Dalip Singh vs The State of Himachal Pradesh

D.B. LAL, J.—These are two rules in revision and have been obtained against the decision dated 13-6-1972 of the Sessions Judge, Mahasu in two cases arising under the Motor Vehicles Act whereby Dalip Singh has been convicted and sentenced to pay different amounts of fine and to undergo simple imprisonment in default of payment of fine.

Criminal Revision No. 76 of 1972 relates to a surprise traffic check said to be made by the S.H.O. Theog at 5.15 P.M. on 9-12-1971 and it was stated that Dalip Singh accused was driving the Jeep HIL-3974 rashly and that he was signalled by the police officer, but he did not stop the vehicle. As such he committed the offences u/s 87 read with Section 112 and u/s 116 of the Motor Vehicles Act. The accused was produced in court on 17-12-1971 as a result of a warrant issued against him. He admitted that he had committed the offences, and was sentenced to pay a fine of Rs. 100/-; in default, to undergo simple imprisonment for 20 days for the offence under Sections 87/112, and to pay a fine of Rs. 400/-; in default, to undergo simple imprisonment for one month for the offence u/s 116 of the Motor Vehicles Act.

Criminal Revision No. 77 of 1972 relates to another surprise traffic check made by the S.H.O. Theog on 8-12-1971 at 3.30 P.M. at Matiana and it was stated that Dalip Singh accused was found driving the same Jeep HIL-3974 rashly and it was stopped by the police officer who gave a signal. The accused did not stop the vehicle. It was also noticed that instead of one, two persons were sitting by the side of the driver and that was a separate offence committed by the accused. A warrant was issued for appearance of the accused and his statement was recorded on 17-12-1971. He admitted to have committed the offences and was sentenced to pay a fine of Rs. 350/-under Section 116, to pay a fine of Rs. 100/- under Sections 83/112 and to pay a fine of Rs. 50/- under Sections 87/112; and in default, to undergo simple imprisonment for 20 days and 15 days.

The accused Dalip Singh felt aggrieved of the two decisions and filed appeals before the learned Sessions Judge. However, he did not succeed and the appeals have been dismissed. He has now come up in these two revisions.

At first, I shall take up Criminal Revision No. 76 of 1972. The statement of the accused u/s 242 of the Code of Criminal Procedure indicates that it was not put to the accused that he was required to stop the vehicle by a police officer in uniform. The question that was put indicated that a signal was given by a police officer. How could the accused know that the said gentleman was a police officer unless he was in uniform. When the main ingredient of the offence was not put to the accused, any amount of admission elicited from him will be of no avail. u/s 242 of the Code of Criminal Procedure when the accused appears or is brought before the Magistrate the particulars of the offence are required to be stated to him and he shall be asked if he has any cause to show why he should not be convicted. When the necessary particular of the offence was not put to the accused, how could his affirmative answer lead to the conviction u/s 87 read with Section 112 of the Motor Vehicles Act ? As was held in J. F. Mathias (A.I.R. 1949 Mad 424), in a prosecution for an offence u/s 87(1)(a) it is the duty of the prosecution to adduce evidene to establish that the police officer concerned who had given the accused the signal to stop was in uniform at the time when the alleged offence of disregarding the signal was committed. In that case it was even mentioned in the charge that the police officer was in uniform, but no evidence to that effect was given. In the case before me, there is not even an allegation in the charge or in the question put to the accused that the police officer was in uniform. Therefore, the offence under Sections 87/112 goes off and the accused could not be convicted for that offence.

As regards the offence u/s 116, it was contended, I should say with a greater force, by the learned Counsel that no compliance was made of Section 131 of the Motor Vehicles Act. The facts of the case are that the accused was seen driving the vehicle on 9-12-1971 and a warrant was issued against him after the challan was put up on 12-12-1971. He was produced, perhaps under arrest, on 17-12-1971 and the plea of guilt was recorded. Neither the previous warning as contemplated u/s 131 was given, nor any notice nor summons were issued as required under that Section. Therefore, it is evident no compliance was made of Section 131. The learned Sessions Judge remarked that the compliance under that Section was not possible because the prosecuting authority neither knew the name nor the address of the accused, nor such name and address could with reasonable diligence be ascertained in time. When the accused was produced in court on 17-42-1971 it is obvious the prosecution was launched post-haste. His name and address must have been known to the police officer. Otherwise how could he be produced within so short a time. At any rate, there was no evidence to indicate that the name and address of the accused could not be ascertained then and there. Someone had to come and state that fact. Only than a finding could be given that the name or address of the accused were neither known nor could be ascertained with a reasonable diligence. Therefore, the proviso to Section 131 will be of no avail. It appears to be a case where regard was not made of Section 131 and it was considered sufficient that warrants are issued and the accused is produced in court for a statement. In a similar case, this Court held in State of Himachal Pradesh v. Shri Suresh Chand I.L.R 1973.(H.P.) 809 that non-compliance of Section 131 was a fatal defect and no prosecution could be sustained. As evident, if some one is being prosecuted u/s 116 he has to be warned that he was exceeding his speed and was likely to be prosecuted or if the police officer considers that he has already exceeded the speed and is endangering the public, he has to be given a notice within 14 days from the commission of the offence or he has to be sent summons within 28 days of the commission of the offence. Nothing of this sort is done in the present case. Rather a warrant is issued straightaway asking him to appear on 17-12-1971 and his plea of guilt is recorded, thus the conviction u/s 116 was also inappropriate.

The result is that the Criminal Revision No. 76 of 1972 is allowed and both the conviction and the sentence under Sections 87/112 and 116 are set aside. If the amount of fine has been paid, the same shall be refunded.

In Criminal Revision No. 77 of 1972, however, the necessary ingredient of the police officer being in uniform was put to the accused. As such the conviction and sentence under Sections 87/112 may be sustained. Similarly the accused was told that two persons were sitting in the front seat, and that was sufficient for the offence under Sections 83/112. No exception can be taken to that conviction and sentences as well. However, for the reasons stated above, no compliance was made u/s 131 and so the conviction and sentence u/s 116 is bound to be set aside.

The learned Counsel made a vain attempt to say that particulars of the offences were not stated or were not understood by the accused. The statement of the accused is clear and in my opinion the particulars of the offence of which he was accused were stated to him. Therefore, due compliance was made of Section 242 of the Code of Criminal Procedure. It was then pointed out that a warrant was issued instead of summons for the offence u/s 116. This question need not be gone into when a finding is that no compliance was made of Section 131 and therefore the conviction u/s 116 was illegal.

In the last, it was submitted that the sentence awarded was excessive. The Petitioner has succeeded totally in Criminal Revision No. 76 of 1972 and his conviction is retained only for the offences under Sections 83 and 87 in Criminal Revision No. 77 of 1972. I do not think, the sentence awarded can be considered excessive. Criminal Revision No. 77 of 1972 is, therefore, allowed so far as the offence u/s 116 is concerned, but the same is dismissed for the other two offences.

In the result, Criminal Revision No. 76 of 1972 is allowed, and the conviction and sentence are set aside. The fine if paid is refunded. Criminal Revision No. 77 of 1972 is allowed for the offence u/s 116 and the fine if paid shall be refunded. However, the conviction and sentence of the accused under Sections 83 and 87 read with Section 112 are maintained.

This Judgment is being given in Criminal Revision No. 76 of 1972 Dalip Singh v. State of Himachal Pradesh and a copy of the same shall be kept on the record of the Criminal Revision No. 77 of 1972 Dalip Singh v. The State of Himachal Pradesh.