STATE Vs. DULEY SINGH
LAWS(RAJ)-1952-10-18
HIGH COURT OF RAJASTHAN
Decided on October 09,1952

STATE Appellant
VERSUS
DULEY SINGH Respondents


Referred Judgements :-

EMPEROR VS. KUNWAR RANANJAI SINGH OF AMETHI [REFERRED TO]


JUDGEMENT

Wanchoo, C. J. - (1.)THIS is a reference by the District Magistrate of Bikaner and has arisen in the following circumstances:
(2.)DULEY Singh opposite party is a motor driver of bus No. RSBK 1386. On the 12th of May 1951 he was driving his bus on the Bikaner-Nokha road. His bus was stopped and the police asked him to produce the driver's licence, registration certificate, road permit and insurance certificate. It is said that the driver could not do so. Thereafter the number of passengers in the bus was checked and it was found that there were three passengers in excess. Consequently, he was prosecuted under sections 113/120 of the Motor Vehicles Act, 1939. He appeared before the Magistrate on the 14th of November 1951. The Magistrate enquired from him whether he had failed to produce his driver's licence, registration certificate for the bus, road permit as well as the insurance certificate of the bus, and he admitted that he could not do so. He was also asked whether there were three passengers in excess in the bus and he admitted that. Thereupon the Magistrate convicted him under sections 113/120 of the Motor Vehicles Act, 1939 and sentenced him to a fine of Re. 1/ -.
In the reference made by the District Magistrate of Bikaner he has pointed out that the section under which the non-applicant has been convicted is incorrect as he should have been properly convicted under section 112 of the Motor Vehicles Act. He has also recommended that the fine which has been imposed on the non-applicant is much too lenient and should be enhanced particularly as the non-applicant is a previous convict under the Motor Vehicles Act

It has been urged on behalf of the non-applicant that the summons issued to the non-applicant did not give the particulars of the charge and therefore the trial held on the basis of such summons is invalid and the defect cannot be cured under section 537 Cr. P. C. Reliance is placed on the Form (No. 1) for summons to an accused person in Schedule V of the Code of Criminal Procedure. The form prescribes that the Magistrate will state shortly the offence charged. Learned counsel for Duley Singh urges that it is the duty of the Magistrate to mention in the summons not merely the section under which the accused was to be charged but also the particulars of the place where, the time when, and the nature of the offence charged. He relies on Emperor vs. Kunwar Rananjai Singh (1) (A. I. R. 1928 All. 261. ). There is certainly an observation in that case that - "a summons issued by a Magisterial Court which does not contain in the form prescribed by the statute particulars of the place where, the time when, and the nature of the offence) charged, may be disregarded by the person summoned, and proceedings taken thereon, if objected to, must necessarily be invalid. We are of opining, however, that the law does not require that the summons issued to a person should contain the particulars of the place where and the time when the offence was committed because that would appear in the questions put to the accused before the trial begins in a summons case, and in the charge in a warrant case. But it is certainly the duty of the Magistrate to see that the summons contains the correct section of the law under which the accused is to be charged and when the section concerned is a general section providing punishment for a large number of breaches of various rules the rule for the breach of which the accused is to be charged should also be mentioned. In this particular case the summons issued was under a wrong section, namely, 113/120 of the Motor Vehicles Act when it should have been under section 112. The particular rule that was broken was also not mentioned. But this, in our opinion, is a mere irregularity and is curable under section 537 Cr. P. C. provided no prejudice was caused to the accused at the trial. We find in this case that the particular breaches in question were specifically pointed out to the accused when he was questioned by the Magistrate on the 14th of November 1951. He was also informed of the date, the time and the place where the breaches took place. He admitted that he had committed those breaches at that place and time and on that date. Under these circumstances, we are of opinion that the non-applicant has been rightly convicted though the section mentioned in the judgment of the Magistrate is incorrect, as there was no prejudice caused to the accused by that mistake.

It is next urged that there is no proof on the record that the accused is a previous convict under the Motor Vehicles Act. The previous conviction is mentioned in the complaint but there was no evidence produced in support of it and the Magistrate did not even question the accused about the previous conviction. Under these circumstances it cannot be held that the accused is a previous convict under the Motor Vehicles Act.

The next question is about the punishment. We consider the sentence of fine of Re. 1/- is much too lenient in a case of this kind. We think that a sentence of Rs. 20/- fine would meet the ends of justice. We, therefore, enhance the sentence of fine to Rs. 20/ -. We allow 15 days' time to the accused to pay up the fine. .



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