SUKHBIR SINGH Vs. STATE

JUDGEMENT

(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.) 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: