Patna High Court
P. Mukherji vs The State on 4 October, 1955
Equivalent citations: 1957CRILJ86
ORDER Kanhaiya Singh, J.
1. There is a reference under Section 438, Criminal P. C., by the Sessions Judge of Patna for quashing the conviction of Mr. P. Mukherji on the ground of illegality.
2. This reference cannot but be accepted. It provides a flagrant example of magisterial vagary, where all canons of justice were totally disregarded. The case is simple but the principles involved are of the highest importance to the people of this State. Mr. P. Mukherji owns the car bearing Registration No. BRA 55 and holds a driving licence whose number is 585/41. There is no dispute about that. The case of the prosecution is that at 8 P. M. on 29. 6-1955, he was driving his car near the Mithapur Railway Crossing and when the police officer on duty challenged him, he did not produce the necessary documents relating to his car, driving license, tax token etc. The police officer submitted then and there to the Sub-divisional Magistrate in charge traffic checking a report alleging commission of an offence under Section 112/12, Motor Vehicles Act, and the appellant was also produced before him. The hearing was short and quick and the appellant was adjudged guilty and sentenced to pay a fine of Rs. 25. The Magistrate recorded the following order:
Took cognizance under Section 3/112, Motor Vehicles Act, against Sri P. Mukherji S/o R. S. Phanindra Nath Mukherji. He was found driving the car No. Sic BR 55 on 29-6-1955 without the card and a licence. He pleads guilty and is fined Rs. 25/-, I. D. to S. I. for two weeks.
The appellant in vain bewailed and pleaded before the Magistrate. His case is that he complained to the Magistrate that his detention was wholly illegal when the Police had been told the car number and license number. Me further wanted only ten minutes' time to produce the license from his residence on Sir Ali Road, but he was not allowed to go. The Magistrate paid no heed and pronounced a judgment that he was fined rupees twenty-live. The appellant had no money and begged for ten minutes' time to fetch the money from home, but his entreaties failed to move the Magistrate and the appellant was obliged to borrow from the Patna Kirana Stores to obtain his release.
3. The order of the Magistrate is vitiated by (i) non-observance of the prescribed procedure for trial of such cases and (ii) the absence of legal basis for conviction.
4. It was a summons case and the procedure for trial of summons cases is contained in Chap, XX, Criminal P. C. As will appear from Section 241, compliance with the procedure laid down in the said Chapter is imperative. The first thing a Magistrate is to do on the production before him of an accused is to explain to him the particulars of the offence. Section 242 lays down that when the accused appears or is brought before the Magistrate, the particulars of : the office of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge. This section consists of two parts. Under the first part the substance of the charge is to be explained to the accused. After this has been done, the second part comes into operation, namely, the accused should be asked if he pleaded guilty to the charge or not. There is no compliance with Section 242 unless, after the offence is explained to him, he is also specifically asked to show cause why he should not be convicted. A failure to comply with either will render the trial illegal if it has occasioned prejudice to the accused. In the instant case there was wholesale disregard of the provisions of this section. The order-sheet, quoted above, does not show that the offence was stated to the appellant, or that he was asked to show cause against his conviction. The learned Sessions Judge asked for a report from the Magistrate on this point and the Magistrate conceded that the provisions of Section 242 were not followed. The question is what is the effect of non-compliance with the provisions of Section 242, Criminal P. C. As held by a Division Bench of this Court in the case of Rajeshwar Prasad Singh v. The Province of Bihar' 50 Cri L J 670 : AIR 1949 Pat 323 (A), the omission to explain the particulars of an offence to the accused is not fatal and does not vitiate the trial if no prejudice has been caused to the accused and there has been no failure of justice. In the present case, the failure to examine the accused has resulted in manifest injustice. It seems he was not allowed to speak and there was no hearing strictly speaking. In the case quoted above, there was a regular hearing and the accused was properly represented and was also examined under Section 342. Therefore, the failure to observe the provisions of Section 242 did not occasion any prejudice to the accused. The petitioner had no such opportunity at all and in the circumstances the omission to comply with the provisions of Section 242 vitiated the validity of the trial and was not a mere irregularity which was covered under Section 537. On this ground alone, the conviction of the petitioner cannot be upheld.
5. Then there is a more serious error which renders the trial null and void. The order-sheet shows that the petitioner pleaded guilty to the charge and was convicted on the strength of that plea. Magistrate did not record his admission. This omission contravened the mandatory provisions of Section 243 of the Code. This section runs as follows:
If the accused admits that ho has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and, if he shows no sufficient cause why ho should not be convicted, the Magistrate may convict him accordingly.
This section empowers a Magistrate to convict an accused on his own admission it no sufficient cause is shown against the conviction, but the admission which forms the basis of the conviction must be recorded in the words used by the accused, as far as practicable. The plea of 'guilty' mentioned by the Magistrate in the Judgment in the conclusion of the Magistrate deduced from the facts stated by the accused. It is likely that the facts admitted by the accused may not constitute any offence and the appellate Court may take a different view. When the facts stated by the accused do not find place in the ordersheet or the judgment, it will be difficult for the appellate Court to determine whether those facts Supported the conclusion. After all, the right of appeal depends upon whether the accused really pleaded guilty or not. This omission has greatly prejudiced the petitioner. All that he said was that he held the license but it was not in his possession when the police officer checked his car. As I shall show presently, this admission did not amount to any offence. It follows that the failure to observe the mandatory provisions of Section 243 vitiated the trial in this case.
6. Apart from this, assuming all the facts of the prosecution case to be true, the petitioner had not committed any offence. The judgment of the Magistrate, which is short and cryptic, shows that the petitioner was convicted for the infraction of the provisions of Section 3(1) of the Motor Vehicles Act, which is in these terms:
3(1) No person shall drive a motor vehicle in any public place unless he holds an effective licence issued to himself authorising him to drive the vehicle, and no person shall so drive a motor vehicle as a paid employee or shall so drive a public service vehicle unless his licence specifically entitles him so to do.
The prosecution admitted that the petitioner held an effective licence. It is alleged that he had not the licence with him when the car was checked by the police. The alleged offence, therefore, consisted in his non-possession of a valid licence at a particular time. The non-possession of a valid license while driving the car is not an offence under Section 3 of the Act under which the petitioner was convicted. The word 'holds' in Sub-section (1) of Section 3 of the Motor Vehicles Act does not connote actual physical possession. All that the section requires is that the person driving the car must have obtained a license, and not that he should carry it whenever he is on the road with his car. This is made amply clear by Section 86 of the Act, which runs as follows:
86 (1) The driver of a motor vehicle in any public place shall, on demand by any public officer in uniform, produce his licence for examination.
Sub-section (3) of Section 86 is important. It lays down If the license or certificate, as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the the licence or certificates within ten days at any police station in British India which he specifies to the police officer or authority making the demand:
It is stated that Mr. P. Mukherji offered to produce the certificate, which, according to him, was at his residence on Sir Ali Road. Unfortunately, he was not allowed any opportunity to produce the licence. The police officer on duty has displayed utter ignorance of the provisions of the Motor Vehicles Act. If on being questioned by him Mr. P. Mukherji offered to produce the licence from his residence in accordance with the provisions of Section 86 (3), it was imperative for the police officer or for the matter of that the magistrate before whom he was eventually produced to give him an opportunity to produce the licence. If the licence was not produced as required by Sub-section (3) of Section 80, then and then only he would have been prosecuted under Section 3 of the Motor Vehicles Act. Both the Magistrate and the police officer did not behave as they ought to have done in this case and by their act of indiscretion subjected the gentleman driving his own car on the public highway to unnecessary humiliation, apart from harassment. This is a thing which should have been avoided by any gentleman, more so by a person in authority. It would be difficult to drive a car in open streets if the persons driving the car have not the security that they will not he molested by the police or the Magistrate more than what is enjoined by the law. Even the ordinary human courtesy was denied to the petitioner. The very report of the police officer did not disclose any offence and the petitioner should not have been convicted as he was done by the Magistrate under Section 3 of the Motor Vehicles Act. The conviction 'is transparently illegal and cannot be maintained.
7. In these circumstances, the conviction of the petitioner cannot but be set aside. The reference is accordingly accepted. The conviction and sentence are set aside. The fine will be refunded to the petitioner forthwith. It is hoped there will be no recurrence of such incidents in future.