G. Mehrota, J.C.
1. This is an application in revision on behalf of the State against the order dated the 9th November 1960 passed by the Additional Sessions Judge, Upper Assam Division, Dibrugarh in appeal. The facts ate that one Suleman Khan who was the driver of a Motor Vehicle was tried under Section 123 of the Motor Vehicles Act and sentenced to three months simple imprisonment and to pay a fine of Rs. 1000/- in default to simple imprisonment for three months by the District Magistrate at Dibrugarh. The other accused Lalan Pathan was also tried along with Suleman Khan under Section 123 of the Motor Vehicles Act read with Section 114, I.P.C. and sentenced to pay a fine of Rs. 200/-in default to simple imprisonment for one month by the District Magistrate. On appeal the additional Sessions Judge has held that the trial was not legal inasmuch as the provisions of Section 130, Motor Vehicles Act and Section 342,
Cr. P.C. were not followed in the present case. He has allowed the appeal, set aside the order of the District Magistrate and sent back the case for retrial in accordance with the provisions of Section 130, Motor Vehicles Act.
2. The prosecution was started on a report being submitted that the accused persons on the 23rd May 1960 at 9-30 A.M. were found driving the car with eighteen passengers on hire, and Suleman way, the driver and the other accused was the handy-man. They were found driving the Vehicle in violation of the permit condition on the Assam Trunk Road, Tinsukia. On being asked the driver Suleman Khan could not produce, any document in support of his vehicle nor could he produce has license. The District Magistrate found on trial that they were driving in contravention of the permit condition on the road and convicted and sentenced them as indicated above. The District Magistrate has stated in his order that he had given the option, to the accused persons if they would like to be represented by pleader but they declined to do so.
3. The contention raised by the State counsel is that the case is not covered by the provisions of Section 130 of the Motor Vehicles Act. He has further contended that even if Section 130 applies, to the facts of the present case, there has been compliance with that provision inasmuch as the option was given before the trial commenced to the accused as to whether they intended to be represented by a pleader and they declined. The point which is before us for consideration is whether on the facts of the present case the provisions of
S. 130, Motor Vehicles Act are attracted or not.
4. Section 1.30 of the Motor Vehicles Act reads as follows:
130. (1) A court taking cognizance of an offence under this Act shall, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to' be served on the accused person that he:
(a) may appear by pleader and not in person.
(b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registration letter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify.
The remaining portion of Section 130 is not necessary for the purpose of the present case. Schedule Five Part A has enumerated certain offences under this Act.
5. The argument of the State counsel is. that the present offence comes under Clause 8 of Part A of Schedule Five which provides as follows:
Any offence punishable with imprisonment in tile commission of which a motor vehicle was used.
The argument is that Section 123(1) of the Motor Vehicles, Act consists of two parts. The first part says that if the person is found guilty of the first offence, he can be fined only but the second part says, that if he is found guilty for a subsequent offence, he can be sentenced to imprisonment also. In cases where the person is tried of a subsequent offence Part 2 of Section 123(1) will apply and thus el. 9 of the Fifth Schedule Part A will be attracted. We do not think that there is any force in this contention. Section 123(1) only provides that if a person is tried of a subsequent offence, he is liable to be sentenced to imprisonment but at the fest trial he can only be sentenced to a fine. This does mot mean that Section 123(1) consists of two separate offences and thus the second part of Section 123(1) Will be covered by Clause 9 of the Fifth Schedule Part A and 'not die first part.
There is no mention of Section 123 in any of clauses of the Fifth Schedule Part A, but apart from this, Clause 9 in our opinion applies only to the cases where a person is tried of an offence q. the commission of which a motor vehicle is used. It does not apply to the cases where the use of a vehicle itself constitutes an offence. If the use of the vehicle itself constitutes an offence, then it will be an offence coming within Section 123 and if the legislature intended to include such an offence within Part A of the Fifth Schedule that would have been specifically mentioned in the Met. Clause 9 to our mind applies only to ah offence which, is disconnected with the use of the motor vehicle without registration or permit, in other words, it applies only when the motor vehicle is words in the commission of a separate Offence. The offence must be distinct from the use of the motor vehicle itself. Apart from this it may be said that
cl. 9 only lays down that any offence punishable with imprisonment will be included in this clause. Cases where the sentence of imprisonment h an alternative sentence or where a person can only be sentenced to fine need not come under Clause 9. In any view of the matter in our opinion the offence under Section 123 is not included in Clause 9 of Part A of
and Fifth Schedule.
6. The next argument of the counsel for the Slate is that even if Section 130 is attracted, there has been a proper compliance with the provision of this section. Firstly it is contended that Section 130 only gives an option to the Magistrate either to ask the accused to choose to be represented by a pleader or to plead guilty and remit a sum not exceeding twenty-five rupees to the court. But the choice lies with the Magistrate to give either of he two options to the accused. In our opinion that is not the correct interpretation of Section 130 of the Motor Vehicles Act. The plain language of Section 130 indicates that if a person is to be tried for an offence under this Act an option is to be given to the accused to choose either of the two things, either to be represented by a pleader or to plead guilty and pay up the amount. The choice lies with the accused and it is to be indicated in the summons itself that the choice is with the accused. He may select either of the two procedures. The choice does not rest with the Magistrate. The Magistrate cannot choose in which cases he will give the option of the accused being represented by a pleader and in which cases he will give an option to the accused to deposit the sum and plead guilty.
It is contended very strenuously that if such an interpretation is given to the words of Section 130, it will nullify the very object of the amendment of Section 123. So far as Section 130 is concerned there has been no amendment except that the word 'may' has been substituted by the word 'shall'. Previous to the amendment of Section 130 it was discretionary with the Magistrate to give this option to the accused or not to give it. But by the amendment by use of the word 'shall' it is now obligatory on the part of the Magistrate to give the accused such an option and state that in the summons. The question therefore, of nullifying the objects underlying the change of Section 130 docs not arise at all. If the argument of the counsel for the State is accepted then even prior to the amendment of Section 130, an interpretation could be given that the option lies with the Magistrate and not with the accused. If that Is the contention, then the amendment in Section 130 is of no consequence in interpreting the language of the section.
7. It is further contended that Section 123 has been amended as it was realised that these offences have become very common and it was thought proper by the legislature to make provision for higher sentences in such cases. We do not think that this object in the first place will override the express meaning of the words used in the Act itself. All these rules of interpretation are only for the aid of the court to interpret the language of the section. If the plain language of the section does not justify such interpretation, no amount of difficulty pointed out by the counsel will persuade the court to interpret it differently. Apart from that even prior to the amendment a person convicted under Section 123 could be sentenced to a fine of Rs. 500/- and even then if the option was exercised by the accused, he could be let off by paying rupees twenty-five only.
Under those circumstances it cannot be said that the object underlying the amendment of the section would be nullified by giving that interpretation. It may be that the legislature thought that if the person was honest enough and
pleaded guilty before the court of law he could be let off OB payment of a fine irrespective of the fact whether he had been tried for the first Or the second offence. But the conviction still remains and the driver is liable for the cancellation of his driving license which is a punishment by itself (sic) reading of Section 130, we are of opinion that the Magistrate has to state in the summons, that the accused has the option to choose either of the two alternatives. It should also be pointed out that in the present case there was no compliance with the provision of Section 130 of the Motor Vehicles Act inasmuch as the option was not stated in the summons itself. As we are dismissing the revision on merits, it is not necessary to consider the preliminary point raised by the opposite party that the present revision is not maintainable. We accordingly reject this revision.
S.K. Dutta, J.
8. I agree.