The court held that the Magistrate's failure to comply with the mandatory provisions of the Criminal Procedure Code and the Motor Vehicles Act rendered the trial illegal and void.

Kanhaiya Singh, J.

1. There is a reference under Sec. 438, Criminal P. C., by the Sessions Judge of Patna for quashing the conviction of Mr. P. Mukherji on the ground of illegality.

2. This reference cannot but be accepted. It provides a flagrant example of magisterial vagary, where all canons of justice were totally disregarded. The case is simple but the principles involved are of the highest importance to the people of this State. Mr. P. Mukherji owns the car bearing Registration No. BRA 55 and holds a driving licence whose number is 585/41. There is no dispute about that. The case of the prosecution is that at 8 P. M. on 29. 6-1955, he was driving his car near the Mithapur Railway Crossing and when the police officer on duty challenged him, he did not produce the necessary documents relating to his car, driving license, tax token etc. The police officer submitted then and there to the Sub-divisional Magistrate in charge traffic checking a report alleging commission of an offence under Sec.112/12, Motor Vehicles Act, and the appellant was also produced before him. The hearing was short and quick and the appellant was adjudged guilty and sentenced to pay a fine of Rs. 25. The Magistrate recorded the following order:

Took cognizance under Sec.3/112, Motor Vehicles Act, against Sri P. Mukherji S/o R. S. Phanindra Nath Mukherji. He was found driving the car No. Sic BR 55 on 29-6-1955 without the card and a licence. He pleads guilty and is fined Rs. 25/-, I. D. to S. I. for two weeks.

The appellant in vain bewailed and pleaded before the Magistrate. His case is that he complained to the Magistrate that his detention was wholly illegal when the Police had been told the car number and license number. Me further wanted only ten minutes time to produce the license from his residence on Sir Ali Road, but he was not allowed to go. The Magistrate paid no heed and pronounced a judgment that he was fined rupees twenty-live. The appellant had no money and begged for ten minutes time to fetch the money from home, but his entreaties failed to move the Magistrate and the appellant was obliged to borrow from the Patna Kirana Stores to obtain his release.

3. The order of the Magistrate is vitiated by (i) non-observance of the prescribed procedure for trial of such cases and (ii) the absence of legal basis for conviction.

4. It was a summons case and the procedure for trial of summons cases is contained in Chap, XX, Criminal P. C. As will appear from Sec.241, compliance with the procedure laid down in the said Chapter is imperative. The first thing a Magistrate is to do on the production before him of an accused is to explain to him the particulars of the offence. Sec.242 lays down that when the accused appears or is brought before the Magistrate, the particulars of : the office of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge. This section consists of two parts.

Under the first part the substance of the charge is to be explained to the accused. After this has been done, the second part comes into operation, namely, the accused should be asked if he pleaded guilty to the charge or not. There is no compliance with Sec.242 unless, after the offence is explained to him, he is also specifically asked to show cause why he should not be convicted. A failure to comply with either will render the trial illegal if it has occasioned prejudice to the accused. In the instant case there was wholesale disregard of the provisions of this section. The order-sheet, quoted above, does not show that the offence was stated to the appellant, or that he was asked to show cause against his conviction. The learned Sessions Judge asked for a report from the Magistrate on this point and the Magistrate conceded that the provisions of Sec.242 were not followed. The question is what is the effect of non-compliance with the provision