NAZEER Vs. STATE

JUDGEMENT

(1.) Petitioner is the accused in S.T. 1168/94 before Judicial First Class Magistrate, Kayamkulam. A crime was registered against him under S.185(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 extend to two thousand rupees or with both. S.208 of the Act provides for summary disposal of cases. Sub-s.(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-s.(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-s.(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-s.(2) that where the offence dealt with in accordance with sub-s.(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-s.(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-s.(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. 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 that discretion in exercise of the powers under S.482 of the Code.