DOONGARSHI DAS Vs. STATE

JUDGEMENT

(1.) This Rule is directed against the summons that has been issued by the learned Magistrate in a case involving an alleged offence under Section 123 of the Motor Vehicles Act and also certain other orders in a proceeding which has remained pending in that Court. Upon a "prosecution report the learned Magistrate took cognizance of an alleged offence under Section 123 of the Motor Vehicles Act against two persons. The summons that was issued by the learned Magistrate in the Form No. 1 Schedule V of the Code of Criminal Procedure read in the material part, "You are hereby required to appear in person by pleader". Both the alternatives, that is appearance in person or, appearance by pleader, were allowed to remain without any one of them being scored out, and that summons was issued under the' signature of the learned Magistrate.

(2.) On the very next date, that is on 9th May, 1960 when the accused were absent, the learned Magistrate directed issue of warrants of arrest against both the accused. It does not appear whether before that date the Summons had been Served on the accused persons or, whether it had been returned unserved. That warrant of arrest did not succeed in apprehension of the accused persons when the learned Magistrate issued fresh warrant of arrest by his order dated 28th September, 1961. When the execution report of that warrant was not received, by his order dated 25th April, 1962 the learned Magistrate stopped the proceeding under Section 219 Cr.P.C. Several months thereafter, on 38th August, 1962 an application was filed before the learned Magistrate on behalf of both, the accused persons purporting to plead guilty under Section 130 of the Motor Vehicles Act. But the learned Magistrate did not accept that plea of guilt for the reason that the accused persons had not appeared on the dates fixed for appearance earlier and by that order made on 28th August, 1962 the learned Magistrate directed, "Let the accused appear in person by pleaded on any date for answering charges in accordance with the principle laid down in summons procedure cases namely, examination under Section 242 Cr. P. C." By a later order also passed on the same date the learned Magistrate directed warrants of arrest to be reissued against both the accused persons and fixed 15.10.62 for return after execution. On 13.9.62 the accused No. 2 Doongarshi Das alias Doongarshi Das Modi surrendered before the learned Magistrate by a petition. He was released on bail and process against him was directed to be recalled. At that stage of the proceeding the accused No. 2 Doongarshi Das alias Doongarshi Das Modi moved this Court in revision and the present Rule issued.

(3.) The main contention raised on behalf of the petitioner in this case is that the case being one for an alleged offence under Section 123 of the Motor Vehicles Act, 1939, Section 130 of that Act will apply to the case because, the offence alleged is not one within Part A of Schedule 5 of that Act. Therefore, it is contended that it was incumbent) upon the learned Magistrate to issue summons as prescribed by Section 130 of the Motor Vehicles Act and not in the form No. 1 of Schedule V of the Code of Criminal Procedure. That not having been, done, the whole proceeding has suffered illegality and that to the grave prejudice to the accused persons because, the purpose of Section 130 of the Motor Vehicles Act is to lighten the hazard of the, accused persons who may be summoned for alleged offences to which that section will apply.