Judgment

SHAH, J.: Station House Officer, Gharsiwa filed an information 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 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".

2. The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pradesh 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.

3. 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 be 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-s. (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-s. (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 reasons of his having pleaded guilty."

4. Offences under Ss. 112 and 124 of the Act with which the 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 Section 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 subs. (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) and (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 subs. (1) of S. 130 left an option to the Magistrate exercisable on a consideration of the material placed bef