ORDER
[ENTITY], J.C.
1. This revision, petition by [ENTITY] is directed against the order, dated 13-12-1967, by which Shri [ENTITY], the Sub-divisional Magistrate, Dharrnanagar, convicted and sentenced him to a fine of Rs. 200/-, or, in default, 10 days' simple imprisonment, under [SECTION] of the [ACT], hereinafter called the Act. [ENTITY] before filing the instant revision petition had moved the Sessions Judge, Tripura, praying that the conviction and sentence should be quashed because the trial held by Shri [ENTITY] stood vitiated for reasons which I shall outline presently. How-ever, the Sessions Judge did not accept his contention as justified in law and so rejected his motion.
2. The case of the prosecution against [ENTITY] was that while driving the loaded truck No. TRL 957 on Assam-Agartala road, on 13-12-1967, he happened to carry five passengers and had thereby committed an offence punishable under [SECTION] with [SECTION] of the Act The offence was detected by Shri [ENTITY], the Assistant Sub-Inspector of Police, who was on checking duty on Assam-Agartala road when [ENTITY] happened to drive the truck. Shri [ENTITY] immediately prepared a report and presented the same along with the accused before Shri [ENTITY], who, it is said, was then holding mobile Court on the road side. The accused, when examined under [SECTION] of the [ACT], hereinafter called the Code, it is the contention of the prosecution, pleaded guilty to the charge and so he was convicted and sentenced in the manner mentioned above on that plea of guilty. He paid Rs. 20/- at the moment of his conviction and was then allowed time upto 31-12-1967 for paying the balance amount of the fine. The driving licence of [ENTITY] was taken into possession pending payment of the balance amount.
3. The facts of the occurrence, according to the version of [ENTITY], are that while he was driving the truck he noticed Shri [ENTITY]. along with a police party, standing on the road, and that when the vehicle reached near them a police officer signalled that the vehicle be stopped and that signal was obeyed. A short while after, he (the petitioner) was prosecuted before Shri [ENTITY], convicted, and sentenced at the spot. In support of these averments [ENTITY] had filed an affidavit before the Sessions Judge and he placed reliance on that document during the course of arguments in this Court. It was specifically mentioned in this' affidavit that Shri [ENTITY] along with a police party was seen by [ENTITY] in front of his vehicle, that a police officer out of that police party stopped the vehicle, that just at that moment Shri [ENTITY] was with chat police officer, and that right from the moment of stoppage of the vehicle till the time of his conviction and payment of Rs. 20/- as part payment of the fine imposed on him the Magistrate and the police officials remained at the place side by side.
4. The main point urged in this Court by Shri [ENTITY] for the petitioner was that the trial stands vitiated because of flagrant violation of the provisions of [SECTION] of the Act. Sub-section (1) of that section, which alone requires to be interpreted in the present case, is in the following terms:
A Court taking cognizance of an offence under this Act 'shall', unless the offence is an offence specified in Part-A of the Fifth Schedule, state upon the summons to be served on the accused person 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.
It may be appropriately mentioned that the underlined (here in ' ') word "shall" was substituted for the word "may" by [SECTION] of the [ACT]. The substitution has its obvious signification. It indicates clearly that whereas the provision was previously discretionary or directory, it became mandatory after the amendment.
The Supreme Court held in the case of [PRECEDENT] , that there can be no doubt on the plain terms of [SECTION] that the provision is mandatory. At another place in the same report, the Supreme Court observed that the Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by [SECTION]. In face of these authoritative pronouncements, which are binding on all Courts within the Territory of India in view of [SECTION] of the [ACT], there is no scope for the contention that a Court taking cognizance of an offence of the nature mentioned in [SECTION] of the Act has any option in the matter of issuing summons to the accused or summons of the nature stated therein. [SECTION] of the Code prescribes, inter alia, that in the absence of any specific provision ' to the contrary, nothing contained in the Code shall affect any special or local law in force, or any special jurisdiction or power conferred, or any special form of procedure, prescribed, by any other law for the time being in force. It cannot be gainsaid that issuing of process to the accused forms an essential part of the procedure for enquiry into or trial of the offence charged and that the [ACT] is a special law and it is still in force, Therefore, any infraction of the provisions of [SECTION] of the Act must invalidate the trial. It was held by the Privy Council in the case of [PRECEDENT], that where a power is. given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. That view of the Privy Council was reaffirmed by the Supreme Court in the case of [PRECEDENT] . Therefore, there is no escape from the conclusion that the Sub-divisional Magistrate had no option but to try the petitioner after issuing a summons to him in terms of [SECTION] of the Act, and that having not been Hone the trial held by him stands vitiated.
5. Non-compliance with the provisions of [SECTION] seriously prejudices the accused in more than one way. Firstly, if the Magistrate issues the summons of the nature mentioned in Clause (a) of that provision the accused can enter appearance through a pleader and thereby avoid personal appearance in the Court, which is by no means a small concession in the present day world of busy life and constant work to earn one's bread and butter. If the summons is issued under Clause (b) then the accused is giver the facility of not appearing in Court personally or through pleader, if he decides to plead guilty, and in that event he is also given the concession of sentence of a fine not exceeding Rs. 25/-, though the offence committed by him may be punishable by a more bigger fine or even By a term of imprisonment. Further, if the offence committed is one of those specified in [SECTION] of the Act, and the accused pleads-guilty to the charge and forwards the licence to the Court in terms of [SECTION], no further proceedings in respect of the offence committed shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his haying pleaded guilty. All these concessions, it is evident, are of far-reaching consequences to the public owning and driving the vehicles.
Non-compliance by the Magistrate with the provisions of [SECTION], it is obvious, would deprive the accused of all these, statutory concessions of no inconsiderable value and so he can legitimately contend that a trial held, in violation thereof should be quashed and his conviction and sentence set aside. [SECTION] of the Act was enacted, the Supreme Court observed in the case of [PRECEDENT] (supra), with a view to protect from harassment a person, guilty of a minor infraction of the [ACT] or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25/-. The concessions given and the facilities provided to an accused charged with an offence under the Act cannot be permitted to be whittled down at the hands of a Magistrate taking cognizance of the offence on the specious plea that since the accused had put in appearance in the Court there was no necessity of issuing the summons, Therefore, I see no way out of the conclusion that the trial staged by Shri [ENTITY] was vitiated because of non-compliance with the provisions of [SECTION] of the Act. The corollary that follows is that the conviction of the petitioner and the sentence imposed on him cannot be sustained.
6. The next point urged by Shri [ENTITY] was that since the offence had been committed in the very presence of Shri [ENTITY], it was obligatory on him in terms of [SECTION] of the Code that he should inform the accused that the latter is entitled to have the case tried by another Court, and that this having not been done the trial held was vitiated. [SECTION] provides that when a Magistrate takes cognizance of an offence under [SECTION] of the Code, 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 objects to being tried by such Magistrate, the case shall be committed to the Court of Session or transferred to, another Magistrate for trial. [SECTION] of the Code enacts that a District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. We have the affidavit of the petitioner that when his vehicle was stopped by the police officer, Shri [ENTITY] was present on the Toad and that that police officer and the Magistrate remained together right from the moment of stopping the vehicle until the trial was concluded.
A reference to the file of the Sessions Judge would show that he called the report of Shri [ENTITY] respecting the grounds stated in the revision petition, that Shri [ENTITY] sent a reply to the Sessions Judge, and that all that he could state therein was that he had nothing else to add to what had been recorded in the order-sheet of the case file. Obviously, the Magistrate had not the courage to deny that he and the police officer were standing side by side on the road when the latter stopped the vehicle driven by the petitioner. It is correct that the Magistrate took cognizance of the case not on the basis of his own knowledge but on the report submitted to him by the police officer only a few minutes after the offence was detected. However, to contend in such circumstances that the Magistrate had not taken cognizance upon his own knowledge or suspicion would be more apparent than real. [SECTION] of the Code enacts that 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. The illustration added to the section says that if A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise Laws, A is disqualified from trying this case as a Magistrate.
The Supreme Court observed in the case of [PRECEDENT] , that it is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially, and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases, it was observed further, the test is not whether in fact a bias has affected the judgment but the test always is and must be whether a litigant could reasonably apprehend that a Mas attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense, the Supreme Court pointed out, that it is often said that justice must not only be done but must also appear to be done.
7. In the background of the statutory provisions and the principles set out above, I feel convinced that Shri [ENTITY] should not have tried the case against the petitioner. If when the vehicle was stopped by the police officer the Magistrate was standing along with the latter, and if only some minutes thereafter the accused was tried on the charge detected, and if he was taken before the Magistrate by the police officer who detected the crime for the purposes of that trial, the accused could not but labour under the impression that the Magistrate was well aware of the particulars of the offence charged and that the only safe course open to him was to plead guilty and thereby avoid harassment. The accused was therefore clearly deprived of adequate and reasonable opportunity of preparing his defence, and he was also deprived of the privilege of being defended by a legal practitioner, a privilege vouched to the citizen by [SECTION] of the [ACT]. The petitioner has alleged in para 11 of the grounds adopted in the revision petition that he had not been even furnished with a copy of the police report, submitted to the Court before his trial. Hence, the trial of the accused cannot be said to have been either fair to him or to have been held in the proper judicial atmosphere and those features of the trial coupled with non-compliance with the provisions of [SECTION] and [SECTION] of the case inevitably lead to the conclusion that the trial stands vitiated. I hold accordingly.
8. As a result, I allow the petition and on setting aside the conviction and sentence of [ENTITY] I direct that he be re-tried on the offence charged. The fine, if paid, shall be refunded to him.