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The State of Gujarat Vs. Pyarekhan Allarakhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1967CriLJ1229
AppellantThe State of Gujarat
RespondentPyarekhan Allarakhan
Excerpt:
- - 2, in column 'offence complained of' the words 'under 8s 8 and 4 of the motor tax act r/w section 16 of the motor tax act' are written. the expression 'offence complained of' does not mean the section under which the offence has been committed. as the learned magistrate has failed to do so, the conviction must be set aside......the letters patent and in constitution. that is not a subject on which rules can be framed by the high court. rules are also not framed in such language. what purports to be a rule is a statement of the policy of the high court. what purports to be rule 14 cannot be said to be a rule. the objection is, therefore, rejected.3. the next contention raised by the learned counsel for the opponent is that the sentence of fine prescribed under section 16 of the motor vehicles tax act, 1958, is not passed and therefore the minimum prescribed under that section does not apply. the contention is that the sentence of fine prescribed under section 16 of the motor vehicles tax act, 1958, has not been passed because in addition to that sentence the sentence in default is passed under section 33 of the.....
Judgment:
ORDER

V.B. Raju, J.

1. This is a revision application by the State for the enhancement of sentence passed on the opponent under Sections 3 and 4(a) of the Motor Vehicles Tax Act, 1958, for having in possession and control of a motor vehicle without payment of the tax, an offence punishable under Section 16 of the said Act.

2. A preliminary objection is raised by the learned Counsel for the opponent- accused that this revision application is filed directly in the High Court without it being filed in the Sessions Court, and reliance is placed on Rule 14 of the Bombay High Court Appellate Side Rules, 1960, contained in Chap. XXVI of the said Rules. The said Rule 14 reads as under:

In the absence of special circumstances, the High Court will not entertain an application for revision where an application for revision might have, but has not, been made to a lower revisional Court.

The High Court cannot frame rules as regards the powers of the High Court. The powers of the High Court are to be found in the Letters Patent and in Constitution. That is not a subject on which Rules can be framed by the High Court. Rules are also not framed in such language. What purports to be a rule is a statement of the policy of the High Court. What purports to be Rule 14 cannot be said to be a rule. The objection is, therefore, rejected.

3. The next contention raised by the learned Counsel for the opponent is that the sentence of fine prescribed under Section 16 of the Motor Vehicles Tax Act, 1958, is not passed and therefore the minimum prescribed under that section does not apply. The contention is that the sentence of fine prescribed under Section 16 of the Motor Vehicles Tax Act, 1958, has not been passed because in addition to that sentence the sentence in default is passed under Section 33 of the Criminal P. C. The sentence of fine would fall under Section 16 of the Bombay Motor Vehicles Tax Act, 1958, while the sentence in default of fine would fall under Section 33 of the Criminal P. C. Therefore, the contention of the learned Counsel is rejected.

4. The next contention of the learned Counsel for the opponent is that although the opponent pleaded guilty, the particulars of the offence were not stated to him and has not pleaded guilty to the offence actually committed by him. In the record of the lower Court, namely, Ex. 2, in column 'offence complained of' the words 'under 8s 8 and 4 of the Motor Tax Act r/w Section 16 of the Motor Tax Act' are written. This is not the way of filling up that column. The expression 'offence complained of' does not mean the section under which the offence has been committed. It means the date, place and other important particulars of the offence. As regards 'Accused's plea and examination if any' in column 6, the learned Magistrate has merely stated 'particulars stated' and then asked the accused whether he admits the accusation. Under Section 364 of the Criminal P. C., when an accused person is examined, every question put to him and the answers given by him must be recorded. As the learned Magistrate has failed to do so, the conviction must be set aside.

5. The conviction and sentence of the accused are therefore set aside.


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