Calcutta High Court (Appellete Side)
In Re : Ravindra Yadav @ Robi Yadav vs State Of U.P. & on 17 May, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 17.05.2013
C.R.M. No. 13572 of 2012 In Re:- An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on August 22nd, 2012 in connection with Barasat P.S. Case No. 1096 dated 01.06.2012 under Sections 417/420/188/120B IPC read with Section 108 (iii) of the Central Motor Vehicles Rules, 1989 along with Section 177 of the Motor Vehicles Act.
And In re : Ravindra Yadav @ Robi Yadav ... Petitioner.
Mr. Navanil De ... for the
Petitioner.
Mr. Antariksha Basu ... for the State.
Mr. J. N. Chatterjee ... Amicus Curiae.
On June 1, 2012 at about 12.35 hours, Officer-in-Charge traffic guard Barasat was monitoring traffic system at Dak Banglow More Barasat. At that time he found one black colour Chevrolet Tavera car was coming at high speed from the side of Madhyamgram and proceeding towards Dak Banglow More with a red beacon with flasher fitted at its top. At once the said Police Officer and the members of his force became alert to facilitate smooth passing of the said VIP car but when the car was just crossing them, the police team noticed huge noise and uproar coming from inside the car and a few young boys there. Since such type of indecent activities inside a VIP car carrying dignitaries raised suspicion in their mind, the police officers on duty signalled the car to stop but the driver of the car did not obey such signal and tried to flee away at high speed, but after a hot chase the police officers are able to intercept the car. On being asked by the police, the driver produced his driving 2 licence but no papers regarding the vehicle. In the meantime the young boys who were inside the car managed to escape. On being closely interrogated, the driver disclosed that one Sanjay Shaw of 86/2, Kaji Sukanta Sarani Charakdanga Phoolbagan, Kolkata hired the car in the morning from the owner and he fixed the red flasher on the top to evade police interference and to run smoothly. The said Sanjay Shaw is the main brain behind the same and his four other associates were also with him. It was further revealed that one Manmohan Singh is the owner of the car but the car was purchased only in January 2012 and although the ownership had not changed, he gave on hire the said car to one Robi Yadav the proprietor of Balaji Call Centre. The said car WB-06/3961 fitted with red flasher light at the top was seized and the driver was arrested.
Following the aforesaid incident the Officer-in-Charge Barasat Traffic Guard lodged a complaint to the Officer-in- charge Barasat Police Station whereupon Barasat Police Station Case No. 1096/12 under Section 417/420/188/120B of the Indian Penal Code read with Section 108(iii) of the Central Motor Vehicles Rules, 1989 and under Section 177 of the Motor Vehicles Act has been registered.
The petitioner Ravindra Yadav apprehending arrest in connection with the said case has applied for anticipatory bail before this Court.
2. The learned Counsel appearing on behalf of the petitioner vehemently contended that the only non-bailable offence involved in this case is the offence punishable under Section 420 IPC but even without disputing the correctness of 3 the allegation made in the FIR, no such offence can be said to have been made out. Therefore, it is prayed that petitioner's application for anticipatory bail be considered favourably.
3. On the other hand, the learned Public Prosecutor for the State contended that on the face of the allegation made in the FIR, although no offence under Section 420 IPC has been made out, but certainly a clear case under Section 419 IPC and also the offences punishable under Section 177 of the Motor Vehicles Act are made out. He further submitted although the offence under Section 419 IPC is cognizable, the same is a bailable one. He then submitted that unauthorized use of red beacon light in private vehicles in the city and in the different districts of this State are rampant. According to him not only on the one hand using and taking advantage of the same, crimes were committed, but also on the other hand, it has become a status symbol for some persons although they are not eligible for that. He further submitted that even in some cases the dignitaries, after their retirement, still shamelessly use such red beacon light in their vehicles. He vehemently contended the menace of using unauthorizedly the red beacon light by the high dignitaries and the persons after their retirement ought to be dealt with very seriously and except the persons who are included in the notification issued by the State Government and Central Government, if any person is found to have used the same, legal action must be taken at once.
During the hearing, on behalf of the State, three separate affidavits were filed. One on behalf of the Transport Secretary, Government of West Bengal and two others on behalf of 4 Director General and Inspector General of Police, Traffic, West Bengal, and Joint Commissioner of Police, Traffic Department, Kolkata Police.
Going through the affidavit filed by the Transport Secretary we find according to the averment made therein the State Government has issued four notifications delineating the dignitaries who are eligible to use red light with flasher and red light without flasher on the top of the vehicle and car stickers were provided to them from the Transport Department. Apart from that, the Central Government has also issued a separate notification specifying the dignitaries who are so eligible. Any misuse of red light on vehicle warrants penal action under Rule 108(iii) of the Central Motor Vehicles Rules 1989 read with Section 177 of the Motor Vehicles Act 1988. The Transport Department has already brought the same to the notice of the police authorities and insisted for taking prompt legal action against those wrongdoers, to keep close watch and to conduct regular raid.
The Director General & Inspector General of Police, Traffic, West Bengal in his affidavit disclosed that upon receipt of the letter from the Transport Secretary, Government of West Bengal issued under his office memo no. TS-485/3M- 118/2001/06 dated July 7, 2006 as regards the misuse of red light in the vehicles, the same was communicated to all quarters for taking immediate steps against the unauthorised use of red beacon lights in the vehicles. In his affidavit a list was annexed showing the number of cases started during last five years for such violation.
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In his affidavit the Joint Commissioner of Police, Traffic, Kolkata Police disclosed that pursuant to the order passed by this Court in connection with WP No. 2369 (w) of 2006, which was a public interest litigation against unauthorized user of red beacon light on the top of the vehicles, the notifications containing the details of the dignitaries eligible for using such beacon light were published on May 12, 2011 in two daily newspapers, "Times of India" and "Anandabazar Patrika". Simultaneously a similar notification was also published in Kolkata Police Gazette dated 26th March, 2011. In the said affidavit a list was annexed containing the number of cases started for unauthorized use of red beacon light. It was submitted such unauthorized use of red beacon lights is not only punishable under Section 177 of the Motor Vehicles Act, the same is also punishable under Section 419 IPC. Those offences are cognizable， bailable and compoundable.
The learned counsel Jayanta Narayan Chatterjee filed a written notes of argument and submitted in this State there is massive misuse of red beacon lights on the vehicles by the persons other than the persons eligible and on many occasions it is also noticed that even the family members of the dignitaries in their absence use beacon light in the car. It was also contended that by such unauthorised use of beacon lights, many person are evading parking fees and toll tax and violating the traffic signals. He also referred to few instances where by using red beacon light, the terrorists conducted attack at various important places. He pointed out that the criminals are also using such beacon lights in their vehicles while committing 6 crime and as a tool to avoid police intervention. According to him several high rank officers, both of State Government and Central Government, including senior police officers, are unauthorizedly using beacon lights in their vehicles and enjoying many advantages to which they are not at all entitled but police are turning a blind eye and are not taking any action against them. It is also submitted that for such violations not only the penal consequences under the Motor Vehicles Act are attracted but offence punishable both under Sections 417 and 419 of the Indian Penal Code are equally attracted but police are only registering cases under the provisions of the Motor Vehicles Act which only provide for a nominal fine.
Now coming to the case in hand we find the counsels for the parties are unanimous in their opinion that in case of unauthorized use of red beacon light not only the penal consequences provided under the Motor Vehicles Act is attracted but at the same time offences punishable under Section 417 IPC and under Section 419 IPC are also committed. However, before reaching to a judicial conclusion we propose to examine the entire issue taking into account together, the over all factual background of a case where red beacon light is used unauthorizedly and the provisions of Sections 417 and 419 IPC. While Section 415 IPC defines cheating and Section 416 IPC defines cheating by personation, Section 417 IPC and Section 419 IPC prescribe punishment for such offences.
The provisions of section 415 IPC and Section 416 IPC are reproduced below:
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S. 415 IPC: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this section.
S. 416 IPC: A person is said to "cheat by personation"
if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation: The offence is committed whether the individual personated is a real or imaginary person.
Therefore, from a plain reading of the provisions of Section 416 IPC it is manifest that when a person who is not eligible to use red beacon lights, with or without flasher on his vehicle but use the same pretending to be a person so eligible and knowingly substituting him as a person who is eligible to use red beacon light at the top of the vehicle and thereby representing that he is a person which he is really not, we have no iota of doubt that he is guilty of an offence punishable under Section 419 IPC. The offence punishable under Section 419 IPC being a cognizable offence the police is legally bound to 8 record an FIR if such an incident is reported by any person, meaning thereby if a person whoever he may be, if noticed such misuse of beacon light at the top of the vehicle by a person not included in the list of dignitaries who are eligible to do so as per the notification from time to time issued by the Central Government or State Government, shall have every right to lodge FIR. In such a situation the concept of locus standi, which is, of course, concept foreign to criminal jurisprudence unless, the statute provides for the same, will not be attracted and if police authority refused to record FIR that would amount to failure to perform their statutory duty. While dealing with a similar issue in the case of Abhoy Singh Vs State of U.P. & Ors. in SLP Civil No. (s) 25237 of 2010, on April 4, 2013 the Hon'ble Apex Court amongst others observed as follows:
The Motor Vehicles Act was enacted in 1988 and the Rules were framed by the Central Government and various State Governments in 1989. The legislative bodies and the authorities have not thought it proper to make appropriate amendments to bring the provisions of the Act and the Rules in conformity with the aspirations of the people of a republic and even now a small section of the society considers itself to be as a special category as compared to other citizens. This appears to be the primary reason why the Governments after Governments have issued notifications under Section 6 of the 1988 Act and the rules framed thereunder authorising the use of beacons on government vehicles (some persons use such beacons even on private vehicles). The time has come when the use of beacons on the vehicles, government or non- 9 government is drastically restricted so that the people's right to freedom of movement is not hindered in any manner whatsoever.
The learned counsel representing some of the State Governments have not controverted the assertion made by Shri Salve that not only the high dignitaries on duty but large number of other elected and non-elected persons are allowed to use beacons and sirens/hooters causing serious inconvenience to the general public using the roads and even otherwise.
Shri salve also brought to our notice the fact that the vehicles of the States neighbouring NCT of Delhi use beacons with flashers and sirens even though they are not permitted to do so in the NCT of Delhi.
With a view to ensure that menace of beacons on vehicles and use of sirens is stopped except in the cases of heads of the constitutional institutions, we deem it proper to give an opportunity to the Central Government as also the Governments of all the States and the Administration of the Union Territories to amend the relevant provisions of the Rules and the notifications issued under Rule 108 of the Central Motor Vehicles Rules, 1989 and corresponding provisions in the State Rules as also Rule 119 for restricting the use of beacons by the heads of political executive, legislature and judiciary only and total prohibition on the use of siren except by police, ambulances, fire fighters, Army and those permitted in Rule 119(3) of the 1989 Rules and the corresponding Rules framed by the State Governments. 10
We also deem it proper to indicate that it will be prudent for the Central Government and the State Governments as well as the administration of the Union Territories to substantially increase the fine for violation of the provisions of the 1988 Act and in particular those relating to the matters indicated hereinabove.
The hearing of this case thereafter adjourned till 9th of July, 2013. We have already come across at least 2 cases where the terrorists taking advantage of red beacon light launched attack on 13.12.2001 on the Indian Parliament and on 1.6.2006 at RSS Head Quarters, Nagpur. There are many other cases where committing crime red beacon light was used to mislead the people and the police. We are sure that the police and the R.T.A. shall take necessary legal action against the wrongdoers and public at large must also come forward to stop such misuse by reporting the police authority. Since we are considering the question of anticipatory bail, we are restrained from passing any direction in the matter other than reminding the law-enforcing agency to perform their statutory duty and enlighten the general public about their statutory rights. The State Government must take necessary steps to create public awareness in this regard.
Since already the Apex Court is in seisin of the matter and more particularly when we are dealing with the question of anticipatory bail, we are of the opinion that we must refrain from passing any order except reminding the police authority to strictly comply with the order passed by this Hon'ble High Court. We also remind the police authority about directions from time-to- time passed by this Court in W.P. No. 2369(w) of 2006 and we are sure that the police authority will act in terms of the direction 11 passed by this Hon'ble Court and shall take appropriate legal action against the persons, whoever he may be, for misuse of red beacon light in their vehicles. It goes without saying since such offences attract punishment under Section 419 IPC which is a cognizible offence. If any incident is reported to the police about such misuse by any person, they shall record the FIR and investigate the matter. We are of the further opinion, in the interest of justice, in those cases investigation must be completed promptly and if any person is found to be prima facie guilty he should be brought before the Court of law for trial. The State Government is also directed to notify in two English newspapers and two other newspapers in different vernaculars published in this State. Such notification shall be issued either in the front page or in the 5th page on three alternative dates so as to give real and adequate opportunity to the persons who are misusing red beacon light in their vehicles unauthorizedly, to avoid penal consequences.
Now coming to the question of anticipatory bail, considering the materials collected during investigation and the nature of the allegations, we allow this application.
In the event the petitioner is arrested in connection with the above noted case, he shall be released on bail to the satisfaction of the Arresting Officer upon furnishing bond of Rs. 10,000/- on condition that after release, he shall surrender before the regular Court within a week thereafter.
Let a copy of this order at once be sent to the Chief Secretary, Government of West Bengal, Home Secretary, 12 Government of West Bengal and the Transport Secretary, Government of West Bengal for taking appropriate steps in terms of this order.
The copy of this order also be sent to the Commissioner of Police, the Director General & Inspector General of Police and The Joint Commissioner of Police, Traffic for their information and necessary action.
The application being CRM No. 13572 of 2012 is, thus, disposed of.
(Ashim Kumar Roy, J. ) (Murari Prasad Shrivastava, J.)