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Criminal Reference No. 92 of 1961, decided on 21st July 1961.

Criminal Procedure Code (V of 1898), Ss. 190 (1) (c) & 191

--- Cognizance of case under S. 124, Motor Vehicles Act (IV of 1939), on Magistrate's "own knowledge"‑Accused pleading guilty at outset, and convicted in terms of S. 243, Criminal Procedure Code (V of 1898)‑Conviction held, not invalid‑Plea of "guilty" not "evidence" within meaning of phrase in S. 191 "before any evidence is taken"‑Evidence Act (I of 1872), Ss. 3 & 58‑Trial not a violation of bar of S. 191‑Accused may waive objection to trial held by Magistrate taking cognizance on "own knowledge" under S. 190 (1) (c)‑Criminal Procedure Code (V of 1898), Ss. 255 & 271 (2).

Abdul Sattar Molla v. The Crown P L D 1953 F C 145; The Empress v. Ashootosh Chackerbutty and others I L R 4 Cal. 482; Queen Empress v. Abdul Razzak Khan and others I L R 21 All. 109; Emperor v. Kishan Narain I L R 50 All. 599 and Alif Din v. State P L D 1958 Pesh. 6 ref.

Abu Hussain Sarkar : In support of the References.

Abdul Hakim : In opposition to the References.

These five references under section 438 of the Code of Criminal Procedure are made by the same Sessions Judge, namely, Mr. G. Mawla, Sessions Judge, Rangpur, recommending that the conviction and sentences passed upon the various accused persons should be set aside. Since the point of law for consideration in all the five references is the same, the five references are being disposed of by this one judgment.

Reference No. 92 of 1961 is in respect of the order of the Sub‑Divisional Magistrate, Rangpur, dated the 26th of October, 1960, convicting Satya Pada Biswas under section 124 of the Motor Vehicles Act and sentencing him to pay a fine of Rs. 150, in default to suffer simple imprisonment for a period of one month.

Reference No. 93 of 1961 is in respect of another order of the Sub‑Divisional Magistrate, Rangpur, dated the 26th of October, 1960 convicting Satya Pada Biswas under section 124 of the Motor Vehicles Act and sentencing him to pay a fine of Rs. 100 in default to suffer simple imprisonment for a period of one month.

Reference No. 94 of 1961 Is in respect of the order of the Sub‑Divisional Magistrate, Rangpur, dated the 26th of October 1960, convicting Zahiruddin under section 124 of the Motor Vehicles Act and sentencing him to pay a fine of Rs. 200, in default, to suffer simple imprisonment for one month.

Reference No. 97 of 1961 is in respect of the order of the Sub‑Divisional Magistrate, Rangpur, dated the 26th of October 1960, convicting Mahtabuddin under section 124 of the Motor Vehicles Act and sentencing him to pay a fine of Rs. 100, in default, to suffer simple imprisonment for one month.

Reference No. 103 of 1961 is in respect of another order of the Sub‑Divisional Magistrate, Rangpur, dated the 26th of October 1960, convicting Zahiruddin under section 124 of the Motor Vehicles Act and sentencing him to pay a fine of Rs. 200 in default to suffer simple imprisonment for one month.

The facts out of which the present references arise with neces sary variations in names of the accused persons and other parti culars are as follows:

Mr. M. A. Aziz, Sub‑Divisional Magistrate, Rangpur upon his own knowledge took cognizance of the offence under section 124 of the Motor Vehicles Act against the accused persons. The charges against them are that they have carried passengers in public transport vehicles in excess of their capacity and have thus contravened the provisions of the Motor Vehicles Act. The accused persons were summoned and the learned Sub‑Divisional Magistrate having exercised summary powers under the Code of Criminal Procedure examined the accused persons under section 242 of the Code of Criminal Procedure and the accused persons having pleaded guilty to their respective charges levelled against them he convicted and sentenced them as stated above.

The point for consideration in all these references is whether the conviction is legal if in a summons case tried summarily by the Magistrate, who had taken cognizance of the offence upon his own knowledge under section 190, subsection (1), clause (c), of the Code of Criminal Procedure, he convicted the accused person upon his own plea without informing him that he was entitled to have his case tried by another Court as is provided for under section 191 of the Code of Criminal Procedure.

A consideration of this question entails interpretation of section 191 of the Code of Criminal Procedure which runs as follows:

"When a Magistrate takes cognizance of an offence under subsection (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court ;, of Session or transferred to another Magistrate."

(The italicised are mine.)

It is patent that the section does not place a complete embargo upon the jurisdiction of the particular Magistrate to try the offence. It will be of interest to compare the language of this section with that of section 536 of the Code of Criminal Procedure which almost totally prohibits exercise of any jurisdic tion by the Magistrate or Judge concerned. Section 556 of the Code runs as follows: ‑

"No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he Is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself."

Section 191 of the Code of Criminal Procedure clearly pres cribes the maximum limit lip to which the Magistrate can proceed and no further without infringing the principle upon which the section itself is based. This limit is "before any evidence is taken". The principle underlying the section is that no man should be a judge in his own case. As Cornelius, J. of the Federal Court (now Supreme Court) observed in the case of Abdus Sattar Molla v. The Crown (P L D 1953 F C 145), the Magistrate having formed for the first time, the opinion about the guilt of the accused, he (the Magistrate) is rendered unsuitable for the purpose of trying the case because there is an obvious danger of prejudice to the accused person from this initial circumstance. The option given to the accused under section 191, Cr. P. C. is partly out of regard for the susceptibility of the accused and partly to inspire confidence in the administration of justice.

The accused, however, may still have confidence In the par ticular Magistrate and can waive his objection to be tried by him. B In such a case the Magistrate can legally try the accused without any injury to the basic principle upon which section 191 of the Code of Criminal Procedure has been founded.

Bearing in mind the principle underlying section 191 of the Code and the maximum limit up to which a Magistrate taking cognizance of an offence under section 191, subsection (1), clause (c), of the Code of Criminal Procedure may proceed with the case, let us mow examine the various provisions of the Criminal Procedure Code governing the trial of a summons case, namely, sections 241 to 249. We are mainly concerned with sections 242, 20, 244 and 245 of the said Code, which runs thus: ‑

"242. When the accused appears or is brought before the Magistrate, the particulars of the offence 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."

"243. If the accused admits that he 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 he should not be convicted, the Magistrate may convict him accordingly."

"244 (1). If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced In support of the prosecution, and also to hear the accused and take all such evidence as he produces in his, defence

Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) . . . . . . . . . .

(3) . . . . . . . . . .

"245 (1). If the Magistrate upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, find the accused not guilty, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 349 or section 562, he shall, if he finds the accused guilty, pass sentence upon him accord ing to law."

It is, therefore, clear from the provisions of section 243 that if the accused admits commission of the offence and does not show sufficient cause against his conviction, the Magistrate has a discretion to convict him. It is worthwhile to mention here that previous to the amendment of the section by section 66 of the Code of Criminal Procedure Amendment Act XVIII of 1923, the Magistrate had no option in such a case and was bound to convict the accused. Under the present law, however, it is only when the Magistrate does not convict the accused under section 243 of the Code of Criminal Procedure or if the accused does not make such admission, that the Magistrate can proceed to hear the complainant (if any) and take all such evidence as may be C produced in support of the prosecution and also to hear the accused and take all such evidence as may be produced by him. The procedure is based upon commonsense, for, if the accused himself admits his guilt there is no necessity, particularly in a simple case like the present one, to enter into the whole gamut of a legal trial and waste public time to seek proof of a fact that has been admitted already. The guilt of the accused having been admitted no fact is in issue and consequently the necessity of leading evidence to prove the guilt of the accused does not arise. I am supported in my view of the matter by the provisions of section 58 of the Evidence Act, which states as follows:

"No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion require the facts admitted to be proved otherwise than by such admissions."

The records show that the replies that the accused persons gave in answer to the particulars of the offence stated to them under section 242 of the Code of Criminal Procedure either bore their signatures or their thumb‑impressions. Considering this fact along with the orders of the Magistrate concerned I have no doubt, whatsoever, that the accused persons, in fact, made the admissions and subscribed to them.

Mr. Abu Hussain Sarkar, learned Advocate, who appears in support of all the references, has contended that the accused's plea of guilt amounts to confession, which is evidence. That being so, the Magistrate should have, before recording the plea, apprised the accused of his right to ask for trial by another Magistrate, I am unable to accept this contention.

Upon the plain meaning of the word "evidence" as given in section' 3 of the Evidence Act, the plea of the accused whether in amounts to confession or not is not evidence. Section 3 of the Evidence Act runs as follows :‑

"Evidence" means and includes‑

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry

such statements are called oral evidence ;

(2) all documents produced for the inspection of the Court such documents are called documentary evidence."

In support of his contention that confession is evidence, Mr. Sarkar has relied on a decision of the Full Bench of the Calcutta High Court in the case of The Empress v. Ashootosh Chuckerbutty and others (I L R 4 Cal. 482).

Among the three questions referred to the Full Bench for decision the first one runs as follows: ‑

"(1) Whether a confession made by one person, who is being jointly tried with others for the same offence, and affect ing himself and some other such person (and which is proved) is to be treated as "evidence" against such other person under section 30 of Act 1 of 1872; or whether the words "the Court may take Into consideration such confession, etc." to the end of the section, mean that such confession is to be treated, not as "evidence," but in some other manner; and if so, in what manner should such confession be treated "

It was held that such confession was "evidence" as the confession could not be taken into consideration in any other way than as "evidence" (English Notion of Evidence was brought into play to arrive at this conclusion)

It is neither necessary nor always profitable to turn to the principles of English Law of Evidence to understand the codified provisions of the Pakistan Law of Evidence.

With due respect to the Judges of the Full Bench in the case of I L R 4 Cal. 482. I am unable to agree with their strained interpretation of confession' as 'evidence' in order to enable the Court to consider the confession' against the co‑accused. In my opinion it was entirely unnecessary to turn to the English Law of Evidence to do so. A careful examination of our Evidence Act makes it clear that a fact in issue or a relevant fact may be proved by matters, which may not be, strictly speaking, evidence as defined in section 3 of the Evidence Act. This is clear from the definition of the word "proved" as given in the said section, which is as follows: ‑

"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or con siders its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

These matters', however, should be admissible under some provisions of the Act itself. Confession of a co‑accused has been expressly made so admissible under section 30 of the Evidence Act, which runs as follows :‑

"When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

It is of interest to note that in consonance with the scheme of the Evidence Act the Legislature has been careful to say in section 30 of the Act "the Curt may take into consideration such confession" for similar is the language used in the definition of the word "proved" under the said Act. It is useful to repeat here a part of the said definition which says "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist; etc."

Reverting to the provisions of the Code of Criminal Pro cedure in regard to the procedure in a summons case, it seems to me that the principle underlying section 243 of the Code of Criminal Procedure is in consonance with that laid down 9n section 58 of the Evidence Act. The corresponding provisions of the Code of Criminal Procedure relating to trial of warrant cases and trial of cases before the Courts of Session are contained in sections 255 and 271 (2) of the Code. A careful consideration of the provisions of the Code of Criminal Pro cedure shows that, at any rate, admission of guilt by the accused at the commencement of the trial has not been treated as evidence.

It is, however, another matter if the admission of the guilt by the accused 9s itself a fact in dispute. In such case the admission has to be proved by leading evidence and proving it in the manner contemplated by the Evidence Act.

Now, It has been held in the case of Abdus Sattar Molla v. The Crown that failure to comply with the provisions of section 191 of the Code of Criminal Procedure vitiates the trial. The ques tion, however, is whether there has been such a failure in the present case.

In that case P L D 19‑5 F C 145 the facts were quite different. In course of the trial of the accused persons the Magistrate upon the evidence of some of the witnesses took cognizance of the case against X' and then put him on trial along with the rest of the accused and finally convicted him on evidence. Undoubtedly, this was a clear disregard of the provisions of section 191 of the Code of Criminal Procedure. It is, therefore, clear that the decision in that case has no application to the facts of the present case.

In view of the fact that the point of law involved in the present references is one of first impression and has not been the subject of any known decided case. I asked the learned Deputy Legal Remembrancer to appear and argue the point before me. None of the learned Advocates appearing before me was able to put before me any case whether of Pakistan or elsewhere which was directly applicable to the facts of the present case.

1n the case of Queen Empress v. Abdul Razzak Khan and another (I L R 21 All. 109) it was held that the Magistrate, who had taken cognizance of a case under section 190, subsection (1), clause (c), of the Code of Criminal Procedure, did not disqualify such Magistrate from holding a preliminary inquiry and com mitting the case to the Court of Session. This is, of course, a decision of a Single Bench of the Allahabad High Court and it proceeds on a consideration of the language of section 191 of the Code of Criminal Procedure Itself. Under that section if the accused objects' to being tried by such Magistrate, the case shall, Instead of being tried by such Magistrate, be committed to the Court of Sessions or transferred to another Magistrate." The reason given by the learned Judge was that as commitment could not be made without holding a pre liminary enquiry, the section distinctly empowers the Magis trate to hold a preliminary inquiry even in cases triable by himself.

In the case of Emperor v. Kishan Narain (I L R 50 All. 599), a Division Bench of the Allahabad High Court presided over by Justice Sir Cecil Walsh, made the following observations

"Now, in an ordinary criminal case, to which possibly a charge of murder is the only exception it is open to an accused person to plead guilty, and it is open to a Court to accept and to act upon that plea. It would be contrary to common-sense and to tie universal practice if a Court were not to act upon that plea, and nobody contends that a Court is compelled after a plea of guilty, which it is willing to accept, to waste public time by Insisting on a quantity of evidence being called, as though a charge had to be proved and a defence had to be heard. We can find nothing in the Statute, independently of any authorities which have been decided by way of interpretation of it, which prevents a Court acting in that manner in a summons case."

The matter before the said Division Bench of the Allahabad High Court arose out of a case under section 107 of the Code of Criminal Procedure wherein the person against whom a notice had been issued consented to give security. It was held that there was no reason why the Magistrate concerned should not proceed to pass orders against him without further inquiry, provided that the Magistrate was satisfied that such person fully understood the meaning of the notice and that he was at liberty to show cause against it if he wished to do so.

The observations of the Division Bench, which I have quoted above, fully apply to the case before me.

Far the foregoing reasons I am of opinion that the orders of the learned Sub‑Divisional Magistrate are legal and require no interference.

In three of the references, namely, Reference Nos. 92/61, 94 of 1961 and 103 of 1961, the learned Sessions Judge making the references has also taken exception to the sentences passed upon the accused persons on the ground that the Magistrate has passed enhanced sentences for subsequent offences without complying with the provisions of section 511 of the Code of Criminal Procedure, which run as follows: ‑

"In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being In force‑

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was had to be a copy of the sentence or order, or,

(b) in case of a conviction, either by a certificate signed by the officer in charge of the Jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered ;

together with, in each of such cases, evidence as to the identity of the accused persons with the person so convicted or acquitted."

It will, therefore, be noticed that the section itself states that the previous conviction or acquittal may be proved "in addition to any other mode provided by any other law for the time being in force" one such mode of proof as I have already, discussed above is by admission of the accused.

A reference to the records of these three cases clearly shows that the accused also admitted that they were fined several times before.

Section 124 of the Motor Vehicles Act, 1939 as modified up to the 30th November 1955, is as follows :‑

"Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 72 or of the conditions of any permit Issued there under, or in contravention of any prohibition or restriction imposed under section 74 shall be punishable for a first offence with fine which may extend to ore hundred rupees, and for a second or subsequent offence with fine which may extend to five hundred rupees "

It will be noticed that this section itself provides for act enhanced sentence of fine for a second or a subsequent offence.

A reference in this connection has been made to the case of Alif Din v. The Pakistan Stare (P L D 1958 Pesh. 6), which was a case of enhanced punishment under section 75 of the Pakistan Penal Code. The three cases before they are different because section 75 of the Pakistan Petal Code has nothing to do with them. As it will be seen from section 124 of the Motor Vehicles Act, 19395 quoted above, the section itself provides for an enhanced fine for second or subsequent offence Further it seems to me that in that case nobody drew the attention of the learned Judge, who constituted the Single Bench, to that part of section 511 of the Code of Criminal Procedure, which says "a previous conviction or acquittal may be proved, in addition to any other mode provided by any ]a‑.,q for the time being in force."

I do not think, therefore, that any exception can be taken to the sentences of enhanced fines passed upon the accused persons under the provisions of section 124 of the Motor Vehicles Act.

In the view of the matter that I have taken, I do not think that the orders of conviction and sentences passed by the learned Sub‑Divisional Magistrate upon the various accused person in all the five references mentioned above, call for inter ference. Accordingly, all the five references mentioned above are rejected.

Mr. Abu Hossain Sarkar, who appears in support of the references, has asked for leave to appeal to the Supreme Court. Since the point of law, which I have decided in these references, is of first importance. I feel that it should be considered by a superior Court. I, therefore, certify that this is a fit case for appeal to the Supreme Court.

S. B /A. H.

References rejected.

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