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1995 DIGILAW 140 (KER)

Nazeer v. State

1995-04-06

K.P.BALANARAYANA MARAR

body1995
Judgment :- Petitioner is the accused in S.T.1168/94 before Judicial First Class Magistrate, Kayamkulam. A crime was registered against him under S.188(a) of the Motor Vehicles Act. While the Sub Inspector of Police, Kayamkulam, inspected the vehicle KRZ 9777 on 31-12-93 at about 2 a.m. when it was being driven by the accused along Kayamkulam - Thattarambalam public road the Sub Inspector found the accused drunk. He was sent for chemical examination and the report obtained. After taking cognizance of the offence the Magistrate issued summons. The matter was entrusted by the accused with his lawyer who filed C.M.P. 1625/95 seeking permission to plead guilty for and on behalf of the accused under S.208 of the Motor Vehicles Act. The Magistrate dismissed the petition observing that the summons issued by the court is in accordance with the provisions contained in S.208 of the Act and S.185(a) is an offence punishable with imprisonment upto 6 months or fine upto Rs.2000/- or both. That order is under challenge in this petition filed under S.482 Cr.P.C. 2. Heard counsel for petitioner. 3. Petitioner is alleged to have committed an offence punishable under S.185(a) of the Motor Vehicles Act. Driving by a drunken person or by a person under the influence of drugs is made punishable under that section. Whoever, while driving, or attempting to drive a motor vehicle has in his blood alcohol in any quantity, howsoever small the quantity may be, shall be punishable for the first offence with imprisonment for term which may extend to six months or with fine which may exend to two thousand rupees or with both. S.208 of the Act provides for summary disposal of cases. Subsection (1) of that section states that the court taking cognizance of any offence under this Act other than an offence which the Central Government may by rules specify in this behalf may, if the offence is an offence punishable with imprisonment under this Act and shall in any other case state upon the summons to be served on the accused person that he may appear by pleader or in person or may by a specified date prior to the hearing of the charge, plead guilty to the charge and remit to the court, by money order, such sum as the court must specify and the plea of guilt indicated in the money order coupon itself. The sub-section contains a proviso that the court shall in the case of any of the offences referred to in sub-section (2) state upon the summons that the accused person, if he pleads guilty, shall so plead in the manner specified in clause (b) of sub-section (1) and shall forward his driving licence to the court with his letter containing such plea. Sub-clause (b) referred above relate to the plea of guilt and the indication of the same in the money order coupon. It is provided in sub-section (2) that where the offence dealt with in accordance with sub-section (1) is an offence specified by the Central Government by rules for the purpose of this sub-section, the court shall, if the accused person pleads guilty to the charge and forward his driving licence to the court with the letter containing his plea, make an endorsement of such conviction on his driving licence. By the summons issued by the Magistrate the accused was directed to appear in person or by pleader on 8-3-1995. The summons is seen to have issued under S.68 of the Code of Criminal Procedure. This is in accordance with sub-clause (a) of sub-section (1) of S.208. In a case where the offence is punishable with imprisonment under the Act the court has a discretion to state in the summons to be served on the accused person that he may (i) either appear in person or through pleader, or (ii) he may plead guilty to the charge and remit such sum as the court must specify and indicate the plea of guilt in the money order coupon. In the present case the Magistrate has directed the accused to appear in person or through pleader and the offence is one punishable with imprisonment under the act. the procedure adopted by the Magistrate is therefore in accordance with sub-section (1) of S.208. The Magistrate is given discretion in the case of an offence punishable with imprisonment to issue summons directing the accused to appear by pleader or in person or to plead guilty by a specified date prior to the hearing of the charge. But that discretion is not available in the case of an offence not punishable with imprisonment under the Act. But that discretion is not available in the case of an offence not punishable with imprisonment under the Act. In such a case the Magistrate shall state in the summons that the accused may appear in person or through pleader or may by a specified date prior to the hearing of the charge plead guilty. When such a discretion has been given to the Magistrate and the discretion was exercised by him in one manner it is not open to this court to interfere with mat discretion in exercise of the powers under S.482 of the Code. 4. In this connection learned counsel lays considerable stress on the exclusion of the offences which the Central Government may specify in mat behalf as provided in S.208 of the Act. Sub-section (1) of that section enables the court to dispose of cases summarily. The manner in which the summons has to be issued also finds a place therein. But this is not applicable to an offence which the Central Government may by rules specify in that behal f. Such specification, according to counsel was made in R.164 of the Central Rules. The offences for the purpose of sub-section (1) of S.208 are classified thereunder and that includes driving while under the influence of drinks or drugs. The contention is that an offence under S.185 of the Act is taken out of the purview of S.208. If this contention is stretched further the Magistrate will have no jurisdiction to try the case summarily whereas he will have to follow the summons trial procedure. That does not appear to be the intention of the legislature. The proviso to sub-section (1) directs that the court shall in the case of any of the offences referred to in sub-section (2) state on the summons that the accused person if he pleads guilty shall so plead in the manner specified in sub-clause (b) of sub-section (1) and shall forwardhis driving licence with his letter containing such plea. Sub-section (2) stipulates that where the offence dealt with in accordance with sub-section (1) is an offence specified by the Central Government by rules for the purpose of that sub-section the court shall, if the accused person pleads guilty to the charge and forward his driving licence to the court with the letter containing his plea, make an endorsement of such conviction on his driving licence. In other words, the forwarding of the driving licence to the court with the letter containing plea of guilty is applicable only to sub-clause (b) of sub-sec.(i) of S.208 and not to sub-clause (a) which gives a discretion to the Magistrate to issue a summons to be served on the accused person that he may appear by pleader or in person. The specification of the offences under R.164 of the rules is only for this purpose and not for the purpose of sub-clause (a) referred above. The offence for which petitioner is charged is one punishable with imprisonment for a period of six months and in such a case it is left to the Magistrate whether the summons should be issued in accordance with sub-clause (a) or sub-clause (b) of sub-section (1). 5. In support of his contention that even in a case of an offence punishable with imprisonment the Magistrate cannot insist appearance of the party, reliance is placed on the decision of the Supreme Court in Puran Singh v. State of M.P. (AIR 1965 SC 1583). The Supreme Court was interpreting identical provision containing in the Motor Vehicles Act of 1939. It was held that section 130 corresponding to S.208 of the present Act 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/ - as the provision as it stood then. The provision in S.130 is more or less identical to S.208 of the present Act except the inclusion of the words "other than an offence which the Central Government may by rules specify in this behalf. The proviso to sub-section (1) of S.130 of the Act of 19 39 stated that nothing in that sub-section shall apply to any offence specified in Part-A of the V schedule. the V Schedule to that Act consists of two parts. The driving while under the influence of drinks or drugs is one of the offences included in part-A. The proviso makes it clear that the provisions in sub-section (1) of S.130 do not apply to such a case. In other words, mat offence cannot be tried summarily. the V Schedule to that Act consists of two parts. The driving while under the influence of drinks or drugs is one of the offences included in part-A. The proviso makes it clear that the provisions in sub-section (1) of S.130 do not apply to such a case. In other words, mat offence cannot be tried summarily. Specific provision is contained in sub-section (2) of that section regarding the plea of guilt in respect of the offences mentioned in Part-B of Schedule V. The Supreme Court while interpreting this provision observed that the procedure in subsection (1) of S.130 applies to cases in which the offence charged is not one of the offences specified in Part A of the V Schedule, but applies to the other offences under the Act. It was held that the Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-section (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) and (b) to hold that he is so commanded would be to convert the conjunction "or" into "and". It is observed that 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 Supreme Court ultimately held that the Magistrate is not obliged in offences not specified in Part A of the V Schedule to make an endorsement in terms of clause (b) of sub-section (1) of S.130 of the Act. It was also held: "It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committed, 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." 6. In the light of the principles laid down by the Supreme Court the specification of the offences in R.164 can only relate to sub-section (2) of S.208, that is in the matter of forwarding a driving licence along with the letter containing the plea of guilt for the purpose of making an endorsement of such conviction on the driving licence. In the light of the principles laid down by the Supreme Court the specification of the offences in R.164 can only relate to sub-section (2) of S.208, that is in the matter of forwarding a driving licence along with the letter containing the plea of guilt for the purpose of making an endorsement of such conviction on the driving licence. The summons asking the accused to plead guilty can only be under sub-clause (b) of subsection (1) of S.208 and that is applicable only to cases other than an offence punishable with imprisonment, it is the discretion of the magistrate to state in the summons to be served on the accused person that he may appear by pleader or in person or may plead guilty to the charge. The Magistrate in the present case has exercised the discretion vested in him under sub-section (1) of S.208 and rejected the request of the accused to appear through pleader and plead guilty. The summons issued to the accused directs him to appear in person or through pleader in accordance with sub-clause (a) of subsection (1) of S.208. The Magistrate has not committed any illegality or irregularity in issuing the summons in that form. No interference is therefore called for. For the aforesaid reasons the CrI.M.C. is dismissed.