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Madhya Pradesh High Court · body

1987 DIGILAW 329 (MP)

KAMLASHANKAR v. STATE OF M. P.

1987-10-10

K.L.SHRIVASTAVA

body1987
K. L. SHRIVASTAVA, J. ( 1 ) THIS is an application under S. 482 of the Criminal P. C. 1973 (for short 'the Code') for quashing the order dated 11-6-1987 passed by the Judicial Magistrate First Class, Mandsaur in Criminal Case No. 132 of 1985 and for requiring him to proceed in accordance with S. 130 of the Motor Vehicles Act, 1939 (for short 'the Act' ). ( 2 ) CIRCUMSTANCES giving rise to this petition are these. The Police Inspector Traffic Police Mandsaur prosecuted the petitioners in respect of offence under S. 42/123 of the Act before the Chief Judicial Magistrate, Mandsaur who ordered issue of notice under S. 206 of the Code against them. ( 3 ) IN obedience to the notice, the non-applicants put in appearance on 5-5-84 through their Advocate. The case was later transferred to the Court of J. M. F. C. Mandsaur. After several hearing, it was on 11-6-87, when the non-applicants prayed for exemption from personal appearance, by the impugned order, their prayer has been rejected and hence this application. ( 4 ) THE petitioners' learned counsel submits that the accusation against the petitioners is of overloading in the bus and this offence is punishable under S. 42/123 of the Act with a maximum fine of Rs. 1000/-only. He urges that, therefore, in view of the provisions embodied in S. 130 (l) (ii) of the Act summons ought to have been issued as therein directed and in view of the provision their personal presence cannot be insisted upon in the trial though they have pleaded 'not guilty'. The contention of the learned counsel for the State is that the impugned order passed in exercise of discretion is not liable to be interfered with. ( 5 ) THE point for consideration is whether the application deserves to be allowed. ( 6 ) THE provision in S. 206 of the Code is in these words :- sec. 206. The contention of the learned counsel for the State is that the impugned order passed in exercise of discretion is not liable to be interfered with. ( 5 ) THE point for consideration is whether the application deserves to be allowed. ( 6 ) THE provision in S. 206 of the Code is in these words :- sec. 206. Special summons in cases of petty offence - (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under Sec. 260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate, on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader :provided that the amount of the fine specified in such summons shall not exceed one hundred rupees. (2) For the purposes of this section 'petty offence' means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1939 (4 of 1939) or under any other law which provides for convicting the accused person in his absence on a plea of guilty. "in order that the contention is properly appreciated it is necessary that the provision in S. 130 (1) together with its proviso is also reproduced. It reads thus : - s. 130. "in order that the contention is properly appreciated it is necessary that the provision in S. 130 (1) together with its proviso is also reproduced. It reads thus : - s. 130. Summary disposal of cases - (1) The Court taking cognizance of an offence under this Act - (i) may if the offence is an offence punishable with imprisonment under this 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 5th Schedule. ( 7 ) IT may be pointed out here that the offence in question is not one specified in Part-A of the 5th Schedule to the Act. ( 8 ) THE contention of the petitioners' learned counsel is that as mandatorily required the petitioners be served with the summons as required under S. 130 of the Act and irrespective of the fact whether they choose to plead guilty or to contest their personal presence cannot be insisted upon and their presence through their counsel is sufficient to meet the requirements of law. ( 9 ) IN support of his submission, the learned counsel for the petitioners has placed reliance on the decisions in Puransingh's case AIR 1965 SC 1583 and Nilamani's case AIR 1970 Tripura 72. In the last mentioned case it has been held that infraction of the provision under S. 130 (1) as amended by the Amending Act No. 56 of 1969 removing the ceiling of fine payable under clause (b), viz Rs. 25/-invalidates the trial. According to these decisions the provision regarding endorsement in summons is mandatory. The Tripura decision relates to the decision by Mobile Court. 25/-invalidates the trial. According to these decisions the provision regarding endorsement in summons is mandatory. The Tripura decision relates to the decision by Mobile Court. ( 10 ) IN the decision in Puransingh's case (supra) the contention that the summons not being in accordance with law for want of endorsement as envisaged in clause (b) of sub-section (1) of S. 130 of the Act and thus the appellant was deprived of his valuable right conferred by the section was negatived. The summons was only in accordance with S. 130 (1) (a) of the Act. The decision in Court on its own Motion v. State (Delhi Administration) AIR 1985 Delhi 483 makes an illuminating reading. It refers to Puransingh's case (supra) in which it was observed that S. 130 of the Act was enacted with a view to protect from harassment a person guilty of a minor infraction of the 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 of fine, and points out that with the amendment by Act No. 56 of 1969, the consideration which weighed with the Supreme Court in interpreting S. 130 (1) (b) is no longer available. In paragraph 15 pointing out that non-compliance with S. 130 of the Act will seriously prejudice the accused in more than one ways, it has been observed thus : -"in Nilamani Singh Tanu Singh v. The State, AIR 1970 Tripura 72 , R. S. Bindra, J. C. enumerated the various benefits that accrue to an accused in a case to which Sec. 130 of the Act applies. Indeed they are apparent from the section itself. However, the two main advantages which the procedure prescribed by Sec. 130 confers on an accused deserve to be noticed. In the first instance, as option is even under cl. (a) of sub-sec. (1) the accused can enter appearance through pleader and thereby avoid personal appearance in the Court. Secondly, if the accused pleads guilty to the charge, remits the fine as specified in the summons and forwards the licence to the court with the letter containing his plea as envisaged in sub-sec. (a) of sub-sec. (1) the accused can enter appearance through pleader and thereby avoid personal appearance in the Court. Secondly, if the accused pleads guilty to the charge, remits the fine as specified in the summons and forwards the licence to the court with the letter containing his plea as envisaged in sub-sec. (3) of Sec. 130, no further proceedings in respect of the offence can be taken against him and he will not be liable to be disqualified for holding or obtaining a licence for reason of his having pleaded guilty. Evidently these concessions are of far-reaching consequences to an accused guilty of violation of the provisions of the Act or the Rules made thereunder. Hence, there is no escape from the conclusion that any infraction of the provisions of sub-sec. (1) of Sec. 130 would invalidate the trial. "under S. 130 of the Act, the right of the accused to appear by pleader is absolute and is not dependant on his pleading guilty. ( 11 ) ON a careful consideration I find that there is force in the contention sought to be canvassed by the learned counsel for the petitioners. The object behind the provisions is to obviate needless inconvenience in petty offences. The learned Magistrate has not followed the correct procedure and his insistence on the petitioners' personal appearance at the hearing is wholly unwarranted and a situation for interference under S. 482 of the Code exists. ( 12 ) IN the result, the application is allowed. In exercise of inherent powers the impugned order dated 11-6-87 for issue of warrants and the personal presence of the petitioners is set aside. The learned Magistrate is directed to proceed with the trial against the petitioners in accordance with the mandatory provisions embodied in S. 130 (1) (ii) of the Act and not to insist on their personal presence. The record of the Court below be sent back immediately. Application allowed. .