Sukhbir Singh And Anr. vs State
1986 Latest Caselaw 444 Del

JUDGMENT

M.K. Chawla, J.

1. Shri Sukhbir Singh, petitioner No. 1 is the conductor of bus No. DLP 2556. This bus stands registered in the name of Shri P.C. Kohli of Kohli Transport Service, 114-A, Kingsway Camp, Delhi. Petitioner No. 2 Shri S.S. Kohli is the son of the owner of Kohli Transport Service.

2. On 27-11-81 at about 6 P.M. petitioner No. 1 was driving the vehicle in Azadpur area when he was intercepted by S.I. Ranajanana Singh, (Traffic). On examination, the Sub-Inspector discovered that the bus was over loaded and was carrying 170 passengers against its carrying capacity of 70 persons. While the Sub-Inspector was in the process of preparing the challan, petitioner No. 1 escaped. After sometime, both the petitioners came there and were produced before the Mobile Court of Shri S.C. Gupta, Special Metropolitan Magistrate, Delhi. Petitioner No. 1 was served with the copy of the challan under Section 4.38 read with 7/123 of the Motor Vehicles Act while petitioner No. 2 was served with the copy of the challan under Section 22/123 of the Motor Vehicles Act, on the allegations that they were carrying 100 persons in excess against the carrying capacity of 70 persons. The petitioners denied the charge and claimed to be tried. They were directed to appear before the Court at Tis Hazari Courts Complex.

3. During the course of the trial, the petitioners moved an application dated 20-2-82 praying for the quashing of the proceedings. It was alleged that no summons were served on the accused persons as required under Section 130(2) of the Motor Vehicles Act, The entire procedure adopted by the Mobile Court is contrary to law. This application was rejected by the order of Shri Nand Kishore dated 11-3-82. The present revision petition is directed against this very order.

4. The contention of the learned Counsel for the petitioner is that their case falls within the ambit of Section 130 Part-B of 5th Schedule under which the offence is not punishable with imprisonment. In such a case, it was incumbent on the Mobile Court to have served the petitioner with a notice under Section 130 and given an option to deposit the fine. The procedure adopted by the Special Metropolitan Magistrate in serving a notice on the petitioner under Section 251 Cr PC was not contemplated by the Motor Vehicle Act. The lower court having come to the conclusion that the case of the accused/petitioners falls within the scope of Section 130, the proceedings should have been quashed. In support of this contention, reliance was placed on a Judgment report as the State v. Raghuram and Anr. 1964 (2) Cr LJ 407. The relevant observations of the Court are reproduced below:

(14) One consequence of (hef manner in which the proceedings in the Mobile Court was conducted is that the accused persons were not served with it. Prosecution has pleaded that was so, because the accused persons were physically present before the Court. In a summons case, scheme of the Code is that at the first instance, summons shall be issued and served on the accused ; if he fails to obey the summons, then only a warrant of arrest will be issued and by execution thereof the accused shall be brought before the Court under arrest. Even when the accused person is present in Court without any process having been issued against him, there is necessity of service of summons, to give notice to the accused what charge he is being called upon to answer. That the Magistrate has to explain the substance of accusation to him by compliance of Section 242 Criminal Procedure Code is not a complete substitute for that notice, because the right to be defended connotes that upon such notice the accused should come prepared in his mind if he will defend or plead guilty.

It is also contended that petitioner No. 2 is not the registered owner of the bus in question and was not liable to be challaned.

5. None of these arguments prevailed with the court below and the application was dismissed on the short ground that even though the case of the accused falls within the scope of Section 130 of the Motor Vehicles Act, but the learned Counsel for the accused has not been able to point out any provision of law under which this court can quash the proceedings instituted before a court of Special Magistrate and transferred to this Court.

6. The reasoning of the learned Metropolitan Magistrate even though is not a valid one, but certainly the result of the dismissal of the application is justified on other grounds. I am in entire agreement with the reasoning of the learned Counsel for the petitioners that the Motor Vehicles Act being a Special Act, the provisions of Section 251 of the Code of Criminal Procedure should not have been invoked. The accused should have been proceeded in accordance with the procedure laid down in Section 130 of the Motor Vehicles Act. The question that now requires going into is as to whether the petitioners have suffered any prejudice in the issuance of a notice under Section 251 of the Code of Criminal Procedure instead of serving them with the summons as laid down in the Motor Vehicles Act. The purpose of the issuance of notice was to apprise the accused persons of the contravention of the provisions and their liability to on the fine on the plea of guilt, or claim trial. There was no duty, either of the court or of the State as prosecutor to make a lawyer available to the accused persons as the trial by the Magistrate before whom the accused were produced. What was necessary was that if the accused parsons wanted to defend themselves at the trial the right to be defended by a lawyer should not be denied. This has happened in the present case. After the accused were told of the violation of the traffic rules and a copy of the Chilian was handed over and explained to them both the accused persons instead of pleading guilty and paying the fine claimed a trial before a regular court. On their plea, the accused were afforded with an opportunity to appear before the court on a particular day and defend themselves. It is not a case where the accused persons, in the absence of a legal advice, were forced to plead guilty and pay the fine. To my mind, this is not a valid ground to quash the proceedings.

7. However, there is another aspect on which arguments were addressed which was not taken note of by the court below in discussing of the application It in the case of the prosecution that at the time of interception of the bus it was carrying 170 passengers. This is so stated in the notice under Section 251 of the Code of Criminal Procedure. According to the accused the carrying capacity is 54 whereas the allegation of the prosecution is that is 70 Even assuming for the sake of arguments that the but could accommodate 70 passengers in sitting and standing portion but it goes beyond one's comprehension that it could accommodate and carry as many as 170 passengers. It is just not possible. There is much substance in the contention of the learned Counsel for the petitioners that even if the additional passengers are put in the bus not in person but by cutting into pieces, even then the bus will not accommodate such a large number of persons. It appears that some other consideration weighed with the Mobile Court to initiated the present proceedings against the driver of the bus belonging to M/s. Kohli Transport Service. It has come on record that previously also, Shri's C Gupta, the Special Magistrate has challaned Shri Charan Singh, another driver of this Company and during the pendency of the said proceedings the owners had moved an application for Contempt of Court proceedings before Shri Gupta. There is nothing on record as to what happened with the said challan or contempt of court proceedings. Without expressing any opinion on the merits of the case of the previous challan, I am inclined to conclude that in the present case, the contents of the notice showing 170 passengers in the bus are not believable. Secondly, petitioner No. 2 is admittedly not the registered owner of the bus in question and was not liable to be challaned under any of the provisions of the Motor Vehicles Act. With these observations, I am of the view that no useful purpose will be served to let the proceedings continue which started as far back as 1981. I, therefore, accept the petition and quash the proceedings pending against the present petitioners. Ordered accordingly.