The judgment established the mandatory nature of the provisions under S.130(1)(ii) and the discretion of the magistrate under S.130(1)(i) in the context of the Motor Vehicles Act, emphasizing the need to avoid abuse of the process of court and miscarriage of justice.

1. In S.T. case No. 4059 of 1985 before the Judicial Second Class Magistrate I, Kozhikode the petitioner was prosecuted for certain offences punishable under the general provision for punishment of offences contained in S.112 of the Motor Vehicles Act, 1939 for violations of certain provisions of the rules. The offences do not come under Part A of the Fifth Schedule. The offences are punishable with fine only and not with imprisonment.

2. S 130 of the Motor Vehicles Act reads: "130. Summary disposal of cases.-The Court taking cognizance of an offence under this Act

(i) may, if the offence is an offence punishable with imprisonment under Act, and

(ii) shall, in any other case, 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 the maximum fine that may be imposed for the offence) as the Court may specify:

Provided that nothing in this sub-section shall apply to any offence specified in Part A of the Fifth Schedule."

3. The Magistrate issued summons to the petitioner to appear in person or by Pleader. He engaged a lawyer who filed a petition under S.130 for permission to the petitioner to appear through him. The Magistrate passed the order dated 19-9-1985 which reads:

"Summonses u/s. 130 M. V. Act were issued in S. T. 4059/85 to the accused by this Court. Since the provisions of S.130 are clear in this aspect, I am not inclined to accept the contentions raised by the counsel. Hence this petition is dismissed." It is to quash this order and for permission to appear through Pleader and defend himself that this petition under S.482 of the Code of Criminal Procedure was filed.

4. S.206 of the Code of Criminal Procedure, 1973 contains a provision, though not identical, but on similar principles. That provision was introduced on the recommendation of the Law Commission in its 14th report that a provision similar to S.130 of the Motor Vehicles Act will have to be introduced. The idea is to avoid harassment to persons involved in minor offences by making them appear in person before court. S.206 of the Criminal Procedure Code deals with petty offences and the discretion is given to the Magistrate to decide whether the case has to be disposed of summarily under S.260 of the Criminal Procedure Code. If he decides to have the case disposed of summarily special summons will have to be issued to the accused requiring him either to appear in person or through pleader or if he desires to plead guilty, to transmit the plea with the amount of fine specified in the summons or if he desires to appear by Pleader and plead guilty, to do so. If such special summons is not being issued, reasons will have to be recorded

5. That provision is not applicable here because the Motor Vehicles Act which is a special statute has prescribed a special procedure. That procedure is in conflict with the general provision contained in S.206 of the Code of Criminal Procedure. Regarding cases coming under S.130 of the Motor Vehicles Act, that provision has an overriding effect on the general provisions of S.206 of the Code of Criminal Procedure.

6. As between S.130(1)(i) and (ii) there is an ocean of difference. S.130(1)(i) provides that if the offence is punishable with imprisonment, under the Act, the Court taking cognizance'may' state in the summons that the accused may appear by pleader and not in person or that he can plead guilty by registered post and remit the fine. That is left to the discretion of the magistrate. But if the offence is not punishable with imprisonment under the Act which means that it is punishable with fine only, the word used is 'shall' in contradistinction with 'may' used earlier. In such cases the provision is mandatory and the magistrate has no discretion. The discretion is only to adopt one of the courses either