NISHAD A R Vs. STATE OF KERALA

JUDGEMENT

(1.) Ext. P2, special summons for a petty offence issued by the learned Judicial First Class Magistrate-III, Thrissur in S.T. No. 3011 is under challenge in this proceeding at the instance of the accused.

(2.) Vide Ext. P2, petitioner was summoned to appear before learned Magistrate on 2.6.2011 to answer a charge under 'Section 138 of the Motor Vehicles Act' (for short, "the Act")- According to the learned Counsel, allegation against him is that he drove vehicle bearing registration No. KL-8-T-7257 without wearing seat belt on 26.4.2011 at about 5.30 p.m.-The Ollur Police registered S.T. No. 3011 of 2011 for the said, alleged offence. It is contended that on that day, petitioner was at Chennai as could be seen from Ext. P3, photocopy of attendance register. The more forcible argument is that 'Section 138 of the Act' does not prescribe any offence, instead it only conferred power on the State Government to make rules for enforcing provisions contained in Chapter VIII of the said Act other than matter specific under Section 137 of that Act. It is argued by learned Counsel that Ext. P2, special summons does not also conform to the mandatory requirements under Section 206 of the Code of Criminal Procedure (for short, "the Code"). On these grounds it is prayed that Ext. P2, special summons may be quashed. I have heard learned Public Prosecutor also who took notice for the respondents.

(3.) So far as the argument that at the relevant time petitioner was at Chennai is concerned, I am afraid, that is not a matter which this Court has to decide in a proceeding under Article 226 of the Constitution of India. That involves disputed questions of fact and, with opportunity to the prosecution to meet it, has to be urged before the Trial Court.