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Mohinder Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1968CriLJ427
AppellantMohinder Singh
RespondentThe State
Cases ReferredState v. Raghu Ram
Excerpt:
.....motor vehicles act on the finding that; , held that even on a plea of guilty the conviction of an accused person under section 112 of the motor vehicles act was vitiated as the court had failed to comply with the requirements of section 130 of the act and this had amounted to an illegality having occurred. (2) where the offence dealt with in accordance with sub-section (1) is an offence specified in part b of the fifth schedule, the accused person shall, if he pleads guilty of the charge, forward his licence to the court with the letter containing his plea in order that the conviction may be endorsed on the licence. the learned additional sessions judge has recommended that the magistrate should be directed to proceed to try the petitioner after serving on him their requisite summons..........form shows that the man who prepared the form has also given in advance the answer which every person accused of an offence before the mobile court is expected to give. this is highly unsatisfactory way of administering justice, particularly in a criminal case.4. then proceeds the judgment on the same form which is also cyclostyled except for the name of the accused, the allegations on which he is prosecuted, the particulars of the offences for which he is convicted and the amount of fine which he is sentenced to pay. the judgment of the learned magistrate in the said cyclostyled form reads as follows:the allegation against accused (mohinder singh) is that on (25/6 he used vehicle no. dlf 5017. as taxi).2. particulars of the offence were read out to the accused and he pleaded guilty......
Judgment:
ORDER

R.S. Narula, J.

1. Car No. DLF 5017 is registered as a private motor-car. On June 25, 1964, at about 11-11 a.m., Mohinder Singh, petitioner, was detected driving the said car with three other passengers in it near the Minto Circuit, New Delhi. He was challaned by the Traffic Police on the allegation that he had committed the offence of using his above-mentioned private car as a taxi as he was carrying three passengers named in the challan on payment of Rs. 30 per day in addition to cost of petrol. According to the challan the petitioner had been asked to appear before the Mobile Court presided over by Shri Bhawani Shankar, Magistrate, First Class, Delhi, at 11-30 a.m. on the same day. No summons were issued to the petitioner for appearance before the Magistrate. In pursuance of the direction given to him by the Traffic Police he appeared before the Mobile Court. A cyclostyled form was filled in before the Court. The allegation against the petitioner was entered in the form in the following words:

The allegation against you is that on 25.6.1964 at about...you used the vehicle DLF 5017 as a taxi and was carrying three persons.

2. In the notice in the cyclostyled form the petitioner was not alleged to have charged Rs. 30 per day plus petrol or anything else from the three persons nor were the names of the three persons mentioned in the notice. The three persons were not even described as 'passengers' in the notice. In the said notice the petitioner was directed to show cause why he should not be 'punished under Sections 42/123, 22/123, 94/125 and 38/112 of the Motor Vehicles Act'. Below the notice occur the initials of the learned Magistrate, The cyclostyled form then purports to record the statement of the accused whose name is entered in manuscript. The question and the answer reproduced below are, however, cyclostyled:

Ques.-Have you heard and understood the notice? What have you to say?

Ans.-I plead guilty.

3. The prescribed form shows that the man who prepared the form has also given in advance the answer which every person accused of an offence before the Mobile Court is expected to give. This is highly unsatisfactory way of administering justice, particularly in a criminal case.

4. Then proceeds the judgment on the same form which is also cyclostyled except for the name of the accused, the allegations on which he is prosecuted, the particulars of the offences for which he is convicted and the amount of fine which he is sentenced to pay. The judgment of the learned Magistrate in the said cyclostyled form reads as follows:

The allegation against accused (Mohinder Singh) is that on (25/6 he used vehicle No. DLF 5017. as taxi).

2. Particulars of the offence were read out to the accused and he pleaded guilty. In view of the confession of the accused, I hold him guilty under Sections (42/123, 22/123, 94/125, 38/112 of Motor Vehicles Act) and order him to pay a fine of (Rs. 50 (fifty)) only. In default of payment of fine he shall undergo S.I. for a period of (4 days.)

(The manuscript writing has been underlined (bracketed herein-Ed.) by me in the above quotation).

5. The cyclostyled form of the judgment also shows that it is presumed by the office of the Magistrate that everyone is to plead guilty and that judgment is to be recorded on the basis of confession.

6. In the above circumstances the petitioner was convicted to pay a fine of Rs. 50 and in default of payment of fine to undergo simple imprisonment for a period of four days. As is clear from the above-quoted portions of the cyclostyled form, the above-said sentence has been imposed on the petitioner for offences punishable under Sections 42/123, 22/123, 94/ 125 and 38/112 of the Motor Vehicles Act.

7. From a reference to the relevant sections of the Motor Vehicles Act (hereinafter referred to as the Act) it appears that no allegations whatever had been made against the petitioner either by the Traffic Police or in the notice read out to him about his having committed any offence punishable under Sections 22/123, 94/125 and 38/112 of the Act. Section 22 of the Act requires that no person can drive any motor vehicle in any public place or in any other place either for the carrying of passengers or goods unless the vehicle is registered in accordance with the requirements of Chapter III of the Act. It was nobody's case that the car in question was not registered under Chapter III of the Act, On the contrary, a reference to the challan itself shows that the vehicle was registered as a private car. It is the violation of Section 22, etc., which is made punishable under Section 123 of the Act. The conviction of the petitioner under Section 22/123 of the Act is, therefore, wholly illegal and cannot be sustained.

8. Section 94 of the Act prescribes the necessity for insurance of a motor vehicle against third party risk. Violation of that provision is specifically made punishable under Section 125 of the Act. In the instant case no allegation at all was made against the petitioner for driving the ear in question in contravention of the provisions of Section 94 of the Act. His conviction under Section 94/125 of the Act is also, therefore, unsustainable.

9. Section 38 relates to the necessity of obtaining and keeping on the vehicle a certificate of fitness in case of transport vehicles alone. This was not a transport vehicle. There is no question of keeping on the vehicle a certificate of fitness in respect of a private car. In any case no facts were alleged against the petitioner which could have amounted to violation of the requirement of Section 38 of the Act which violation is punishable under Section 112 thereof. This part of the judgment of the learned Magistrate is also contrary to law.

10. If proceedings had been conducted in a proper way, there was the possibility of the conviction under Section 42/123 of the Act being maintained as a transport vehicle has been defined in Section 2(33) of the Act as including 'a public service vehicle' which has in turn been defined in Section 2(25) of the Act as including any motor vehicle used for the carriage of passengers for hire or reward. If the allegation of the petitioner having carried three passengers for hire and reward had been put to the petitioner and he had admitted the same or the said allegation was proved against him he could have been liable to conviction. In this case, however, in the notice read out to the petitioner, no allegation of his having carried the three passengers in question 'for hire or reward' was ever made. In these circumstances his conviction even under Section 42/123 of the Act cannot be sustained.

11. Against his above-said conviction and sentence the petitioner went up in revision to the Court of Sessions. Shri M.S. Joshi, the learned Additional Sessions Judge, Delhi, has recommended the case for the setting aside of the order of the learned Magistrate and for directing him to proceed with the matter on the lines contemplated by Section 130 of the Motor Vehicles Act on the finding that; the requirements of that section are mandatory and that the same have not been complied with in the instant case. There is no doubt that in State v. Raghu Ram : AIR1964Cal445 , Amaresh Roy, J., held that even on a plea of guilty the conviction of an accused person under Section 112 of the Motor Vehicles Act was vitiated as the Court had failed to comply with the requirements of Section 130 of the Act and this had amounted to an illegality having occurred. Section 130 of the 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, 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.

(2) Where the offence dealt with in accordance with Sub-section (1) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty of the charge, forward his licence to the Court with the letter containing his plea in order that the conviction may be endorsed on the licence.

(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.

12. The argument based on the above-said provision which appears to have prevailed with the learned Additional Sessions Judge is that in every case under the Act a summons must issue to an accused person and that in the said summons the accused should either be directed to appear by pleader (and not in person) or if the Magistrate thinks that on his pleading guilty a fine upto Rs. 25 only has to be imposed on him the summons should specify a date prior to the hearing of the charge by which the accused person may 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. In view of the sentence of Rs. 50 imposed in this case it would be presumed that the Magistrate did not intend to inflict on the petitioner a fine of less than Rs. 25. Clause (b) of Sub-section (1) of Section 130 would, therefore, have no application to the case. Whether it is necessary to issue a summons to a person accused of an offence under the-Act other than the one specified in Part A of the Fifth Schedule to the Act for the sake of merely telling him that it is not necessary for him to appear in person (as is normally necessary in criminal cases) and that he may appear by pleader in a case where the accused person is challaned and put up before a Mobile Court there and then does not appear to be free from doubt and difficulty.

Prima facie I am of the opinion that the judgment of the learned Judge of the Calcutta High Court in Raghu Ram's case is not based on this solitary consideration though there is the mention of this matter also in para 17 of the AIR Report of the judgment. It is significant to note that even in the Calcutta case the accused had been convicted and sentenced on a plea of guilty by a Mobile Court and, therefore, the question of the issue of summons to him did not as much arise in that case as in the instant case. Instead of using a cyclostyled form, a rubber stamp had been used in the Calcutta case which for all practical purposes is the same as the cyclostyled form used in the instant case. I think, it was principally on that ground that the criminal reference was answered by the Calcutta High Court in favour of the accused person. In any case, in the circumstances of this case referred to in the first part of my judgment it is not necessary to finally pronounce upon the necessity to conform to the requirements of Section 130 of the Act in cases tried at the spot by Mobile Courts.

13. My attention has also been invited to the judgment of a learned Single Judge of the Madras High Court in re. Manager, Indian Express AIR 1045 Mad 440 wherein it was held that when a car belonging to the Indian Express had been used on two occasions for taking bundles of newspapers the car came within the definition of a goods vehicle as contained in Section 2(8) of the Act and that, therefore, it was necessary for the driver to have a permit under Section 42(1) of the Act. On the analogy of that judgment it is sought to be argued by the State counsel that the carriage of the three passengers by the petitioner amounted to an offence under Section 42/123 of the Act. In the view I have taken of the proceedings as a whole in this case, it is not necessary to deal with this point.

14. The petitioner was tried by the procedure prescribed in Section 263 of the Code of Criminal Procedure for summary trial of offences. Under Clause (g) of that section 'the plea of the accused and his examination (if any)' have to be recorded. In the instant case the examination of the petitioner has not at all been recorded. I do not mean to suggest that it was necessary to do so. But I am merely mentioning it as a fact. The plea of the accused was already recorded in the cyclostyled form and, therefore, that cannot be taken notice of. There is certain sanctity attached to proceedings of a criminal case. Howsoever trivial the offence of which an accused person is charged may be, the risk of his being deprived of his liberty for default in payment of the fine imposed on him or otherwise is always involved in a criminal trial. The Court should, therefore, jealously safeguard the following of the procedure prescribed by law for depriving a person of his liberty or property. Even at the cost of a little more time which is likely to be taken in really examining the accused and recording his own plea in each individual case it is certainly necessary to follow the law and not to flout it. In the circumstances of this case I hold that there has been no proper trial of the petitioner and his conviction and sentences cannot be upheld and must, therefore, be set aside. The learned Additional Sessions judge has recommended that the Magistrate should be directed to proceed to try the petitioner after serving on him their requisite summons under Section 130 of the Act. In the circumstances explained above, I do not think it necessary to do so.

15. For the foregoing reasons this revision petition is allowed, the orders of the learned Magistrate convicting the petitioner and sentencing him to pay a fine of Rs. 50/- are hereby set aside and the petitioner is acquitted of all the charges against him.


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