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Writ Petition No. 636 of 1957, decided on 12th December, 1957.
, S. 12‑Jurisdiction of Magistrate extends throughout district to which he is appointed.
S. 352‑ Place'--- Does not necessarily mean "room" or "building"‑Trial at spot, of offence under Motor Vehicles Act (IV of 1939)‑Not illegal.
, Art. 5‑Not contravened if mobile Magistrate follows procedure provided by law.
‑Accused pleading guilty on behalf of absent co‑accused without power‑of‑attorney ‑ Conviction of absent co‑accused on such plea, held, illegal.
S. 130‑Meant to save public from unnecessary inconvenience involved in attending Court --Fixation by Police Sergeant of date for appearance in Court amounts to denial of benefit of S. 130 --‑ Appointing mobile Magistrates for dealing with petty offences‑Advantage doubted.
S. 243‑Prosecu tion evidence to be produced only if accused does not admit com mission of offence.
S. Nasiruddin‑for Petitioners.
H. T. Raymond for Respondents.
‑The facts, giving rise to the present petition, shortly put, are these:
The petitioner No. 1 is the owner of Bus No. K. A. P.‑4884 while the petitioners Nos. 2 and 3 are the driver and conductor respectively of the said bus. On 28th of October, 1957, the petitioners Nos. 2 and 3 were stopped at Lalukhet, Karachi, by Mr. Mirza, the Traffic Sergeant. Mr. Mirza handed over a notice to the petitioners for prosecution under the Motor Vehicles Act and the rules framed thereunder.
Mr. Mirza took the petitioners Nos. 2 and 3 before the Magistrate, respondent No. 3, who was present at Lalukhet bus‑stop. The petitioners were fined by the Magistrate for the offence that they had committed.
Mr. Nasiruddin, the learned Advocate for the petitioners, raised five‑fold contentions before us: (1) that the institution of Mobile Magistrates to convict persons under the Motor Vehicles Act and the rules framed thereunder, is not warranted by law ; (2) that the trial by Mobile Magistrates at the spot under the Motor Vehicles Act, was discriminatory ; (3) that the learned Magistrate did not proceed in accordance with the provision made under Chapter XXII of the Criminal Procedure Code for trial of summons cases ; (4) that the trial of the petitioners was bad‑in‑law inas much as the petitioner No. 1 was not In fact present at the spot, but has been convicted in his absence ; and (5) that the Traffic Sergeant acted illegally 1n fixing a date for the appearance of the accused persons. We would consider these contentions raised by Mr. Nasiruddin separately.
So far as the first contention of the learned Advocate for the petitioner is concerned it is true that there is no provision under the Criminal Procedure Code for appointing Magistrates to try offences under the Motor Vehicles Act at the spot. In this connection there are two relevant questions that require consideration:
(1) Whether the Magistrate had jurisdiction within the local area where the offence in question was committed.
(2) Whether there was any bar under Criminal Procedure Code to try offences at places other than the precincts of the Court.
Mr. Nasiruddin, the learned Advocate for the petitioner, did not contend and rightly too, that the Magistrate had no jurisdic tion within the local area where the offence in question was committed. Under section 12 of the Criminal Procedure Code the District Magistrate can define the local area, within which the Magistrates would exercise their jurisdiction, but subject to A such definition the jurisdiction and powers of Magistrates extend throughout the district in which they may have been appointed. It appears that the various Magistrates, who were trying offences under the Motor Vehicles Act, were acting under the orders of the District Magistrate and therefore it cannot be urged that their jurisdiction did not extend to the local limits, where these offences were committed.
So far as the second question is concerned, the Criminal Procedure Code does not lay down any specific rule or condition as to the place where the Magistrate, would try a particular offence. All that is laid down in section 352 of the Criminal Procedure‑ Code is that:‑
"The place 1n which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access . . . . ."
The word place' used in section 352 is of wide import and cannot necessarily mean a room or a building. We are of the view that the appointment of Magistrates to try offences under the Motor Vehicles Act at the spot is not illegal.
The third contention was that the trial of the petitioners by the Magistrate at the spot where the offence was committed contravened the constitutional provision of Article 5 inasmuch as the petitioners were deprived of the equal protection of law. The contention was that persons tried at the spot for offences under the Motor Vehicles Act, could not get the same facility as was available to those who were tried within the specified Court's precincts. We have perused the counter‑affidavit filed by Syed Muhammad Matahar, Magistrate 1st Class, who tried the peti tioners and convicted them and we are of the view that the petitioners were not denied the equal protection of law. The relevant para of the counter‑affidavit runs as under :‑
"I state that if in this case the petitioners had not pleaded guilty, then they would not have been convicted on their own plea and the case would have been heard and evidence recorded. If the petitioners were not ready with their defence witnesses, a fresh date would have been given for recording the evidence of such defence witnesses. As it happened in this case, the petitioners 2 and 3 who were present pleaded guilty on their own behalf and petitioner No. 3 also pleaded guilty on behalf of the exempted accused (petitioner No. 1)".
In view of what is stated above 1t cannot be said that the petitioners were denied the equal protection of law by the Mobile Magistrate. The appointment of Mobile Magistrate cannot be said to be in contravention of Article 5 of the Constitu tion so long as they follow the procedure provided under the Criminal Procedure Code and the Motor Vehicles Act. The fact disclosed in the counter‑Affidavit clearly negatives the contention of Mr. Nasiruddin that the petitioners could not get the equal protection of law as those who were tried within the Court's precincts.
It was contended in the fourth place, that the learned Magistrate administered the provision of Chapter XXII of the Criminal Procedure Code to the detriment of the petitioners. In support of this contention It was argued that the petitioners could not cross‑examine the prosecution witness. There 1s no force in this contention. It is admitted by Mr. Nasiruddin that the offence committed by the petitioners was triable as summons case and therefore the procedure prescribed under Chapter XX would apply. The question of cross‑examining the prosecution witnesses did not arise under Chapter XX of the Criminal Proce dure Code, as the accused persons admitted to have committed the offence. It is only when the accused does not admit that he has committed the offence that the question of producing evidence on behalf of the prosecution arises. In this case as would appear from the counter‑Affidavit the petitioners had admitted to have committed the offence and the learned Magistrate acted upon this admission.
So far as the fourth contention is concerned we have come to the conclusion that the trial of the petitioner No. 1 was bad‑in -law. It is admitted that the petitioner No. 1 was not present at the spot but his plea of guilt was recorded by the Magistrate in his absence. The petitioner No. 3 Muhammad Ashiq stated before the Magistrate that he was representing the petitioner No. 1, the bus‑owner and pleaded guilty on his behalf. The learned Magistrate should not have accepted this plea of guilty in the absence of any power‑of‑attorney having been produced by petitioner No. 3 on behalf of petitioner No. 1. The conviction and the sentence passed on petitioner No. 1 was under these circumstances illegal.
The last contention of Mr. Nasiruddin was that the Traffic Sergeant had no power to ask the petitioners to appear on a specific date before the Magistrate. The offence was committed on 28th of October 1957, and the Traffic Sergeant asked the petitioners to appear before the Magistrate on the 29th of October 1957, at 9 a.m. Mr. Raymond was unable to show any provision either in the Criminal Procedure Code or in the Motor Vehicles Act under which the Police Sergeant had the power to direct the petitioners to appear on any particular date before the Magis trate. It was further urged that it was only the Magistrate who could fix the date for the appearance of accused persons after taking cognizance of the offence. Moreover, the action of the traffic sergeant requiring the petitioners to appear before the Magistrate on a particular date was in conflict with the provision of section 130 of the Motor Vehicles Act, 1939. Section 130 of the Act runs as under:
"130.‑(1) A Court taking cognizance of an offence under this Act, may, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to be served on the accused persons that he‑
(a) may appear by Pleader and not in person, or
(b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty‑five rupees as the Court may specify.
(2) Where the offence dealt with in accordance with sub section (1) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty to the charge, forward his licence to the Court with the letter containing his plea in order that the conviction may be endorsed on the licence.
(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of subsection (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be dis qualified for holding or obtaining a licence by reason of his having pleaded guilty."
The above provision of the Motor Vehicles Act is a very important provision. It is obviously meant to save the public from unnecessary inconvenience of attending the Court. The offences, alleged to have been committed by the petitioners, are offences which could have been dealt with by the Magistrate under the Motor Vehicles Act. I have no doubt, considering that the petitioners have been only fined, that the Magistrate would have desired to deal with the petitioners under section 130 of the Motor Vehicles Act. The action of the Sergeant in fixing a date for appearance of the petitioners before the Court meant the denial of the benefit given to the public under section 130 of the Motor Vehicles Act.
We might observe that in view of the provision of section 130 of the Motor Vehicles Act as reproduced above, we do not see what advantage the District Magistrate thought to gain by appointing Mobile Magistrates. Mr. Raymond, who appeared for the State, was not able to state any advantage that might be gained by the prosecution in appointing Mobile Magistrates when Magistrates could in the ordinary course expeditiously dispose of these offences under section 130 of the Motor Vehicles Act. It is clear from the counter‑affidavit filed by the State that Mobile Magistrates are appointed only for trying petty offences under Motor Vehicles Act. Under section 130 of the Motor Vehicles Act, Magistrates can very expeditiously and without causing any inconvenience to the public dispose of these petty offences in much less time than at the spot.
The trial of petitioners Nos. 2 and 3 under the circumstances that we have mentioned above, does not appear to have been a fair trial. The petitioners Nos. 2.and 3 were actually taken by the sergeant and produced before the Magistrate. They had no option but to plead guilty in order that they may get off as soon as possible so that they may be able to ply their truck in which number of passengers must have been waiting.
We have for the reasons given above, quashed the order of con viction and sentence passed by the learned Magistrate on 12‑12‑57. We would however observe that this order should not be made a precedent for future. Wherever ordinary remedy by way of revision is available, this Court would be reluctant to interfere under Article 170 of the Constitution. In the present petition as we had heard the learned Advocates at some length we did not think it proper to refer the petitioners to pursue their remedy under the Criminal Procedure Code.
S. B./A. H.
Petition accepted.
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