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State Of Assam v. Suleman Khan And Another Opposite Parties.

Gauhati High Court

Jul 13, 1961

Judgment

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Summary of Legal Opinion — Mehrotra, C.J. (with Dutta, J. concurring)

Factual and Procedural Background

This revision arises from an appeal decision dated 9 November 1960 by the Additional Sessions Judge, Upper Assam Division, Dibrugarh. The prosecution originated from a report that on 23 May 1960 at about 9:30 A.M. Suleman Khan (driver) and another accused, Lalan Pathan (handyman), were driving a motor-car on the Assam Trunk Road, Tinsukia, with eighteen passengers on hire and in alleged contravention of the vehicle's permit conditions. The driver could not produce vehicle documents or his driving licence when asked.

At trial before the District Magistrate, Suleman Khan was convicted under Section 123 of the Motor Vehicles Act and sentenced to three months simple imprisonment and fined Rs. 1,000 (default three months). Lalan Pathan was tried under Section 123 read with Section 114, I.P.C., and fined Rs. 200 (default one month). The District Magistrate's order recorded that the accused were offered the option of being represented by a pleader, which they declined.

On appeal the Additional Sessions Judge held that the trial was not legal because the provisions of Section 130 of the Motor Vehicles Act and Section 342 of the Criminal Procedure Code had not been followed. The Sessions Judge allowed the appeal, set aside the District Magistrate's order and remitted the matter for retrial in accordance with Section 130 of the Motor Vehicles Act. The State filed the present revision challenging that order.

Legal Issues Presented

Whether the provisions of Section 130 of the Motor Vehicles Act are attracted in the facts of this case (i.e., whether Section 130 applied to the alleged offence under Section 123 of the Motor Vehicles Act).
Whether clause 9 of Part A of the Fifth Schedule to the Motor Vehicles Act (which covers "Any offence punishable with imprisonment in the commission of which a motor vehicle was used") brings Section 123 offences within Part A and thereby excludes application of Section 130.
Whether there was compliance with the mandatory requirements of Section 130 (specifically whether the summons stated the accused's option to either appear by pleader or, prior to the hearing, plead guilty by registering a letter and remit a sum not exceeding twenty-five rupees).

Arguments of the Parties

State's Arguments (Appellant)

The case is not covered by the provisions of Section 130 of the Motor Vehicles Act (i.e., Section 130 does not apply to the offence charged under Section 123).
Clause 9 of Part A of the Fifth Schedule applies because Section 123(1) has a second part permitting imprisonment for a subsequent offence; therefore the offence falls within "any offence punishable with imprisonment in the commission of which a motor vehicle was used."
Even if Section 130 applied, there was compliance with Section 130 because the District Magistrate gave the option before trial to the accused as to whether they intended to be represented by a pleader, and they declined that option.
Alternatively, Section 130 gives the Magistrate discretion to give either of the two options (representation by pleader or facility to plead guilty and remit a sum), so the Magistrate's choice purportedly satisfied the section.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds in two main strands: (A) whether the offence under Section 123 falls within clause 9 of Part A of the Fifth Schedule so as to exclude the operation of Section 130; and (B) if Section 130 applies, whether there was compliance with its mandatory requirement to state the accused's option in the summons.

(A) Interpretation of clause 9 of Part A of the Fifth Schedule and Section 123

The court observed that clause 9 covers "Any offence punishable with imprisonment in the commission of which a motor vehicle was used."
The State's argument treated Section 123(1) as if it comprised two distinct offences (a first-offence which attracts a fine and a later offence which may attract imprisonment). The court rejected characterising Section 123(1) as two separate offences: Section 123(1) merely prescribes that first-time offenders may be liable only to fine while subsequent convictions may attract imprisonment — it does not create two independent offences.
The court noted there is no explicit mention of Section 123 in any clause of Part A of the Fifth Schedule.
The court held clause 9 applies to offences where a motor vehicle is used in the commission of a separate offence (i.e., the vehicle is used to commit some distinct offence). By contrast, where the use of the vehicle itself constitutes the statutory offence (as in Section 123), clause 9 does not apply unless the legislature had specifically included such an offence in Part A.
The court further reasoned that clause 9 contemplates offences punishable with imprisonment; offences where imprisonment is merely an alternative or where only a fine may be possible need not be treated as within clause 9. On these bases the court concluded Section 123 is not included within clause 9 of Part A of the Fifth Schedule.

(B) Construction of Section 130 and compliance with summons requirements

The court examined the language of Section 130(1), which requires a court taking cognizance to state upon the summons that the accused "may appear by pleader and not in person, or may by a specified date prior to the hearing of the charge plead guilty ... and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify."
The State argued that the magistrate has discretion to give either option (representation or facility to plead guilty and remit) and that the magistrate's choice satisfied Section 130. The court rejected this reading as contrary to the plain language.
The court interpreted Section 130 to mean the accused must be informed in the summons that he has an option to elect either of the two alternatives (representation by a pleader or pleading guilty and remitting the specified sum). The choice, the court held, lies with the accused — not with the Magistrate.
Consequently, the Magistrate cannot selectively offer only one of the alternatives; the summons must indicate the accused's freedom to choose. The court saw this interpretation as supported by the change from "may" to "shall" in the amended text of Section 130, which made it obligatory to state the option in the summons.
The court rejected the State's contention that this reading would nullify the object of the amendment to Section 123; it held that legislative objectives cannot override the express words of the statute, and that even prior to amendment a person could be let off on payment notwithstanding higher statutory penalties.
Applying the statutory interpretation to the facts, the court found that there was no compliance with Section 130 in this case because the required option was not stated in the summons itself.

Holding and Implications

Holding: The revision filed by the State was dismissed. The court explicitly states: Revision dismissed.

Direct consequences for the parties:

The dismissal of the State's revision leaves intact the order of the Additional Sessions Judge which had allowed the appeal, set aside the District Magistrate's order and remitted the matter for retrial in accordance with Section 130 of the Motor Vehicles Act (as described earlier in the opinion).
The court did not order further remand or other relief in this opinion; it rejected the State's legal contentions and found lack of compliance with Section 130 in the original proceedings.

Broader implications: The opinion focuses on statutory interpretation of Section 123 and the mandatory summons requirements of Section 130; it does not purport to establish a new binding precedent beyond the reasoning applied in this case, nor does it discuss wider policy consequences beyond the direct effect on these proceedings.

Opinion authored by Mehrotra, C.J.; Dutta, J. concurred. (IE/D. noted in the text.)

Show all summary ...

Mehrotra, C.J:— This is an application in revision on behalf of the State against the order dated the 9th November 1960 passed by the Additional Sessions Judge, Upper Assam Division, Dibrugarh in appeal. The facts are that one Suleman Khan who was the driver of a Motor Vehicle was tried under Sec. 123 of the Motor Vehicles Act and sentenced to three months simple imprisonment and to pay a fine of Rs. 1000/- in default to simple imprisonment for three months by the District Magistrate at Dibrugarh. The other accused Lalan Pathan was also tried along with Suleman Khan under Sec. 123 of the Motor Vehicles Act read with Sec. 114, I.P.C and sentenced to pay a fine of Rs. 200/- in default to simple imprisonment for one month by the District Magistrate. On appeal the additional Sessions Judge has held that the trial was not legal inasmuch as the provisions of Sec. 130, Motor Vehicles Act and Sec. 342, Cr. P.C were not followed in the present case. He has allowed the appeal, set aside the order of the District Magistrate and sent back the case for retrial in accordance with the provisions of Sec. 130, Motor Vehicles Act.

2. The prosecution was started on a report being submitted that the accused persons on the 23rd May 1960 at 9-30 A.M were found driving the car with eighteen passengers on hire and Suleman was the driver and the other accused was the handy man. They were found driving the vehicle in violation of the permit condition on the Assam Trunk Road, Tinsukia. On being asked the driver Suleman Khan could not produce any document in support of his vehicle nor could he produce his license. The District Magistrate found on trial that they were driving in contravention of the permit condition on the road and convicted and sentenced them as indicated above. The District Magistrate has stated in his order that he had given the option to the accused persons if they would like to be represented by pleader but they declined to do so. The contention raised by the State counsel is that the case is not covered by the provisions of section 130 of the Motor Vehicles Act. He has further contended that even if Sec. 130 applies to the facts of the present case, there has been Compliance with that provision inasmuch as the option was given before the trial commenced to the accused as to whether they intended to be represented by a pleader and they declined. The point which is before us for consideration is whether on the facts of the present case the provisions of S. 130, Motor Vehicles Act are attracted or not.

3. Section 130 of the Motor Vehicles Act reads as follows:

“130.(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 registration letter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify.”

4. The remaining portion of Sec. 130 is not necessary for the purpose of the present case. Schedule Five Part A has enumerated certain offences under this Act.

5. The argument of the State counsel is that the present offence comes under clause 9 of Part A of Schedule Five which provides as follows:

“Any offence punishable with imprisonment in the commission of which a motor vehicle was used.”

6. The argument is that Sec. 123(1) of the Motor Vehicles Act consists of two parts. The first part says that if the person is found guilty of the first offence, he can be fined only but the second part says that if he is found guilty for a subsequent offence, he can be sentenced to imprisonment also. In cases where the person is tried of a subsequent offence Part 2 of Sec. 123(1) will apply and thus cl. 9 of the Fifth Schedule Part A will be attracted. We do not think that there is any force in this contention. Section 123(1) only provides that if a person is tried of a subsequent offence, be is liable to be sentenced to imprisonment but at the first trial he can only be sentenced to a fine. This does not mean that Sec. 123(1) consists of two separate offences and thus the second part of Sec. 123(1) will be covered by cl. 9 of the Fifth Schedule Part A and not the first part.

7. There is no mention of Sec. 123 in any of the clauses of the Fifth Schedule Part A, but apart from this, cl. 9 in our opinion applies only to the cases where a person is tried of an offence in the commission of which a motor vehicle is used. It does not apply to the cases where the use of a vehicle itself constitutes an offence. If the use of the vehicle itself constitutes an offence, then it will be an offence coming within Sec. 123 and if the legislature intended to include such an offence within Part A of the Fifth Schedule, that would have been specifically mentioned in the Act. Clause 9 to our mind applies only to an offence which is disconnected with the use of the motor vehicle without registration or permit, in other words, it applies only when the motor vehicle is used in the commission of a separate offence. The offence must be distinct from the use of the motor vehicle itself. Apart from this it may be said that cl. 9 only lays down that any offence punishable with imprisonment will be included in this clause. Cases where the sentence; of imprisonment is an alternative sentence or where a person can only be sentenced to fine need not come under cl. 9. In any view of the matter in our opinion the offence under Sec. 123 is not included in cl. 9 of Part A of the Fifth Schedule.

8. The next argument of the counsel for the State is that even, if Sec. 130 is attracted, there has been a proper compliance with the provision of this section. Firstly it is contended that Sec. 130 only gives an option to the Magistrate either to ask the accused to choose to be represented by a pleader or to plead guilty and remit a sum not exceeding twenty-five rupees to the court. But the choice lies with the Magistrate to give either of the two options to the accused. In our opinion that is not the correct interpretation of Sec. 130 of the Motor Vehicles Act. The plain language of S. 130 indicates that if a person is to be tried for an offence under this Act an option is to be given to the accused to choose either of the two tilings, either to be represented by a pleader or to plead guilty and pay up the amount. The choice lies with the accused and it is to be indicated in the summons itself that the choice is with the accused. He may elect either of the two procedures. The choice does not rest with the Magistrate. The Magistrate cannot choose in which cases he will give the option of the accused being represented by a pleader and in which cases he will give an option to the accused to deposit the sum and plead guilty.

9. It is contended very strenuously that if such an interpretation is given to the words of Sec. 130, it will nullify the very object of the amendment of Sec. 123. So far as Sec. 130 is concerned there has been no amendment except that the word ‘may’ has been substituted by the word ‘shall’. Previous to the amendment of Sec. 130 it was discretionary with the Magistrate to give this option to the accused or not to give it. But by the amendment by use of the word ‘shall’ it is now obligatory on the part of the Magistrate to give the accused such an, option and state that in the summons. The question therefore, of nullifying the objects underlying the change of Sec. 130 does not arise at all. If the argument of the counsel for the State is accepted then even prior to the amendment of Sec. 130, an interpretation could be given that the option lies with the Magistrate and not With the accused. If that is the contention, then the amendment in Sec. 130 is of no consequence in interpreting the language of the section.

10. It is further contended that Sec. 123 has been amended as it was realised that these offences have become very common and it was thought proper by the legislature to make provision for higher sentences in such cases. We do not think that this object in the first place will override the express meaning of the words used in the Act itself. All these rules of interpretation are only for the aid of the court to interpret the language of the section. If the plain language of the section does not justify such interpretation, no amount of difficulty pointed out by the counsel will persuade the court to interpret it differently. Apart from that even prior to the amendment a person convicted under section 123 could be sentenced to a fine of Rs. 500/- and even then if the option was exercised by the accused, he could be let off by paying rupees twenty-five only.

11. Under those circumstances it cannot be said that the object underlying the amendment of the section would be nullified by giving that interpretation.

12. It may be that the legislature thought that if the person was honest enough and pleaded guilty before the court of law he could be let off on payment of a fine irrespective of the fact whether he had been tried for the first or the second offence. But the conviction still remains and the driver is liable for the cancellation of his driving license which is a punishment by itself. ??? reading of Sec. 130, we are of opinion that the Magistrate has to state in the summons, that the accused has the option to choose either of the two alternatives. It should also be pointed out that ill the present case there was no compliance with the provision of section 130 of the Motor Vehicles Act inasmuch as the option was not stated in the summons itself. As we are dismissing the revision on merits, it is not necessary to consider the preliminary point raised by the opposite party that the present revision is not maintainable. We accordingly Reject this revision.

13. Dutta, J.:— I agree.

IE/D.

14. Revision dismissed.