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1966 Supreme(Sikk) 1
SIKKIM HIGH COURT
RAJVI ROOP SINGH, J.
Raj Kumar Chauhan -Petitioner
v.
The State -Respondent.
Criminal Ref. No. 21 of 1965
Decided On : 3 -6 -1966
Advocate Appeared:
S.K. Kar, for Petitioner; H.C. Nath, Govt. Advocate, for Respondent.
The court held that the summons issued to the petitioner was not in accordance with law as it did not comply with the provisions of Section 130(1) of the Motor Vehicles Act, and that the order of conviction and sentence passed by the Magistrate was illegal and without jurisdiction.
Headnote:
MOTOR VEHICLES ACT - SECTION 130(1) - SUMMONS - REQUIREMENTS - INTERPRETATION - SECTION 112 - OFFENCE - PUNISHMENT - SECTION 64 OF INDIAN PENAL CODE - APPLICABILITY.
Fact of the Case:
The petitioner was charged with an offence under Section 112 of the Motor Vehicles Act. The summons issued to the petitioner did not comply with the provisions of Section 130(1) of the Act, which requires the summons to inform the accused that he may appear by pleader or plead guilty by registered letter and remit a sum not exceeding Rs. 25. The petitioner was convicted and sentenced to pay a fine of Rs. 20 in default of which he was to undergo 5 days' rigorous imprisonment.
Finding of the Court:
The court held that the summons issued to the petitioner was not in accordance with law and that the order of conviction and sentence passed by the Magistrate was illegal and without jurisdiction. The court further held that the offence committed by the petitioner fell under Section 123(1) of the Motor Vehicles Act and not Section 112, and that the sentence of imprisonment in default of payment of fine was not permissible under Section 123(1).
Issues: 1. Whether the summons issued to the petitioner was in accordance with law? 2. Whether the order of conviction and sentence passed by the Magistrate was legal and valid? 3. Whether the offence committed by the petitioner fell under Section 112 or Section 123(1) of the Motor Vehicles Act? 4. Whether the sentence of imprisonment in default of payment of fine was permissible under Section 123(1)?
Ratio Decidendi: 1. The court held that the summons issued to the petitioner was not in accordance with law as it did not comply with the provisions of Section 130(1) of the Motor Vehicles Act, which requires the summons to inform the accused that he may appear by pleader or plead guilty by registered letter and remit a sum not exceeding Rs. 25. 2. The court held that the order of conviction and sentence passed by the Magistrate was illegal and without jurisdiction as the summons issued to the petitioner was not in accordance with law. 3. The court held that the offence committed by the petitioner fell under Section 123(1) of the Motor Vehicles Act and not Section 112, as the allegations against the petitioner related to the terms of permit and the certificate of registration of the vehicle. 4. The court held that the sentence of imprisonment in default of payment of fine was not permissible under Section 123(1) of the Motor Vehicles Act, as the section only prescribes a sentence of fine.
Final Decision: The court accepted the reference, set aside the order of conviction and sentence passed by the Magistrate, and acquitted the petitioner. The court also directed that the fine paid by the petitioner be refunded.
This is a reference made by the learned Sessions Judge of Tripura recommending that the summons issued on the petitioner on the basis of the order dated 12-2-65, is not in accordance with law and the order passed on 7-3-65 is illegal and without jurisdiction and as such the order of conviction and sentence passed on the petitioner under S. 112 of the Motor Vehicles Act should be set aside.
2. The facts which gave rise to this reference briefly stated are these: On 31-1-65 the O. C., Fatekrey P. S. made a report for prosecution of the accused petitioner Rajkumar, Chauhan under S. 112 of the Motor Vehicles Act alleging that the petitioner was found driving the truck TRL-635 from north to south along Assam Agartala road at Beheherra with 3 passengers excluding the driver and his assistant. On receipt of the said prosecution report the S. D. M., Kailashahar by his order dated 12-2-65, transferred the case for disposal to the file of Shri M. L. Das, Magistrate 2nd Class who passed an order on the same date for issue of summons to the accused to the following effect:
"Received the case on transfer from S. D. M., Kailashahar. Issue summons to the accused fixing 25-2-65. Mention Rs. 20 to remit as fine if he pleads guilty."
Thereafter a summons was served upon the petitioner asking him to appear before the learned Magistrate on 25-2-65; but in the summons it was not mentioned that the petitioner was to remit Rs. 20 as fine, if he pleaded guilty.
On receipt of the summons the accused petitioner filed an application for revision with the summons attached before the Sessions Judge praying for quashing of proceedings on the ground that the summons was vague. The application for revision was not accompanied by the order of the learned Magistrate, therefore, on the prayer of the learned lawyer for the petitioner, the Sessions Judge granted the petitioner time till 25-3-65 for filing a certified copy of the order of the learned Magistrate. Accordingly the petitioner obtained and filed a certified copy of the order of the learned Magistrate dated 12-2-65. In the meantime on 25-2-65, the learned Magistrate passed an order to the following effect:
"Issue of fresh summons upon the accused person. To 19-3-65."
This order was followed by another order dated 7-3-65 passed by the learned Magistrate which is as follows:
"Accused Rajkumar Chauhan available at Manu camp, he is examined u/s. 242, Cri. P. C. by stating substance of accusation who pleaded guilty. He is convicted u/s. 112, M, V. Act and sentenced to pay a sum of Rs. 20 in default 5 days' R. I. Fine amount is deposited."
3. The learned Sessions Judge after hearing the lawyers has made this reference recommending that the order dated 12-2-65 is not in accordance with law and the order dated 7-3-63 is illegal and without jurisdiction and as such it should be set aside.
4. I heard the learned counsel for the petitioner and the Government Advocate and perused the record of the case.
5. The learned counsel for the petitioner while supporting the reference vehemently contended that S. 130 (1) of the Motor Vehicles Act, provides that 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.
Now the use of the word "shall" in the above sub-section makes it obligatory on the part of the learned Magistrate who has taken cognizance of the offence, under this Act, against the accused to issue summons according to the provisions of S. 130 (1), unless the offence is an offence specified in Part A of the Fifth Schedule. Offences under Ss. 123 and 112 of the Motor Vehicles Act are not offences mentioned in Part A of th
