CHANDRAKANT SHANTARAM CAUTONKER Vs. STATE

JUDGEMENT

(1.) This is a reference made by the learned Sessions Judge under Section 438 of the Code of Criminal Procedure. The recommendation, in substance, made by him is that the sentence of fine of Rs. 150/- imposed by the learned Magistrate for an offence under Sec. 48(3)(vii) of the Motor Vehicles Act, 1939, read with the relevant rules thereunder and conditions of permit, is in excess of the maximum limit of fine provided under Section 112 and, therefore, it should be set aside.

(2.) The material facts leading to this reference are that the respondent was tried summarily for contravening the provisions of Section 48(3)(vi) of this Act. (Clause (vii) mentioned is a mistake). The accusation against him was that on 26th September, 1968, at 19.30 hrs. he had carried, in a bus driven by him, 30 extra passengers. The learned Magistrate dealt with this case as a summons case, under Chapter XX of the Criminal Procedure Code (hereinafter referred to as "the Code"). He tried it summarily in accordance with the provisions of Chapter XXII of the Code. The respondent in his examination denied that he had taken extra passengers. The number of such extra passengers was 30. The prosecution examined four witnesses in support of the accusation against the respondent. In his defence the respondent examined a witness by name Sadananda Assonorcar. This witness deposed that the respondent had not carried extra passengers as alleged. The four prosecution witnesses deposed in clear terms that he had carried extra passengers as stated by them. The learned Magistrate accepting the prosecution evidence convicted him under Section 48(3)(vii) and sentenced him to pay a fine of Rs. 150/-. This sentence was passed by him presumably relying on Section 112 of the Act. A revision petition was filed against the conviction and the sentence recorded by the learned Magistrate in the Sessions Court. The learned Sessions Judge after considering the arguments urged on behalf of the respondent and the State, made the above recommendation. He also took note of the argument advanced on behalf of the respondent that failure to examine the respondent under Section 342 of the Code had caused prejudice to him. The learned Sessions Judge beyond taking notice of this argument did not make recommendation that the sentence of fine imposed should be set aside because of failure to comply with the provisions of this section. This, in short, is the background of the case leading to the reference.

(3.) Mr. S.K. Kakodkar, learned counsel for the respondent, contends that the provisions of Section 342 are also applicable to summons cases and, in support of this contention, he cites Emperor V/s. Kondiba Balaji , 1940 AIR(Bom) 314. This is a Division Bench judgement of the Bombay High Court, and, according to the learned Chief Justice, with whom his brother Judge agreed, every failure to comply with Section 342 of the Code does not necessarily vitiate the trial. If the Court is satisfied that failure to comply with the strict terms of the Section has caused no prejudice, the court should not interfere. The provisions of Section 537 of the Code would cover such a case. The learned Chief Justice also observed that Sec. 342 applies even to summons cases tried summarily under Section 263 and the accused is prima facie prejudiced if no statement is taken at all. In reaching this decision the Division Bench relied on an earlier decision Emperor V/s. Fernandez , 1921 AIR(Bom) 374 and also Mahommed Hossain V/s. Emperor ,1914 AIR(Cal) 663 decided by the Calcutta High Court. As against this view, the learned Single Judge of the Andhra Pradesh High Court came to the conclusion after considering the scheme of the trial of summons cases under Chapter XX and also mode of summary trial under Chapter XXII, that the provisions of Section 342 are not applicable to summons cases. There are some decisions of other High Courts, also on this point but for the purposes of disposal of this reference, it is really not necessary to decide the larger question whether the provisions of Section 342 are applicable to summons cases, in so far as second examination, as contemplated by Section 251-A of the Code is concerned. This section is included in Chapter XXI relating to trial of warrant cases by Magistrate. Section 342 in Chapter XXIV is under the heading "General provisions as to inquiries and trials". It does not say it applies to summons cases or warrant cases. It is silent and for good reasons. It is not in dispute in the instant case that the respondent was explained the substance of the accusation against him as required by Section 242 of the Code and he stated that he had not taken extra passengers. There was, therefore, examination of the respondent once but not the second time after the defence evidence was over. The defence evidence led by him is also on the point that he had not taken extra passengers.