurrence being 13-10-68. Even if the first accused was dru-'ing without a licence, his case would not come Under Section 123 or Under Section 114, as alleged, but will come Under Section 112 of the Motor Vehicles Act, in which case for the first offence of this kind, the maximum sentence could be only a sum of Rs. 100/-. Both of the accused appellants ha/e been sentenced to a fine of Rs, 500/-each in this case. This would go to show that the learned Deputy Commissioner did not have Section 112 of the Motor Vehicles Act in view but had only Section 123 thereof which even ex concessis does not apply to the facts of the present case.

6. In view of the above, I am not inclined to remand this case back for trial but set aside the conviction as well as the sentence of both the accuse 1 persons. The appeal is accordingly allowed. The fine if paid shall be refunded.


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