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1978 DIGILAW 148 (PAT)

Pashupati Nath Sinha v. State Of Bihar

1978-07-11

P.S.SAHAY, UDAY SINHA

body1978
Judgment Uday Sinha, J. 1. These two applications under section 482 of the Code of Criminal Procedure, 1973 have been heard together as Pashupati Nath Sinha is the petitioner in both the applications as also the substantial point urged on behalf of the petitioner is common to both the applications. The prayer in both the applications is to quash the prosecution of the petitioner pending in the Court of Shri R. C. Choudhary, Special Judicial Magistrate (Transport), bhagalpur. 2. On 10-12-1974, C. B. Pandey, Enforcement Officer submitted a report before the learned Magistrate for prosecution of the petitioner under sections 112 and 123 of the Motor Vehicles Act read with rule 87 (4) of the Motor vehicles Rules. The infractions alleged in the prosecution report (annexure-1)were (i) carrying excess passengers, (ii) want of partition in drivers seat, (iii)the details not noted on body as required by rule 27, (iv) no wind screen wiper in the truck, and (v) speedometer out of order. On receipt of this prosecution report the learned Special Judicial Magi strate took cognizance of offences under sections 112 and 123 of the Motor Vehicles Act and directed issuance of summons to the petitioner, who was the owner of the truck bearing No. BRH-2375 and the driver thereof by order dated 12-12-1974. This prosecution became subject-matter of Case No.1235 of 1974. On failure of the accused to appear in answer to the summons, the learned Magistrate issued bailable warrant of arrest against them. The case was thereafter adjourned to 5-7-1975. The order-sheet of 5-7-1975 shows that processes had not been served upon the accused yet the learned Magistrate directed issuance of non-bailable warrant of arrest. The petitioner being aggrieved by the orders of the" learned Magistrate taking cognizance of the offences and issuing non-bailable warrant of arrest moved this Court on 23-9-1975 for quashing his prosecution. That gave rise to Criminal miscellaneous No.3456 of 1975. 3. Criminal Miscellaneous No.3459 of 1975 had its origin in a prosecution report dated 6-2-1975 filed by the very same Enforcement Officer, c. B. Pandey against the very same petitioner and in respect of the same truck. That gave rise to Criminal miscellaneous No.3456 of 1975. 3. Criminal Miscellaneous No.3459 of 1975 had its origin in a prosecution report dated 6-2-1975 filed by the very same Enforcement Officer, c. B. Pandey against the very same petitioner and in respect of the same truck. In this prosecution report filed before the Special Judicial Magistrate the alleged infractions were (i) failure to produce registration certificates and certificate of fitness as required by section 86 (ii) of the Motor Vehicles Act and rules 22 and 38, and (ii) absence of driving licence which amounted to contravention of rules 3 (1), 5 read with section 112 of the Motor Vehicles Act. These statutory infractions were found on a check of the truck on 6-2-1975 at Bariarpur. The checking in the earlier case had been done on 7-12-1974. In this case also the learned Magistrate took cognizance on the report of C. B. Pandey, Enforcement officer. The driver Ram Balak Yadav was present and admitted his guilt. He was, therefore, convicted and sentenced to pay a fine of Rs.300 in default to suffer simple imprisonment for two months. Summons was ordered to be issued upon the petitioner. In this case also, the petitioner not having appeared, the learned Magistrate directed issuance of bailable warrant of arrest followed by non-bailable warrant of arrest. The petitioner filed Criminal Miscellaneous no.3459 of 1975 for quashing his prosecution in Case No.145 of 1975. 4. These two applications were listed before A. Ahmad, J. In view of the importance of the point urged on behalf of the petitioner, his Lordship directed the cases to be placed before a Division Bench for hearing. The cases have thus been listed before us for final disposal. 5. It was submitted on behalf of the petitioner that the learned Magistrate shri R. C. Choudhary had no jurisdiction to take cognizance of the offences alleged to have been committed by the petitioner on the basis of the report filed by the Enforcement Officer C. B. Pandey. It was contended that the conferment of powers of Special Magistrates upon Mr. Choudhary by this High couyt was ultra vires section 13 (1) of the Code of Criminal Procedure, 1973. According to learned counsel for the petitioner, powers of a Magistrate could be conferred by the High Court only for a district and not for whole of the State. 6. Choudhary by this High couyt was ultra vires section 13 (1) of the Code of Criminal Procedure, 1973. According to learned counsel for the petitioner, powers of a Magistrate could be conferred by the High Court only for a district and not for whole of the State. 6. In order to appreciate the submission urged on behalf of the petitioner, it is necessary to take note of the notification issued by the High Court conferring powers of Special Magistrates in terms of section 13 upon Shri R. C. Choudhary. The relevant notification reads as mentioned below : 6_593_BLJ0_1978.htm It will be noticed from the above notification that Shri R. C. Choudhary, Deputy collector had been appointed Special Judicial Magistrate for all the districts of the State of Bihar to try cases under the Motor Vehicles Act. The Magistrates were also vested with powers to take cognizance of such cases as they had been authorized to try in their respective jurisdiction. The headquarter of Mr. Choudhary was to be Bhagalpur. The notification dated 31st March, 1974 was to take effect from 1-4-1974. There can be no doubt that if section 13 of the code of Criminal Procedure, 1973 did not empower the High Court to appoint special Judicial Magistrates for all the districts of the State. Mr Choudhary had no jurisdiction to take cognizance and try offences under the Motor Vehicles act. I shall, therefore, proceed to consider this aspect of the matter. 7 Mr. Parmanand Sharan Sinha for the petitioner has urged that in terms of section 13 of the Code of Criminal Procedure, 1973 the High Court could appoint Special Magistrates and clothe them with all or any of the powers conferrable on a Judicial Magistrate of the Second Class in respect to particular classes of cases or to cases generally within a district and not for the whole State. He contended that the expression "in any district" must be read as limiting the jurisdiction of the Magistrates to be vested with the said powers. According to learned counsel for the petitioner the word any had to be read in the singular and not in the plural, and therefore the High Court could not appoint Mr. Choudhary Special Magistrate for the whole State. Having given my most anxious consideration to the submissions urged on behalf of the petitioner, I regret, I am unable to find any substance in it. Choudhary Special Magistrate for the whole State. Having given my most anxious consideration to the submissions urged on behalf of the petitioner, I regret, I am unable to find any substance in it. The expression any cannot be read as referring to the singular in every case. The expression any is not a limiting expression, but it removes the limitations on the exercise of powers. In affirmative sentences the word any implies every (see Shorter Oxford English dictionary Vol. I, page 79 ). Pronominally it means any one or any body. In plural it means any person. any is a word which excludes limitations or qualification (per Fry L. J. Duck V/s. Bates, 53 LJQB 344 ; 12 QBD 79) ; "as wide as possible" (per Chittyj, Beckett V/s. Sultton, 51 I J Ch 433 ). According to Webster, the expression anymay be read asevery. In Random House Dictionary the meaning given is "one, any or some ; one or more without specification or identification as if you have any witnesses produce them. Whartons Law lexicon gives the illustration in any case has meaning under all circumstances. The word any may have one of several meanings, according to the circumstances, it miy mean "all", "each", "every", "some", or one or more out of several" (see Ram Natha Aiyar Law Lexicon of British India, page 72 ). It is thus obvious that the expression any may be read as all. Whether the expression any used| in the Statute is indicative of the singular or the plural will depend upon the contexts of each case. In case of Chandi Prasad V/s. Ramesh war Frasad agarwal and another (AIR 1967 Patna 41) in paragraph 4 it was observed as follows : - "it is, no doubt, true that the word any may, in certain context, imply all. For example, when the law provides to the effect that any of a particular class of persons, such as, the Shareholders of a company or Directors thereof, may be prosecuted for a particular offence which may be committed in connection with the conduct of the business of the Company, the use of the word any in such a context would imply that all such persons, that is, all the Share-holders or Directors, as the case may be, may be prosecuted for the offence in question. That, however, does not imply that the word any must be interpreted as meaning all in each and every case irrespective of the context in which the same has been used. " The collocation of the word any has to be paved from the context. Narasimham, c. J. in the case of Chandi Prasad (supra) held that in special facts of that case anyhad been used in the singular. In Chief Inspector of Mines and another V/s. Karam Chand Thapar etc. ( AIR 1961 SC 838 ) the question arose whether any one of the Directors used in section 76 of the Mines Act meant only one of the Directors or all the Directors and their Lordships of the Supreme court held that the word anyone of the Directors used in section 76 must be held to be every one of the Directors. In my view, therefore, there is no jurisdiction for giving the word any a narrow interpretation so as to construe that special Magistrate could be appointed only for one district. That would be frustrating the very object of the Act which empowers the High Court to appoint special Magistrate for particular classes of cases or to cases generally. The High court had ample power to clothe a Magistrate to exercise jurisdiction in respect of cases under the Motor Vehicles Act for the whole State. I would also like to point out that the notification in question contains names of 23 Special Magistrates out of which eleven Special Magistrates had been vested with powers to effect cognizance of and try cases relating to Motor Vehicles Act. They have been posted at Patna, Muzaffarpur, Dhanbad, Ranchi, Bhagalpur, Biharshariff, jamshedpur and Gaya. At Patna, Muzaffarpur and Ranchi two Special Magistrates have been appointed. I see no force in the submission urged on behalf of the petitioner that Mr. Choudhary could not have taken cognizance of the offences as he could not have been appointed Special Magistrate for the whole state. The submission is accordingly rejected as without substance. 8 Learned counsel for the petitioner next assailed the issuing of summons in ordinary form upon the petitioner and following it up by issuance of non-bailable warrant of arrest. Choudhary could not have taken cognizance of the offences as he could not have been appointed Special Magistrate for the whole state. The submission is accordingly rejected as without substance. 8 Learned counsel for the petitioner next assailed the issuing of summons in ordinary form upon the petitioner and following it up by issuance of non-bailable warrant of arrest. It was contended that the learned Magistrate was obliged to issue summons with the endorsement that the petitioner may plead guilty by registered post along with a remittance ot rupees twenty-five as the court may specify as fine. The submission is not worthy of any consideration and must be rejected outright. The provision for issuance of summons in terms of Sec.130 (1) (ii) (a) and (b) are in the alternative and cannot be read as conjunctive requiring compliance of both (a) and (b ). A similar submission had been urged in Puran Singh and another V/s. The State of Madhya Pradesh ( AIR 1965 SC 1583 : 1966 SCJ 302 ). The Supreme Court while affirming the decision of Madhya pradesh High Court rejected the submission on the ground that where an offence is not covered by Part B of the Fifth Schedule of the said Act the Megistrate had the option to issue summons either in terms of sub-clause 130 (1) (a) or (b ). The option was of the Court and not of the accused. The Supreme Court decision is a settler on the point and nothing more need be said about the submission urged on behalf of the petitioner. I would only add that the reliance placed by learned counsel for the petitioner on the case of State of Assam V/s. Suleman khan and another (1961) 2 Cr. LJ 869) was uncalled for, as it has been expressly overruled in Puran Singhs case (supra ). This submission, therefore, also must be rejected as being without any substance. 9. It was also contended that the notification appointing Mr. Choudhary as Special Magistrate was without jurisdiction, as it had been issued on 31st march, 1974 under the provisions of Code of Criminal Procedure, 1973 when it had not come into force and, therefore, the conferment of power on Mr. Chaudhary was illegal and void. This submission does not merit serious consideration and must be accordingly rejected. Choudhary as Special Magistrate was without jurisdiction, as it had been issued on 31st march, 1974 under the provisions of Code of Criminal Procedure, 1973 when it had not come into force and, therefore, the conferment of power on Mr. Chaudhary was illegal and void. This submission does not merit serious consideration and must be accordingly rejected. The Code had been brought on the Statute book earlier Notification had been issued prior to 1-4-1974 that it would come into effect from 1-4-1974. It was, therefore, most appropriate that Special Magistrates should have been created, if necessary from the very 1st day itself. That could not be done unless the notification was issued prior to 1-4-1974. In any view of the matter, the petitioners vehicle had been checked and infractions of the Motor Vehicles Act had been detected on a day when the notification was certainly in force. In that view of the matter, this submission is also devoid of any substance and must be rejected. 10. It was further contended that issuance of processes against the petitioner in Case No.145 of 1975 was an abuse of the process of the Court. It was submitted that he had been prosecuted for non-production of the registration certificate and certificate of fitness of the vehicle as well as the failure to produce the driving licence. Learned counsel for the petitioner submitted that these documents had been seized earlier in Case No.1235 of 1974 against the petitioner and, therefore, they were naturally unable to produce when demanded. Therefore the prosecution of the petitioner was an abuse of the process of the Court and deserves to be quashed.1 regret, this submission has neither factual nor legal support. The prosecution report in Case No.1235 of 1974 (annexure 1 in Criminal miscellaneous No.3456 of 1975) does not show that the certificate of fitness, registration certificate and drivers licence had been seized by the Enforcement officer. There is, therefore, nothing to support this contention on behalf of the petitioner that those documents having been seized they could not have been produced by the driver when the vehicle was checked. Further, even if, it were to be assumed that those documents had been seized by the authority earlier, that could not be any justification for plying the vehicle without the certificate of fitness, registration certificate and driving licence. Further, even if, it were to be assumed that those documents had been seized by the authority earlier, that could not be any justification for plying the vehicle without the certificate of fitness, registration certificate and driving licence. Seizure of registration certificate, certificate of fitness and driving licence would necessarily imply that the vehicle should not be plied, as section 86 of the Motor Vehicles Act and the rules thereunder make it mandatory that those documents should be in the vehicle at all times. Thus, this submission also is without any merit and must be rejected. I should add that this submission was raised only in connection with criminal Miscellaneous No.3459 of 1975. 11. All the submission urged on behalf of the petitioner having been rejected, I find no merit in these applications and they are accordingly dismissed. Application dismissed.