1. The short but important Question which is raised by Mrs. K. Amareswari, the learned counsel for the petitioner, is that since no summons was issued to the accused under Section 130 of the Motor Vehicles Act, his conviction is vitiated
2. In order to appreciate the implications of this contention, it is necessary to mention a few facts. The accused was charged by the Special Motor Vehicle Inspector. Vijavawada for the offences under Section 123 read with Section 42(1) Section 112 read with Rule 213 (IV) and (V) and Section 112 read with Section 3 of the Motor Vehicles Act. It was alleged inter alia that on 30-12-1964 at 8-30 p.m the accused was found driving motor vehicle No APK 7002 which was overloaded by five passengers and was being driven without permit. No trip sheet also was maintained The driver had no driving
3. The accused in his statement under Section 342, Cr. P. C. admitted the offences. The learned Magistrate found the accused therefore guilty of the offences and convicted him under 8. 123 read with Section 42(1) and sentenced him to a term of one month's simple imprisonment. He also convicted him under Section 112 read with rule 213 (IV) and (V) and sentenced him to pay a fine of Rs. 5 or to undergo simple imprisonment of 5 days and under Section 112 read with Section 3 to pay a fine of Rs. 15 or to undergo two weeks simple imprisonment.
4. The accused preferred an appeal to the Sessions Judge. His contention there was that he was not served with any summons under Section 130 of the Motor Vehicles Act and his conviction therefore was illegal and ought to be set aside. The learned Sessions Judge negatived his contention and confirmed the conviction and sentence It is this view of the learned Sessions Judge that is now challenged in this revision petition.
5. In order to appreciate the contention raised before me, it is necessary to read Section 130 of the Motor Vehicles Act, which is in the following terms:
'(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, or
(b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify
(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of Sub-section (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.'
6. A close and careful reading of that section would disclose that the section is mandatory and it enjoins upon a Court taking cognizance of the offence under the Act to necessarily issue a summons incorporating one of the two alternatives mentioned in subsection (1) unless of course the offence with which the accused is charged is an offence falling under Part A nf the Fifth Schedule The section vests discretion in the Court to state upon the summons to be served OP the accused either of the two things mentioned in Sub-section (1) The Court may either state on the summons that the accused may appear by pleader and not in person or it may state that the accused may by specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sur not exceeding Rs. 25 as the Court may specify. The intention of the Legislature seems to be obvious. In cases, where the offence is of a trivial character, the Court would naturally like to use discretion in favour of the other alternative and dispense with the elaborate enquiry or trial by stating on the summons that the accused may plead guilty to the charge and inform the Magistrate by a registered letter prior to a specified date and may also remit the amount which the Court has prescribed in the summons, the sum not exceeding Rs. 25. If the accused thus pleads guilty and informs the Magistrate and remits the amount so specified, according to Sub-section (3) of that section no further proceedings in respect of the offence shall be taken against him, nor he shall be liable to be disqualified for holding or obtaining a licence because of the fact that he has pleaded guilty. This provision therefore affords a chance to the accused to plead guilty and remit the amount and thus save himself from involving in a trial which may end not only in punishment but as a result of it he will be liable to be disqualified for holding or obtaining a licence. He is not of course bound to carry out the dictates of the summons. He is at liberty to appear in response to the summons and refuse to plead guilty. He then has to be tried in accordance with the relevant procedure. The section thus confers a discretion on the Court first to determine as to whether it wants the case to be tried as an ordinary case. In that case clause (a) would apply, and If it is of the opinion that in view of the triviality of the offence Clause (b) may be oressed into service, it may state that on the summons. It Is of course not necessary to mention both the alternatives occurring in subsection (1). It is enough if one of the two is mentioned. In fact that is very necessary under Sub-section (1). Otherwise the option would be deemed to have been left to the accused to plead guilty and get off by a light punishment. But that does not appear to be the intention of the Act. That the section is mandatory and summons incorporating one of the two things must be issued in every proceedings can hardly be disputed. See : 2SCR720
7. What happened in this case, however, was that the accused voluntarily appeared himself on the date when the summons could have been ordered under Section 130 by the Court. Before the Court could make up its mind as to whether summons should be issued under Clause (a) or (b) of Sub-section (1), the accused appeared before the Court and without raising any objection or insisting upon the Issue of a summons or even insisting upon telling him under what clause the Court intends to proceed, he pleaded guilty and consequently he was convicted as stated above
8. The real Question therefore is whether when once the accused voluntarily appears without waiting for the summons and pleads guilty, does the omission to issue any summons under Section 130 render the proceedings and the conviction illegal. I do not think the conviction in such circumstances would be illegal. Process would be unnecessary when the accused voluntarily appears to answer the charge against him. The mere omission to issue process when the accused presents himself before the magistrate on being called does not render the conviction illegal. In Emperor v. Ruri, 20 Cri LJ 3 = (AIR 1919 Lah 389) a Bench of the Punjab Chief Court held in similar circumstances that where on a case being called the accused present themselves before the magistrate, there is no necessity of issuing process to them under Section 204 of the Criminal Procedure Code, and the mere omission to issue process in such a case does not render the commitment of the accused to the Court of Session illegal.
9. It is true that Section 130 is mandatory like Section 204. Criminal Procedure Code, which also is mandatory- Even on the general fundamental principles of criminal justice no accused can be condemned or convicted without being told as to under what charge is going to be tried and affording a reasonable opportunity to meet the charge That is the very basis for holding a fair trial. Although therefore Section 130 is mandatory, every violation of Section 130 is not illegal. Nor can it tie said that the accused cannot waive the service of summons on him under Section 130 of the Motor Vehicles Act or Section 204, Cr. P. C. In fact the accused has a right to appear voluntarily and participate in the trial without waiting for the summons. The Court of course has no right to proceed without Issuing the process if the accused does not appear personally.
10. In Tirumana Govindan v. Emperor. AIR 1929 Mad 544, a Bench of the Madras High Court held:
'Failure to comply with a mandatory provision of law is not necessarily an illegality that vitiates the proceedings, the real question being whether the failure has been prejudicial to the accused.'
11. What has therefore to be seen is whether the omission to take out a summons under Section 130 in the circumstances of the present case caused any prejudice to the accused. No circumstance was brought to my notice which would persuade me to hold that the accused was prejudiced because of non-service of summons under Section 130. Not only that, he voluntarily appeared but he pleaded guilty. It was never his intention that he wanted of engage a lawyer or was not aware of the charges levelled against him. In fact that is not the grievance made out even before me. The only contention advanced was that he could have engaged a lawyer if he was told that he may appear by pleader and not in person under Clause (a). He had every right, to ask the Magistrate to give him time so that he could engage a lawyer. When he was pleading guilty to the charge, obviously he did not want to engage any lawyer. I do not therefore think that any prejudice is caused to the accused because of the omission to service any summons under Section 130 in view of the fact that he voluntarily appeared before the Magistrate.
12. Mrs. K. Amareswari relied upon State v. Raghu Ram. : AIR1964Cal445 in support of her contention that the omission to issue summons under Section 130 vitiates the conviction. That decision can easily be distinguished on the facts of that case. In fact that was a case where the conviction was set aside on the ground that the omission to serve summons under Section 130 of the Motor Vehicles Act caused prejudice to the accused. It was held that the real offence with which the accused could have been charged was not Section 112 but Section 123. Similarly the rules were not mentioned under which he was found to be guilty. It was also doubted whether the accused had at all pleaded guilty. That case therefore does not render any assistance to the petitioner. It does not decide that even in a case where the accused appears voluntarily the empty formality of serving the summons must in every case be followed or that if the accused voluntarily appears, pleads guilty and is convicted, that conviction would be illegal even in a case where it is proved that no prejudice was caused to the accused on account of the omission to serve him with notice under Section 130. I am therefore satisfied that the conviction is not illegal and cannot be set aside on that ground.
13. It was then contended that in view of the circumstances of the case the sentence awarded is too harsh and ought to be reduced, I find some force in this contention. The learned Magistrate unnecessarily dragged in Section 42(1) of the Motor Vehicles Act and read it along with Section 123. Section 42 applies only to a case where the owner is charged with the offence of using the motor vehicle without its being property registered. The driver cannot be held guilty under Section 42(1). He is of course guilty under Section 123 if he drives a motor vehicle which is not properly registered. That apart, there are circumstances which show that the punishment is not in proportion to the offence with which the accused was charged. The accused has already spent about six days in jail in pursuance of the conviction. I think the ends of justice will be met if the sentence of imprisonment is reduced to the term which he has already undergone in the Jail. The sentences of fine of course remain intact.
14. Subject to the modification in the sentence, the revision petition is dismissed.