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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