A. Selvaraj vs State

Natarajan, J.—The accused in Summary Trial Case No. 2127 of 1981 on the file of the Judicial Second Claw Magistrate, Kallakurichi has filed this petition u/s 482 , Code of Code of Criminal Procedure to seek quashing of the proceeding in the said case.

The Petitioner is employed as a conductor in Thiruvalluvar Transport Corporation, On 31st August. 1981 the Petitioner went is conductor in a bus plying on Route No. 582, viz., Salem to Madras via Kallakurichi and Thirukkoilur. When the bus reached Kallakuriohi, there were 44 passengers and one child travel ling in the bus as against the total passenger capacity of 46. Thus only one seat was available for passengers boarding the bus at Kallakurichi. According to the Petitioner, the Time-Keeper at Kallakurichi had already issued tokens for three passengers who were bound for Madras, The Time-Keeper told the Petitioner that there was one more passenger, viz., an officer who also wanted to proceed by the same bus from Kallakurichi to Thirukkoilur which was the next stop after Kallakurichi. The Petitioner would say that he could not provide seats for all the four passengers, but the Time-Keeper insisted upon the Petitioner taking the officer passenger also. When the Petitioner went to the bus, the three passengers who had been issued tokens bad already boarded the bus. The officer passenger boarded the bus last and the Petitioner told him that he was unable to provide seating accommodation for him. Only after the bus reached Thirukkoilur, the officer passenger revealed his identity as the Judicial Second Class Magistrate of Thirukkoilur. When the bus entered Thirukkoilur, the officer passenger asked him to stop the bus at an unscheduled stopping place, but he declined to do so. When the bus reached the scheduled stopping place, the passenger informed the Petitioner that he was the local Judicial Second Class Magistrate and he started abusing the Petitioner and demanded the production of the trip-sheet and the registration certificate of the bus. The Petitioner told him that since it is a bus run by the public sector corporation, the registration certificate would be retained at the corporation's office and only traffic returns, and not trip-sheets, were being maintained. The officer vowed vengeance against the Petitioner and told him that he would be taught a lesson very soon. Then, all on a sudden, on 21st September, 1981 the Petitioner received a summons from the Judicial Second Class Magistrate, Thirukkoilur directing him to appear before the said court on 29th September, 1981 to answer charges u/s 49-(a),49 TT , 49 XX (iii), 49-YY (i) and 276 (iii) read with Section 112 of the Motor Vehicles Act and u/s 113 of of the said Act. Accordingly, the Petitioner went to the Court at Thirukkoilur on 29th August, 1981 and waited from the morning. The case was not called, but unexpectedly, at about lunch time, the Petitioner was arrested in execution of a non-bailable warrant issued by the Magistrate and was remanded to the Sub Jail at Thirukkoilur. A bail application was filed, but it was not pursued by the Petitioner's lawyer and hence it was dismissed. The Petitioner would say that the Magistrate had prevailed upon the concerned Advocate as well as other Advocates not to appear for the Petitioner and hence the bail application was not pursued. Hearing of the Petitioner's arrest, the Transport workers attached to the Salem Depot of the Corporation went on strike and thereupon the District authorities intervened in the matter. The Petitioner was enlarged on bail on 1st October, 1981. The Petitioner was asked to appear in, court on 14th October, 1981. But, on that day, the Magistrate was on leave and hence the Petitioner was bound over to appear on 21st October, 1981. In the meanwhile, the case against the Petitioner was transferred to the Court of the Judicial Second Class Magistrate, Kallakurichi and the Petitioner received summons from that Court to appear on 29th October, 1981. In view of this, the Petitioner did not attend the court at Thirukkoilur on 21st October, 1981. But, again the Magistrate at Thirukkoilur issued a warrant of arrest against him. Subsequently the Petitioner took steps to have the warrant of arrest recalled. It is in that state of affairs the Petitioner has come forward with this petition to seek quashing of the proceedings against him.

According to the Petitioner, the complaint is vitiated on account of the following grounds:

(1) The complaint has been made on account of mala fides because the Petitioner failed to provide a seat for the Magistrate in the bus.

(2) The Magistrate was himself an accomplice to the offence of overloading of the bus and hence be is not competent to file the complaint.

(3) The Magistrate cannot take cognizance of the case on his own complaint as it is in violation of Section 479, Code of Criminal Code.

(4) As the complainant had travelled in the bus only as a passenger, he cannot take the role of an authority and purport to take cognizance of offences committed by the Petitioner under the Motor Vehicles Act.

(5) The offences complained of, even if true, are all petty offences and therefore, the Magistrate should have issued summons u/s 130 of the Motor Vehicles Act and given opportunity to the Petitioner to plead guilty without appearing in person and remit the fine amounts determined for each of the offences complained of.

(6) The offences are trivial in nature and do not therefore warrant a prosecution.

Sathar Sayeed, J., who admitted the petition, had called for an explanation from the concerned Magistrate in order to facilitate proper disposal of the case. The Magistrate had given a report wherein he had stated as follows:

At about 11:30 P.M., the bus in question reached Kallakurichi bus-stand. As soon as the Petitioner got down from the bus, he told him that he was going upto Thirukkoilur and that the Petitioner may issue him a ticket. A police constable, by name Thiru S. Sundaramoorthy (P.C.2028), attached to Kallakurichi police Station, was also nearby and he told the Petitioner that the passenger was the Judicial Magistrate of Thirukkoilur. The Petitioner issued him a ticket. Two other persons came and asked the Petitioner whether tickets were available for going to Madras and the Petitioner asked them to get into the bus. The Magistrate also boarded the bus and when the bus began moving, the Petitioner issued two tickets to the passengers bound for Madras and provided seats for them, but told the Magistrate that he should travel as a standing passenger upto Thirukkoilur. The Magistrate protested stating that he had been issued the ticket first, but the Petitioner refined to provide a seat to him. The Magistrate then questioned the Petitioner about the issue of tickets in excess of the seating capacity in the bus, but the Petitioner misbehaved and made indecent and unpleasant comments. When the bus reached the bus-stand at Thirukkoilur, the Magistrate asked the Petitioner to produce the trip-sheet and the details regarding the total number of tickets issued. Once again, the Petitioner made sarcastic remarks about the Magistrate. The Petitioner was not also wearing the conductor's badge or the name plate. The Magistrate then left the place saying that the Petitioner will have to appear in court for the violations committed by him. As the Petitioner had committed contraventions of the Motor Vehicles Rules at Thirukkoilur bus-stand within the jurisdiction of the Magistrate, the latter bad taken cognizance of the offences and bad a case registered suo motu under Rr. Section 49(A), 49-TT, 49-XX (iii), 49-YY and 276 read with Sections 112 and 113 of the Motor Vehicles Apt. The case was posted on 29th September 1981, and summons was served on the Petitioner will in advance through proper channel, but when the case was called at 11 A.M. on 29th September, 1981, the Petitioner was absent, Hence the Magistrate issued a non-bailable warrant of arrest against, the Petitioner. At about 2:30 P.M. during the, lunch hour, the Petitioner appeared before the Magistrate along with another conductor by name, Thru Subramaniam and both of them insisted upon the Magistrate withdrawing the case against the Petitioner and also threatened the Magistrate with dire consequences if he refused to comply with their demand. The Magistrate declined to withdraw the case and told the Petitioner that he bad issued a warrant of arrest against him and that he may file a petition for recalling the warrant of arrest. The Petitioner refused to heed that advice and hence the Magistrate had no other go but to remand the Petitioner to judicial custody till the next day. On 29th September, 1981 at about 10:30 P.M., the Branch Manager of Thiruvalluvar Transport Corporation, Salem, along with some others, met the Magistrate at his residence and demanded the immediate release of the Petitioner and further demanded the Magistrate to withdraw the case itself. On 30th September, 1981 the copies wefts furnished to the Petitioner and he was questioned. He denied the offences. On 1st October, 1981, an Advocate from the local Association, by name Thiru Thangam, filed a bail application and the same was allowed and the Petitioner was enlarged on bail immediately. The Magistrate has denied the various averments made against him, viz., that he had vowed vengeance against the Petitioner, that actuated by malice be had filed the complaint, that he had prevailed upon the local lawyers not to appear for the Petitioner, etc. He has then stated that he bad submitted a report to the Chief Judicial Magistrate, South Arcot, at Cuddalore, about the case and on his request, the learned Chief Judicial Magistrate has transferred the case to the file of the Judicial Second Class Magistrate, Kallakurchi.

The Magistrate has also refuted the averments of the Petitioner regarding the maintainability of the case and has pleaded that the complaint filed by him is perfectly maintainable in law. He has stated that even according to the Petitioner, there was overloading in the bus and the number of passengers carried were 48 full passengers and one child, and not 47 passengers and one child as stated by the Petitioner. He has stated that he was not an accomplice in the commission of any of the offences complained of.

As regards the non-issue of summons prescribing the fine amounts to be paid by the Petitioner, the Magistrate has stated that the main offence falls u/s 49-YY of the Motor Vehicles Rules read with Section 112 of the Motor Vehicles Act, and with respect to such an offence, the procedure prescribed u/s 130 of the Motor Vehicles Act cannot be followed. He has further stated that the case would not fall under the Indian Penal Code and he was fully justified in taking cognizance of the offences and filing a complaint.

Though the Petitioner seeks quashing of the proceedings against him on various grounds, it is seen that some of them touch upon the merits of the case and as such, a finding cannot be rendered on those matters without the trial taking place and evidence being recorded. In that category will fall the contention of the Petitioner that he was not at all at fault on the night in question, that he did not know that the complainant was the Magistrate of Thirukkoilur, that he had not known the status of the complainant, and has not wantonly refused to give him a seat, that he had not deliberately allowed the bus to be overloaded, that he was wearing the badge and that he was in possession of the records such as the registration certificate, trip-sheet, etc., but nevertheless, he deliberately refused to produce those records for inspection. The Magistrate who has preferred the complaint, has a different version to give, and according to him, the Petitioner knew full well that he was a Magistrate, but still refused to provide him a seat in spite of issuing the first ticket to him and that the Petitioner also misbehaved and refused to produce for inspection the records which he was in duty bound to produce when called upon by an authority. As already stated, the truth of the matter can be determined only after the evidence is recorded in the case and the differing versions are subject to cross-examination and scrutiny. What therefore really arises for consideration in the petition is whether, on legal grounds, the complaint is not maintainable.

The first contention of the Petitioner is that since the Magistrate himself was a passenger in the bus he was an accomplice to the alleged offence of overloading and as such, he was not competent to file the complaint. This contention cannot be accepted, because, according to the Magistrate, he was the first passenger to get into the bus when it stopped at Kallakurichi. Moreover, the complainant could not have known, when he boarded the bus, how many persons were travelling in the bus and further more, two more persons also, besides himself, would be accommodated in the bus and they would be issued tickets to go over to Madras. Therefore, by no stretch of imagination, can it be said that the Magistrate himself was a willing and a knowing party to the commission of the offence of overloading and as such, he is not entitled to file the complaint.

There remains for consideration the other two legal objections raised by Mr. Vanamamalai. The first is that all the offences complained of are punishable only with sentences of fine and as such, Section 130 of the Motor Vehicles Act would squarely apply to the facts of the case and since the Magistrate has not issued summons in accordance with Section 130 of the Act, the proceedings deserve to be quashed.

Section 130 of the Motor Vehicles Act reads as follows:

Summary Disposal of Casts:

(1) A court having cognizance of an Offence under this Act shall, unless the offence is an offence specified in I art A of the Fifth Schedule, state upon the summons to be served on the accused person that he

(a) may appear by pleader and not in person, or

(b) may, by a specified date prior to the hearing of the charge, plead guilty to the charge by registered fetter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify.

(2) Where the offence death with in accordance with Sub-section (l) is an offence specified in part B of the Fifth Schedule, the accused person shall, if he pleads guilty to the charges, forward his licence to the court with the letter containing his plea in order that the conviction may be endorsed on the licence.

(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of Sub-section (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.

It may be seen from Sub-section (1) that if the offence is not punishable with imprisonment, then it is obligatory for the court issuing the summons to have stated upon it that the accused may appear by pleader and not in person and he may, before the specified date, plead guilty to the charge by means of a registered letter and remit to court the fine amount or amounts specified in the summons. In this case, the Petitioner is alleged to have committed offences under Rule 49-S (a) (Display of conductors badge), 49-TT (Production of the licence on demand), 49-XX (iii) (behaving in a civil and orderly planner to passengers), 49-YY (i) allowing any person to travel in excess of the seating capacity), and 276 (iii) (inspection of trip-sheet by a Police officer, Magistrate, etc.). All these offences are punishable u/s 112 and 113 of the Act. These Sections provide for sentences of fine alone and do not provide for a sentence of imprisonment. Therefore, all the offences complained of would fall within the ambit of Section 130 of the Act, and consequently, there was a statutory duty for the court issuing the summons to have mentioned in the summons that the accused may appear by pleader and not in person and that he may also plead guilty by a registered letter and remit the fine amounts prescribed for the various offences mentioned in the summons. Since that procedure has not been followed, the Petitioner is entitled to seek quashing of the complaint.

The second contention of Mr. Vanamamalai relates to the competence of the Magistrate to have filed a complaint in his own court and taken cognizance of the case and issued summons. In support of his contention, Mr. Vanamamalai referred (sic) following, authorities:

(1) Where an offence u/s 188, I.P.C. is committed by disobedience of an order of a magistrate u/s 145, Crl. P.C. no cognizance can be taken of the case, without a proper complaint by that Magistrate, as enacted by Section 195, Code of Code of Criminal Procedure and in any case, the Sub Magistrate cannot hear and decide the case himself-Vide: In re Veerappa Mooppa AIR 1939 Mad 496.

(2) In view of Section 195(1)(a) cognizance can only be taken on the complaint in writing of a Magistrate and where there is no such complaint, cognizance by that Magistrate u/s 190(i)(c) upon his knowledge or suspicion that an offence has been committed, would not be sufficient in law. If in a sub-division, there is no other Magistrate empowered u/s 190(2) to take cognizance of the complaint, the Sub-Divisional Magistrate can prefer his complaint in writing to the District Magistrate-Vide Mosafir Singh v. Emperor AIR 1935 Pat 356.

(3) When a Magistrate was personally concerned in that the case of the prosecution was that the Magistrate to be bombed, it was not proper for the Magistrate to have dealt with the bell applications-Vide; AIR 1935 230 (Lahore)

(4) The Explanation and Illustration (to Section 479, Crl. P.C.) lend support to the view that there is a distinction between a passive interest arid an active interest and that it is only in the latter case that the disqualification arises or intervenes-Vide Rameshwar Bhartia Vs. The State of Assam,

On behalf of the State, it was contended that the Magistrate is competent under, Section 190(1)(c), Code of Criminal Code, to file complaint when to his own knowledge, an offence has been committed. The further submission made was that by issue of the summons or by issue of a non-bailable warrant, the Magistrate cannot be said to have taken cognizance of the case. Lastly, it was stated that the Magistrate had not taken the case for trial in his own court but had addressed the Chief Judicial Magistrate and had the case transferred to the file of the Judicial Second Class Magistrate, Kallakurichi. Another argument of the learned Public Prosecutor was that what is forbidden u/s 479, Code of Criminal Code, is, a judge of a Magistrate taking up for trial a case in which he is personally interested, and not taking of cognizance of the commission of an offence. In support of this argument, the Public Prosecutor cited Mt. Mako Devi and other v. State of Bihar and Anr. 1977 Cri.L.J. 56, where it has held that when a Magistrate transfers a case for trial to another Magistrate after taking cognizance of the case, it will not be in contravention of Section 556, Code of Code of Criminal Procedure (old) in any manner. On this point the Public Prosecutor also cited Panu Samal and Others Vs. Emperor,

Mr. Vanamamalai, however contended that the Magistrate had taken cognizance of the case by issuing summons in the first instance and then issuing a non-bailable warrant and subsequently refusing to enlarge the Petitioner on bail and remanding him to custody. To buttress his contention he cited Kamlapati Trivedi Vs. State of West Bengal, , where it was held that when a Magistrate deals with bail applications, he must be held to be acting as a court and not in any other capacity. Mr. Vanamamalai then referred to Thippaswamy Vs. State of Karnataka, and Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , and stated that the rights guaranteed under Article 21 of the Constitution have been extended to safeguard the rights of persons facing criminal trial also and, as such, the Magistrate should not have taken cognizance of the case in his own court, but should have preferred a complaint to another court. He also stated that in the light of these rulings, Section 190 (1)(c) Code of Code of Criminal Procedure should read down so as to exclude a Magistrate from taking cognizance in his own court of an offence where he was personally interested in the prosecution of the accused. To reinforce the argument regarding the reading down of Section 190(1)(c), Mr. Vanamamalai cited All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, .

Though interesting questions have been raised by Mr. Vanamamalai, I do not think they call for adjudication in these proceedings, in view of the fact that on another ground of law I have held that the prayer for quashing of proceedings merits acceptance. As already stated, the failure of the Magistrate to have observed the procedure laid down in Section 130 of the Motor Vehicles Act, constitutes a material error in law. Therefore, on that ground, the petition will stand allowed and the proceedings against the Petitioners in S.T.C. No. 2127 of 1981 on the file of the Judicial Second Class Magistrate, Kallakurichi, will stand quashed.