Full Judgment Text
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PETITIONER:
POORAN SINGH AND ANOTHER
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT:
03/02/1965
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
CITATION:
1965 AIR 1583 1965 SCR (2) 853
ACT:
Motor Vehicles Act, 1939 (4 of 1939), s. 130(1)-Endorsement
on summons-Failure-Whether vitiates.
HEADNOTE:
For offences under ss. 112 and 124 of the Motor Vehicles
Act, the Magistrate issued process against the appellants
for their appearance in court by pleader, but did not make
any endorsement thereon in terms of s. 130(1)(b) of the Act.
The appellants submitted that the summons served on them
were not according to law and the failure to make this
endorsement had deprived them of their right conferred by
the Act to intimate without appearing in Court their plea of
guilty and remitting an amount not exceeding Rs. 25 as may
be specified. The trial Magistrate rejected this plea, but
on being moved by the appellants, the Sessions Judge made a
reference to the High Court recommending that the order
passed by the Magistrate be set aside. The High Court
declined to accept the reference. In appeal by certificate
:
HELD : The Magistrate was not obliged in offences not
specified in Part A of the Fifth Schedule to make an
endorsement in terms of s. 130(1) (b) of the Act. [857 D]
The Magistrate taking cognizance of an offence was bound to
issue summons of the nature prescribed by sub-s. (1) of s.
130. But there is nothing in that subsection which
indicates that he must endorse the summons in terms of both
cls. (a) & (b) : to hold that he was commanded would be to
convert the conjunction "or" into "and". [855 H-856 All]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 215 of
1963.
Appeal from the judgment and order dated April 30, 1963 of
the Madhya Pradesh High Court in Criminal Revision No. 24 of
1963.
Ravinder Narain, O.C. Mathur and J. B. Dadachanji, for the
appellants.
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I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Shah, J. Station House Officer, Gharsiwa filed an informa-
tion in the Court of the Magistrate, First Class, Raipur
against the two appellants complaining that they had on
March 10, 1962 allowed three passengers to occupy the front
seat in a public carrier and had loaded goods in excess of
the sanctioned weight, and had,
854
thereby committed offences punishable under ss. 124 and 112
of the Motor Vehicles Act 4 of 1939. The Magistrate issued
process against the appellants for their appearance in Court
by pleader, but did not make any endorsement thereon in
terms of s. 130(1)(b) of the Act. The appellants submitted
that the summonses served upon them were not according to
law and the Magistrate by failing to make an-endorsement on
the summonses as required by cl. (b) of sub-s. (1) of s. 130
of the Act had deprived them of the right conferred by the
Act to intimate without appearing in Court their plea of
guilty and remitting an amount not exceeding Rs. 25/- as may
be specified. The Magistrate rejected this plea and
directed that the case against the appellants be "proceeded
further according to law".
The Sessions Judge, Raipur in a petition moved by the
appellants made a reference to the High Court of Madhya Pra-
desh recommending that the order passed by the Magistrate be
set aside, for in his view the Trial Magistrate having
failed to comply with the mandatory terms of S. 130(1) (b)
the proceeding against the appellants was unlawful. The
High Court of Madhya Pradesh declined to accept the
reference. Against that order, with certificate granted by
the High Court, the appellants have preferred this appeal.
Section 130 of the Motor Vehicles Act which
occurs in Ch. IX which relates to "Offences,
penalties and procedure" provides:
" (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
855
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."
Offences under ss. 112 & 124 of the Act with which the
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appellants were charged are not included in the first part
of the Fifth Schedule to the Act, and the Magistrate was
therefore bound to comply with the terms of s. 130(1).
There can be no doubt on the plain terms of s. 130(1) that
the provision is mandatory. But there was difference of
opinion about the nature of the duty imposed by sub-s. (1)
upon the Court taking cognizance of the complaint. The
Sessions Judge held that a Magistrate taking cognizance of
an offence of the nature specified had, by virtue of s.
130(1), to make an endorsement on the summons in terms of
cls. (a) & (b) and thereby to give an option to the person
charged either to appear by pleader or to plead guilty to
the charge by registered letter and remitting therewith the
sum specified in the summons, and if the Magistrate failed
to give that option, the proceedings initiated would be
liable to be set aside as infringing the mandatory provision
of the Act. The High Court was of the view that sub-s. (1)
of s. 130 left an option to the Magistrate exercisable on a
consideration of the materials placed before him when taking
cognizance of an offence to issue a summons without
requiring the accused to appear by pleader to call upon him
to plead guilty to the charge by registered letter and to
remit the fine specified in the summons. According to the
High Court therefore the Magistrate had the option to issue
a summons with an endorsement in terms of sub-s. ( 1 ) (a)
or of sub-s. (1) (b) and only if a summons was issued with
the endorsement specified by sub-s. (1) (b) it was open to
the accused to avail himself of the option to plead guilty
and to claim the privilege mentioned in sub-s. (3).
In our judgment the High Court was right in the view it has
taken. The Magistrate taking cognizance of an offence is
bound to issue summons of the nature prescribed by sub-s.
(1) of S. 130. But there is nothing in that sub-section
which indicates that he must endorse the summons in terms of
both the clauses (a) & (b): to hold that he is so commanded
would be to convert the conjunc
4Sup./65-8
856
tion "or" into "and". There is nothing in the words used by
the Legislature which justifies such a conversion, and there
are strong reasons which render such an interpretation
wholly inconsistent with the scheme of the Act.
The procedure in sub-s. (1) of s. 130 applies to cases in
which the offence charged is not one of the offences
specified in Part A of the Fifth Schedule, but applies to
the other offences under the Act. The maximum penalty which
is liable to be imposed in respect of these offences defined
by the Act is in no case Rs. 25/- or less. It could not
have been the intention of the Legislature that the
offender, even if the case was serious enough to warrant the
imposition of the maximum penalty which is permissible under
the section to which the provision is applicable, to avoid
imposition of a hi-her penalty than Rs. 25/- by merely
pleading guilty. Section 130, it appears, was enacted with
a view to protect from harassment a person guilty of a minor
infraction of the Motor Vehicles Act or the Rules framed
thereunder by dispensing with his presence before the
Magistrate and in appropriate cases giving him an option to
plead guilty to the charge and to remit the amount which can
in no case exceed Rs. 25/-. If the view which prevailed
with the Sessions Judge were true, a person guilty of a
serious offence meriting the maximum punishment prescribed
for the offence may by pleading guilty under sub-s. (1) (b)
escape by paying an amount which cannot exceed Rs. 25/-.
Again the Magistrate is authorised under s. 17 of the Act in
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convicting an offender of an offence under the Act, or of an
offence in the commission of which a motor vehicle was used,
in addition to imposing any other punishment to pass an
order declaring the offender unfit for holding a driving
licence generally, or for holding a driving licence for a
particular class or description of vehicle. Such an order
may be passed if it appears to the Court, having regard to
the gravity of the offence, inaptitude shown by the offender
or for other reasons, that he is unfit to obtain or hold a
driving licence. But if the offender avails himself of the
option given to him by the Magistrate of pleading guilty, no
further proceeding in respect of the offence can in view of
sub-s. (3) of s. 130 be taken against him, and he will not
be liable to be disqualified for holding or obtaining a
licence, though he may otherwise eminently deserve to be
disqualified for holding a licence.
It is true that to an offence punishable with imprisonment
in the commission of which a motor vehicle was used S.
130(1)
857
does not apply: see Sch. Five Part A Item 9. But there are
offences under the Motor Vehicles Act which do not fall
within that description and also do not fall under other
items, which are punishable with imprisonment e.g. S.
113(2). There are also certain offences which, if repeated
but not otherwise, are liable to be punished with
imprisonment e.g. certain offences under ss. 118A and under
s. 123 of the Act. It would be difficult to hold that the
Legislature could have intended that irrespective of the
seriousness or gravity of the offence committeed, the
offender would be entitled to compound the offence by paying
the amount specified in the summons, which the Magistrate
would be bound to accept, if the contention raised by the
appellants is correct.
Having regard to the phraseology used by theLegislator
which prima facie gives a discretion to the Magistrate
exercisable at the time of issuing the summons, and having
regard also to the scheme of the Act, we are of the view
that the HighCourt was right in holding that the
Magistrate is not obliged in offences not specified in Part
A of the Fifth Schedule to make an endorsement in terms of
cl. (b) of sub-s. (1) of s. 130 of the Act. We are of the
opinion that the view to the contrary expressed by the High
Court of Allahabad in State of U.P. v. Mangal Singh(1) and
the High Court of Assam in State of Assam v. Suleman Khan(2)
on which the Sessions Judge relied is not correct.
The appeal therefore fails and is dismissed.
Appeal dismissed.
(1)(1962) 1 Cr.L.J. 684.
(2)(1961) 2 Cr.L.J. 869.
858