Ghulam Mohd.Dar vs State

K.V. Gopalakrishnan Nair, J.—This is a reference by the Sessions Judge at Srinagar under the following circumstances. The first class

Magistrate at Pulwama in a summary trial under Chapter XII of the Cr.P.C. convicted one Ghulam Mohd. Dar Under Section 42 read with

Section 123 of the Jammu and Kashmir Motor Vehicles Act and sentenced him to pay a line of Rs. 200 and also disqualified him from driving a

motor vehicle for a period of one year. The conviction was based on a plea of guilty. On revision, the Sessions Judge expressed the view that the

conviction was unjustified as no offence had been made out by the prosecution against the accused.

The Magistrate took cognizance of the offence Under Section 190 (1) (b) of the Cr.P. C. upon a report in writing made by the Station House

Officer, Pulwama. The facts stated in that report as constituting the offence were that Ghulam Mohd. Dar, the accused, was driving stage carriage,

J and K 8164, from Shopian to Srinagar with 27 passengers in addition to the driver and the cleaner and also with 30 boxes of apples and three

khirwars of Shali.

The Magistrate stated that the particulars of the complaint were read out to the accused, that he admitted them to be correct and as such he

confessed the guilt. He went in to say that according to the conditions of the permit of the vehicle, the accused could carry only ""the personal

belongings of the passengers and no other goods for carriage like, apple boxes and shali sacks, as in the present case."" He, therefore, concluded

that ""the act of the accused is in violation of the conditions of the road certificate and is punishable Under Sections 42/1231 of the Motor Vehicles

Act.

The learned Sessions Judge in recommending that the conviction may be set aside, relied primarily upon a notification of the Registering

Authority purporting to be Under Section 48 (e) (iv) of the Motor Vehicles Act under which the motor vehicle was allowed to carry goods not

exceeding 14 maunds in weight inclusive of the personal luggage of the passengers. This notification, according to the Sessions Judge, constituted a

condition of the permit and was sufficient to exonerate the accused in the present case.

In supporting the reference, the learned Counsel for the accused frankly conceded that he does not rely on this ground. This was because the

learned AdvocateGeneral appearing for the State strenuously urged that the notification of the Registering Authority was invalid in law and was

ultra vires of the relevant provisions of the Motor Vehicles Act. In view of this circumstance, the reference has to be considered from other

aspects, ignoring the main ground on which the learned Sessions Judge based his recommendation.

Now it is clear that the trial Magistrate based the conviction on the plea of guilty said to be entered by Ghulam Mohd. Dar. But the Magistrate

himself says all that Ghulam Mohd, Dar did was to admit ""die particulars stated in the complaint."" From this admission the Magistrate seems to

have inferred that Ghulam Mohd. Dar pleaded guilty to the charge. In doing so the Magistrate erred in more than one respect First, he failed to

record the plea of the accused in his own words. Section 263 as also Section 264 of the Cr.P.C. requires that the Magistrate ought to enter the

plea of the accused and his examination (if any).

In the present case, this was not done and the result has been avoidable confusion and obscurity. It is difficult to overlook the importance of

recording tile plea of an accused person in his own words wherever that is possible. An inference drawn by the trial Magistrate from the plea of an

accused person is different from the plea itself. To find out whether there was a plea of guilty or not the Court; must have the exact words of, the

accused person and cannot be content with what the Magistrate thought was the effect of those words.

This apart, the Magistrate appears to have been in error in thinking that mere admission of the accused that the facts mentioned in the complaint are

correct is tantamount to a plea of guilty. I have already set out the facts stated in the report of the police Under Section 190 (1) (b) of the Cr. P.C.

Nowhere is it mentioned in that report that a particular condition of the permit granted in respect of the motor vehicle in question was contravened.

How the facts mentioned in the report of the S. H. O. by themselves constituted an offence Under Sections 42/123 of the Motor Vehicles Act is

difficult to understand.

No doubt, the report laconically mentioned that an offence Under Sections 42/123 of M. V. Act had been committed. The mere presence of these

words in the report does not and cannot justify the inference that the accused person, because he admitted the facts mentioned in the report, also

admitted that he was guilty of the offence Under Sections 42/123 of the Motor Vehicles Act. Manchaca than the facts alleged in the police report

against the accused person was necessary to bring home to him an offence Under Sections 42/123.

Merely because some of the relevant facts are admitted it cannot obviously be taken for granted that certain other facts which have to be proved to

establish the offence have also been admitted. Whether the facts admitted constituted the offence charged, is really a question of law as to which

the plea of the accused must be considered to be immaterial. This position has been somewhat forcefully pointed out by a Division Bench of the

Bombay High Court in Morarji Raghunath v. Emperor A.I.R. 1919 Bom. 160. The following passage from that judgment may usefully be

extracted:

First. I will deal with the plea of guilty. I feel perfectly certain in my own mind that the accused never intended by his plea of guilty to admit more

than that the facts alleged against himwere true. Whether on those facts he ought to be held to have committed the offence of cheating is really a

question of law, as to which the plea of the accused must be considered immaterial. Magistrates sometimes make mistakes of this kind. They think

that because an accused person admits the facts therefore the admits that he has committed the offence with which he is charged. This is one of

those cases in which the admission of the facts does not amount to an admission of the offence.

These observations are apposite to the in stant case.

I may also cite the decision In re Gurrappu Marigadu, 2 Weir Cr. 336. In that case the accused was convicted of culpable homicide not

amounting to murder on his own plea of guilty. It appeared that he had admitted throughout that he beat his wife and that later she died. But there

was nothing to show that he admitted that she of died on account of his beating or that he had theintention to cause such bodily injury to her as was

likely to cause her death. In the circumstances, the High Court of Madras held that conviction on the plea of guilty could not be sustained. It was

observed by the High Court: It may well be that he intended to admit Simply the facts (i) that he beat his wife; (ii) that she died after that beating;

but that is not at all the same thing as admitting that he by such beating caused his wife's death or that he had the intention of causing such bodily

injury as was likely ... to cause death.

According to the Magistrate, the permit in respect of the motor vehicle in question did not) allow the carrying of any goods except the personal

belongings of the passengers; but nowhere is it stated that the boxes of apple and the sacks of paddy which the bus in question carried did not

form the personal belongings of the passengers, who were travelling in that bus at the crucial time. Unless MJ is proved that these articles did not

belong to the passengers who were travelling by that bus, it cannot be said that there was a violation of the conditions of the permit.

This important fact was neither alleged nor sought to be proved on the side of the prosecution. The mere circumstance that the accused admitted

the other facts is not sufficient to find him guilty of the offence charged. The permit granted to the motor vehicle in question no doubt stipulated as a

condition of the grant of permit that ""no goods except the personal luggage of the passengers"" should be carried; but in the present case it is not he

own, as I already indicated, that this condition has ""been infringed.

Indeed, the allegations made against the accused do not show which of the several conditions of the permit was contravened, But it is common

ground that only the condition adverted to above) could possibly be contravened in the present case, and to establish the contravention the

necessary facts have not been proved. It is not the case of the prosecution that the conditions of the permit or anything else forbade the carriage of

boxes of apples or sacks of shall if they were really brought on the bus by the passengers who were travelling by it.

In the circumstances it is impossible to hold that the accused pleaded guilty. The inference to that effect made by the trial Court is wholly

erroneous and as this wrong inference is made the I basis of the conviction, it has to be set aside.

The learned AdvocateGeneral appearing for the State urged that a re trial may be ordered; I am not satisfied that this request should be

acceded to in the circumstances of the present case. This is a case where the necessary facts have not even been alleged by the prosecution; in

other words, the allegations made by the prosecution against the accused did not really disclose the offence charged. In such a case it will be

improper to order a retrial so as to enable the prosecution to supply deficiencies in their original case by alleging and proving further facts. (See

Suresh Chandra De v. Emperor A.I.R. 1938 Cal 782 and P. K. Sen v. Emperor A.I.R. 1928 Pat 293).

Directing retrial in the present case will be extremely unfair to the accused person and will also amount to according the State an opportunity to

launch practically a fresh prosecution after curing the material defects of the present prosecution. I am, therefore, of the view that a retrial should

not be ordered in this case.

The result is that the reference is accepted, and the conviction and the sentence imposed on Ghulam Mohd. Dar, accused, are set aside. Fine,

if paid, will be refunded.