GHULAM HASSAN Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge of Kashmir under Section 438, Criminal P. C. recommending that the conviction recorded by the District Magistrate, Anantnag and the sentence of fine of Rs. 50/- passed by him on the applicant in a case tried by him summarily "under Sections 16 and 124, Motor Vehicles Regulation" be quashed on the ground chat the District Magistrate (1) has failed to frame the record according to the mandatory provisions of Sections 263 and 264, Criminal P. C. , (2) has not passed the sentence according to law and (3) has convicted the applicant for the contravention of certain sections of an Act which is no longer in force.

(2.) I have been taken through the report of the learned Sessions Judge and the explanation submitted by the learned District Magistrate by the Acting Advocate General. The learned Acting Advocate General submits that the errors pointed out by the learned Sessions Judge in the order of the learned District Magistrate do actually exist and that the conviction and the sentence of the applicant should be quashed and that the case should be remanded for re-trial. After examining the case with care I agree with the Sessions Judge and the Acting Advocate General that the applicant has not had a fair trial and that the interests of justice require that a fresh trial should be ordered in this case. The register of the summary trials in which certain entries have been made by the District Magistrate in this case does not show that the trial Magistrate has really applied his mind to the case. It is apparent from the register that the trial Magistrate has not made the entries in the appropriate columns and these entries fall far short of statutory requirements. It is also clear that Sections 16 and 124, Motor Vehicles Regulation with which the applicant has been charged in the register and presumably under which he has been convicted by the Magistrate - no conviction is actually recorded - are no longer on the Statute Book. The Motor Vehicles Regulation has been repealed and at present the Motor Vehicles Act of 1998 (Act No. 12 of 1998) is in force. The charges against the applicant are that merely possessing a cleaner's 'chit' he was driving a lorry without holding an effective driving license and that he had seated two persons by his side on the lorry. Driving without license is a contravention of Section 3 and seating more than one person by the side of the driver on the lorry is a contravention of Section 83, Motor Vehicles Act and these are punishable under Section 112 of the Act. The applicant should, therefore, have been charged on two counts under Section 112 read with Sections 3 and 83 of the Act and if; he had pleaded guilty to these two charges, which should have been put to him separately, he could have been convicted under these two counts. But nothing of the kind has been done by the trial Magistrate. He did not care to detect the mistake made by the police in preferring wrong charges against the applicant and he made a number of serious errors himself. Not only did he not ask the applicant to show cause why he should not be convicted under the relevant sections of the Motor Vehicles Act to which reference has been made above but he further did not put the two charges separately to the applicant. Under these circumstances the plea of guilty recorded by the Magistrate loses all its value. It cannot be said with precision that the applicant has pleaded guilty to both the counts or to only one count and if to one count to which of these two counts. The applicant has, therefore, been seriously prejudiced by the failure of the trial Magistrate to apply the correct procedure in this case. Further the record does not show under which sections of the Regulation or the Act the Magistrate has convicted the applicant. As a matter of fact the trial Magistrate has not at all convicted the applicant under any section of any Regulation or Act. All that he states in his order is "fined Rs, 50/- only". This is absolutely irregular especially when the applicant was charged with two offences. Further under Section 112 of the Act maximum sentence for each offence is a fine of Rs. 20/- unless an accused person is a previous convict, in which case he could be fined upto Rs. 100/ -. The trial Magistrate if he wanted to convict the applicant of two offences should have recorded separate convictions with separate sentences. He could not pass a cumulative sentence of fine of Rs. 50/on the applicant in this case. The maximum fine that he could have imposed for two offences was Rs, 40/- only. In view of all these errors of omission and commission it is futile to argue, as the District Magistrate has attempted to do in his explanation, that the applicant has not been prejudiced in his trial. I, therefore, accept the recommendation made by the learned Sessions Judge of Kashmir, quash the conviction and the sentence of the applicant and order him to be re-tried by the Additional District Magistrate of Anantnag. The applicant has been ordered to present himself before the Additional District Magistrate, Anantnag, on 10th 'bhadoon' 2010.

(3.) BEFORE concluding I feel constrained to remark that the trial in this case reveals utter carelessness and lack of judicial grip on the part of the learned District Magistrate of Anantnag. I was also pained to go through his explanation which is exceedingly unsatisfactory. The explanation submitted by an inferior court to the superior court in such cases should be respectful in tone. The explanation in this case not only shows want of respect but smacks of rudeness. The explanation should not have been argumentative and reference in it to the learned Sessions Judge should have been in the third person.