IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 OP(Crl.).No. 1756 of 2011(Q) ---------------------------------- ST.3011/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT -III, THRISSUR .................... PETITIONER --------------- NISHAD.A.R,S/O.A.R.RAMACHANDRAN, PERMANENTLY,RESIDING AT ATHIYARATH HOUSE, GOSSAIKKUNNU,KURIACHIRA PO,THRISSUR 680 006. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD RESPONDENT(S): --------------------- 1. STATE OF KERALA,REP.SECRETARY TO HOME DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,THIRUVANANTHPAURAM. 3. SUB INSPECTOR OF POLICE, OLLUR POLICE STATION, OLLUR ,THRISSUR. BY THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.) No.1756 of 2011 -------------------------------------- Dated this the 2nd day of June, 2011. JUDGMENT Ext.P2, special summons for a petty offence issued by the learned Judicial First Class Magistrate-III, Thrissur in S.T.No.3011 of 2011 is under challenge in this proceeding at the instance of the accused. 2. Vide Ext,P2, petitioner was summoned to appear before learned Magistrate on 02.06.2011 to answer a charge under 'Section 138 of the Motor Vehicles Act' (for short, “the Act”). According to the learned counsel, allegation against him is that he drove vehicle bearing registration No.KL-8-T-7257 without wearing seat belt on 26.04.2011 at about 5.30 p.m.. The Ollur Police registered S.T.No.3011 of 2011 for the said, alleged offence. It is contended that on that day, petitioner was at Chennai as could be seen from Ext.P3, photocopy of attendance register. The more forcible argument is that 'Section 138 of the Act' does not prescribe any offence, instead it only conferred power on the State Government to make rules for enforcing provisions contained in Chapter VIII of the said Act other than matters specified under Section 137 of that Act. It is argued by learned counsel that Ext.P2, special summons does not also conform to the mandatory requirements under Section 206 of the Code of Criminal OP(Crl.) No.1756/2011 2 Procedure (for short, “the Code”). On these grounds it is prayed that Ext.P2, special summons may be quashed. I have heard learned Public Prosecutor also who took notice for the respondents. 3. So far as the argument that at the relevant time petitioner was at Chennai is concerned, I am afraid, that is not a matter which this Court has to decide in a proceeding under Article 226 of the Constitution of India. That involves disputed questions of fact and, with opportunity to the prosecution to meet it, has to be urged before the trial court. 4. The second limb of argument requires consideration. 'Section 138 of the Act' does not prescribe any offence as rightly pointed out by the learned counsel. On the other hand it is Rule 138(3) of the Central Motor Vehicles Rules, 1989 (for short, “the Rules”) which prescribes that in a motor vehicle in which seat belts have been provided as per Sub-rule (1) or Sub-rule (1A) of Rule 125 or Rule 125A, as the case may be, it shall be ensured that the driver, and the person seated in the front seat or the persons occupying front facing rear seats, as the case may be, wear seat belts while the vehicle is in motion. Section 177 of the Act states that offences for contravention of any provision of the Act or any Rule, Regulation or Notification made thereunder and for which no penalty is otherwise provided under the Act is punishable under the said provision. As such, non-wearing of seat belt is the offence, it is punishable OP(Crl.) No.1756/2011 3 under Rule 138(3) of the Rules read with Section 177 of the Act. Ext.P2, summons, if the allegation is non-wearing of seat belt, does not mention the Section of offence correctly. 5. It is also seen that in Ext.P2, except as to the provision of law (which itself is wrong) and the case number the column for date of appearance remains blank (Date of appearance is stated on the top). Under Section 206 of the Code the special summons in case of petty offence among other things must mention that if the offender desires to plead guilty to the charge without appearing before the Magistrate he shall transmit before the specified date by post or messenger to the Magistrate the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader to authorise, in writing the pleader to plead guilty. In Ext.P2, the column to fill up the amount of fine in case petitioner intends to plead guilty is not mentioned. So much so, Ext.P2 cannot be said to be in accordance with the requirements of Section 206 of the Code and is liable to be quashed. 6. But, I make it clear that this order will not stand in the way of learned Magistrate issuing proper special summons for the offence/offences allegedly committed by petitioner complying with the requirements of Section 206 of the Code. OP(Crl.) No.1756/2011 4 Resultantly with the above observation this Original Petition is allowed and Ext.P2, special summons issued to the petitioner is quashed. THOMAS P.JOSEPH, Judge. cks