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Major A.J. Anand Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1960CriLJ1453
AppellantMajor A.J. Anand
RespondentState
Cases ReferredState v. P. M. Varkey A.I.R.
Excerpt:
- .....road in srinagar on 8-10-1959. he was stopped and was asked to produce his driving licence and registration certificate. he failed to do so. he was summarily tried by the mobile magistrate, srinagar and was convicted under section 86/112 of the motor vehicles act and sentenced to pay a fine of rs. 10/ , in default to suffer simple imprisonment for two days. the accused filed a revision application against the order of the mobile magistrate and the sessions judge has made this reference for quashing the conviction and the sentence on the ground that the accused being an army officer the order passed by the mobile magistrate was without jurisdiction as an offence under section 86/112, motor vehicles act against an army officer was triable by court martial alone.3. the first question.....
Judgment:
ORDER

J.N. Wazir, C.J.

1. This is a reference made by the Sessions Judge Kashmir, recommending that the conviction recorded by the trial Magistrate be set aside as the Magistrate had no jurisdiction to try the accused who was a Major in the Indian Army and was triable by Court martial.

2. The facts which gave rise to this reference briefly stated are these: Major A. J. Anand who was in civil clothes was driving motor cycle No. 4892 on Club Road in Srinagar on 8-10-1959. He was stopped and was asked to produce his driving licence and registration certificate. He failed to do so. He was summarily tried by the Mobile Magistrate, Srinagar and was convicted Under Section 86/112 of the Motor Vehicles Act and sentenced to pay a fine of Rs. 10/ , in default to suffer simple imprisonment for two days. The accused filed a revision application against the order of the Mobile Magistrate and the Sessions Judge has made this reference for quashing the conviction and the sentence on the ground that the accused being an Army Officer the order passed by the Mobile Magistrate was without jurisdiction as an offence Under Section 86/112, Motor Vehicles Act against an Army Officer was triable by Court martial alone.

3. The first question for consideration is whether the offence of which the accused was charged was triable by the Mobile Magistrate or by Court martial alone. The accused Major, A. J. Anand, as appears from the certificate of the Commanding Officer is serving on active service within the meaning of Section 3(1) of the Army Act and the station of Srina gar is also an active service area. Section 69 of the Army Act contains the relevant provisions pertaining to those civil offences which are triable by Court-martial and it may foe reproduced as under :

Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by a Court martial and, on conviction, be punishable as follows....

'Civil offence' is defined in Section 3(ii) of the Army Act as follows:

Civil offence' means an offence which is trial by a criminal court.

'Criminal Court' is defined in Section 3(viii) which reads as under :

criminal court' means a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir.

We have to see whether the offence of which the accused is charged falls within the definition of 'civil offence' as given in Section 3(ii) of the Army Act. An offence Under Section 86 of the Motor Vehicles Act of the State is not a 'civil offence' as mentioned in Section 69 of the Army Act as it is not triable by any criminal Court in India. It is an offence in tills State alone and triable by a criminal Court in the State. A criminal Court of the State of Jammu and Kashmir does not come within the definition of the 'criminal court' as defined in Section 3(viii) of the Army Act and, therefore, the offence of which the accused is charged not being 'civil offence' as defined in Section 3(ii) of the Army Act is not triable by Court martial but by a Criminal Court pf the State.

4. It has been argued on behalf of the accused petitioner that the prosecution did not establish by evidence one of the important ingredients of the Section, namely, that the Police officer was in uniform at the time the offence is alleged to have been committed. Section 86 of the Motor Vehicles Act reads as wider :

86(1) The driver of a motor vehicle in any public place shall, on demand by any police or traffic officer in uniform, produce his licence for examination.

2. The owner of a motor vehicle, or in his absence the driver or other person in charge of the vehicle, shall, on demand by the registering authority or any person authorised in this behalf by the Government, produce the certificate of registration of the vehicle and, where the vehicle is a transport vehicle, the certificate of fitness referred to in Section 38.

The argument is that there is nothing to show that the police officer demanding licence was in uniform and, therefore, the prosecution not having proved an important ingredient of the Section conviction under that Section cannot be maintained. The Legislature has purposely mentioned the words 'in uniform' in the Section. The prosecution had to prove that the officer who demanded the licence was a police officer in uniform. In the absence of such a proof the conviction cannot be sustained. The learned Advocate General has argued that the accused pleaded guilty to the offence as is clear fr6m the statement recorded by the Mobile Magistrate and it should be presumed that all the ingredients of the offence were admitted by the accused.

This contention is without any force. The plea of guilty only amounts to an admission that die accused committed the acts alleged against him; and not an admission of the guilt under a particular Section of the Act. An accused person does not plead to a Section of a criminal statute. He pleads guilty or not guilty to the facts, alleged to disclose an offence under that Section. There is neither any mention in the complaint nor in the statement of the accused recorded by the Magistrate that the police officer was in uniform when he demanded licence from the accused. Under these circumstances the conviction under See. 80 Part I cannot be maintained. It has been further argued by the Advocate General that Under Section 86 Part II, the petitioner was asked to produce the registration certificate and he failed to do so.

He is, therefore, guilty of non production of registration certificate and has been rightly convicted under Part II of Section 86. Part II of Section 86 also requires that the registering authority or any person authorised in this behalf should demand registration certificate. There is nothing to show that the registration certificate was demanded by tile registering authority or by a person authorised on his behalf. The learned Advocate General has drawn our attention to Notification No. 492 C of 1956 published in the Government Gazette of 12th April 1956 by which Assistant Traffic Inspector:; have been authorised by the registering authority to demand registration certificates Under Section 86(2) of the Motor Vehicles Act.

In the present case it is not clear that it was the Assistant Traffic Inspector who demanded the registration certificate from the petitioner. It was necessary for the trial Magistrate to have mentioned the fact that the demand for registration certificate was made by the Assistant Traffic Inspector and that the petitioner failed to produce the said certificate. Unless it is specifically found by the Magistrate that the person demanding the registration certificate was an authorised person, the conviction of the petitioner under See, 86 Part II cannot be sustained. Our attention was drawn to the complaint filed by the Assistant Traffic Inspector in which it is mentioned that on 8 10 1959 he checked and found that the accused was without driving licence and registration certificate.

The averment in the complaint is not in accordance with the terms of Part (II) of Section 86 of Motor Vehicles Act and would not be of any assistance to the prosecution unless there is some evidence to establish that the person who actually demanded registration certificate was an authorised person. From the record it cannot be gathered that it was the Assistant Traffic Inspector who demanded the registration certificate from the petitioner. Under these circumstances the conviction Under Section 86(2) also cannot be maintained. I a Madras case reported in J. F. Mathias, In re A.I.R. 1949 Mad 424, it has been laid down that in a prosecution for an offence under Section. 87 (1) (a) it is the duty of the prosecution to adduce evidence to establish that the police officer concerned who had given the accused the signal to stop was in uniform at the time when the alleged offence of disregarding the signal was committed.

Mere mention in the charge that the police officer was in uniform is not enough, Similarly, in the present case the mere mention in the complaint that the Assistant Traffic Inspector checked and found the accused without driving licence and registration certificate is not enough to convict him under See. 88 of the Motor Vehicles Act, The same view was taken in another ruling of the Travancore Cochin High Court reported in, State v. P. M. Varkey A.I.R. 1951 Trav Co 215, in which it has been held that to bring the guilt Under Section 83 (1) (a) home to the accused it must be proved by the prosecution that the police officer requiring the vehicle in question to stop was in uniform.

5. The order of the Trial Magistrate in the present case is very brief and it does not show that the ingredients of the offence Under Section 86 f the Motor Vehicles Act were fully brought home to the petitioner. Even in a summary trial the statement of reasons for a conviction which the Magistrate is bound to record should present a clear statement of the facts constituting the offence and should show that each of the ingredients necessary for a conviction has been considered and held proved by the Magistrate. We, therefore, allow this reference and quash the conviction of the accused under See. 86/112 of the Motor Vehicles Act as also the sentence passed thereunder. Pine, if paid, shall be refunded to the petitioner.

S. Murtaza Fazl Ali, J.

6. I agree.


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