Delhi District Court
Supreme Court In M.C. Mehta vs . Union Of India In Writ Petition ... on 26 May, 2014
In the Court of Sh. Balwinder Singh, Metropolitan Magistrate
(Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL1M3321
Challan No. : 6720046214
Circle : HKC
U/S. : 66/192A of M.V. Act, 1988.
State
Versus
Sabhajeet
S/o Sh. Hari Ram
R/o Village Sohgupur, P.O. Fatehpur,
PS Jalalpur, Ambedkar Nagar, U.P.
Date of Filing the Challan :28.03.2014
Arguments Heard on :03.05.2014
Date of Judgment :26.05.2014
Plea of the accused :Not Guilty
Final Order :Acquittal
Present: Ld. APP for the State
Accused in person alongwith Ld. Counsel Sh.S.K. Srivastava
and Smt. Surabhi Srivastava.
J U D G M E N T
1. Vide this judgment, I shall dispose of the present challan filed by the prosecution under Section 66/192A of Motor Vehicle Act, 1988 (hereinafter referred to as M.V. Act). The brief fact of the case as per prosecution are that on 27.03.2014 at about 02.35 pm the accused Sabhajeet was driving one vehicle (MGV) bearing No. DL1M3321 at outer Ring Road near Hauz Khas Metro Vehicle No. : DL1M3321 1 of 19 Station while coming from Jia Sarai pedestrian traffic signal towards Chirag Delhi flyover. It is the case of prosecution that the accused Sabhajeet was driving the abovementioned vehicle in first lane of the road and overtook another commercial fourwheeled motorised vehicle bearing No. HR55J0675 which was also in running condition from its right side. As per prosecution by doing so, the accused has committed the violation of permit condition as laid down by the Hon'ble Supreme Court in M.C. Mehta Vs. Union of India in Writ Petition No.13029 of 1985. It is further alleged against the accused that he was also not wearing seat belt at that time and when the challaning officer asked him to produce his valid driving licence, he could not produce the same. Therefore, the accused was challaned for the abovementioned violations vide challan bearing No. 6720046214 which is Ex.PW1/A. Since the accused driver was without a driving licence, a challan bearing No.6720046314 was also issued against the owner of vehicle and is Ex.PW1/B. The offending vehicle was also impounded U/s 207 of M.V. Act and O.S.S. Form was also issued.
2. After the appearance of both the accused, the accusations were explained to them in vernacular to which the accused driver submitted that he pleads guilty for the offence U/s 3/181 and 138.3/177 of M.V. Act. However, he did not plead guilty for the charge of driving the offending vehicle in first lane and overtaking another commercial vehicle. Since, the plea of the accused was voluntary for the abovementioned offences, the same was accepted and the accused was convicted for offence U/s 3/181 and 138.3/177 of M.V. Act. However, since the accused produced his valid driving licence in the court, he was admonished for the offence U/s 3/181 of M.V. Act. For the offence U/s 138.3/177 of M.V. Act the accused was sentenced to pay a fine of Rs.100/. The fine was paid by the accused driver Vehicle No. : DL1M3321 2 of 19 accordingly.
Similarly, the owner of vehicle also pleaded guilty for the allegation of violation of Section 5/180 of M.V. Act levelled against him. The plea was voluntary so the same was accepted, and, accordingly, the owner of the vehicle was convicted for the offence U/s 5/180 of M.V. Act. However, since the accused driver had already produced his valid driving licence in the court, the owner of vehicle was admonished for offence U/s 5/180 of M.V. Act in the interest of justice.
3. Since the offence U/s 66/192A of M.V. Act was bailable, the accused/driver was admitted to bail on furnishing of bail bond and surety bond in a sum of Rs.10,000/. The offending vehicle was also released on superdari on furnishing of Superdarinama in a sum of Rs.5,00,000/.
4. Notice of accusation was served upon the accused/driver U/s 251 CrPC to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined two witnesses namely PW1 ASI Ram Avtar, No.2129T, HKC and PW2 Const. Mukesh, No.3574T, HKC and also proved the challan which is Ex.PW1/A. PW1 ASI Ram Avtar in his examinationinchief deposed that on the day of incident i.e. 27.03.2014 he was performing his duties at Hauz Khas Metro Station near Panchsheel flyover alongwith PW2 Const. Mukesh. At around 02.35 p.m., the offending vehicle bearing No. DL1M3321 came from Munirka side. It was coming in first lane of the road and was coming overtaking another commercial fourwheeled motorised vehicle bearing No. HR55J0675. After Vehicle No. : DL1M3321 3 of 19 noticing this, he and PW2 Const. Mukesh signalled the accused driver to stop his vehicle. Thereafter, PW1 demanded the documents of the vehicle from the accused driver. However, he could not produce his valid driving licence. Thereafter, PW1 issued the present challan which is Ex.PW1/A bearing his signature at point A against the accused driver and also issued another challan against the owner of vehicle which is Ex.PW1/B bearing his signature at point B. The offending vehicle was also impounded U/s 207 of M.V. Act.
In his cross examination, PW1 deposed that both of them i.e. PW1 and PW2 noticed that the accused driver was driving his vehicle in first lane of the road and was coming overtaking another vehicle bearing No.HR55J0675. PW1 also deposed that there is one flyover which is around 300400 metres before the place where they were performing their duties on the day of incident and there is another flyover which just starts from the exit gate of Hauz Khas metro Station. The distance between the ending point of first flyover and starting point of second flyover is around 400 metres. There is no lane marking of the road provided on these flyovers. However, on the plain road which falls in between the first and the second flyover, there is a clear demarcation of lane system with the help of white stripes painted on the road. As per PW1 when they noticed the offending vehicle, it had already crossed the first flyover and it was plying on the plain road falling between the first and the second flyover. PW1 further deposed that the distance between the place where they were standing and the ending point of the first flyover was around 200250 metres and the second flyover starts around 100150 metres ahead of that place. PW1 also deposed that the vehicle bearing No.HR55J0675 which was overtaken by the accused driver was a Light Goods Vehicle. However, he did not stopped the said vehicle since it was plying in the proper lane of the road i.e. extreme left. The accused driver overtook this vehicle Vehicle No. : DL1M3321 4 of 19 from right side. PW1 further deposed that he did not prepare any site plan in the present case, nor could he joined any public witness since generally nobody agrees to be a witness. In the end, PW1 negated the suggestion of Ld. Defence Counsel that he was deposing falsely in the present case.
In his examinationinchief, PW2 Const. Mukesh deposed that on the day of incident i.e. 27.03.2014 he was performing his duties near Panchsheel flyover after crossing Hauz Khas Metro Station alongwith PW1. They were standing 50 metres ahead of Panchsheel flyover on road towards Chirag Delhi. At around 2.30 p.m. they noticed that the offending vehicle bearing No.DL1M3321 which was coming from Munirka side was coming overtaking another commercial fourwheeled motorised vehicle bearing No.HR55J0675 and entered first lane of the road. At that time, it was plying on the flyover and was getting down. Upon this, both of them i.e. PW2 and PW1 signalled the accused driver to stop his vehicle. Thereafter, PW1 SI Ram Avtar inspected the documents of the vehicle and the accused driver could not produce his driving licence. Therefore, PW1 issued the present challan against the accused driver and impounded the offending vehicle U/s 207 of M.V. Act.
In his cross examination, PW2 deposed that the vehicle which was overtaken by the accused driver was also stopped. However, it was let off after noting its registration number. PW2 deposed that there is clear three lane demarcation provided on the Panchsheel flyover from its starting point till its end. However, on the road which starts from the ending point of the Panchsheel flyover no such lane demarcation for different category of vehicle is provided as the road starting from the ending point of the Panchsheel flyover has been just recently reconstructed. In the end, PW1 also negated the suggestion of Ld. Defence Counsel that he is deposing falsely in the present case.
Vehicle No. : DL1M3321 5 of 19
6. After the completion of Prosecution Evidence, the statement of accused driver U/s 313 CrPC was recorded. During the examination of accused U/s 313 CrPC, the entire incriminating evidence appearing against the accused was put to him and he was given an opportunity to explain the incriminating evidence appearing against him to which he submitted that he accepts the fact that he was driving the offending vehicle on the day of incident at outer Ring Road near Hauz Khas metro station. However, he submitted that it is incorrect that he was driving the offending vehicle in first lane of the road and overtook any other commercial vehicle . In the end he submitted that the present challan is a false challan.
7. After examination of accused/driver U/s 313 CrPC, he submitted that he do not wish to lead Defence Evidence and, therefore, the matter was fixed for hearing on final arguments.
8. I have heard Ld. APP for the State as well as Ld. Defence Counsel at length and have carefully gone through the entire record and evidence and after carefully perusing the same, I am giving my finding as per below:
In the present challan, the accused was challaned for the violations of Section 66/192A of M.V. Act,1988.
Sec. 66 of The Motor Vehicle Act , 1988 provides that:
Necessity for permits - (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of Vehicle No. : DL1M3321 6 of 19 the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for on in connection with a trade or business carried on by him.
(2) The Holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semitrailer not owned by him, subject to such conditions as may be prescribed:
[Provided that the holder of a permit of any articulated vehicle may use the primemover of that articulated vehicle for any other semitrailor] (3) The provisions of subsection (1) shall not apply
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority
or by a person acting under contract with a local
Vehicle No. : DL1M3321 7 of 19
authority and used solely for road cleansing, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the
conveyance of corpses and the mourners
accompanying the corpses;
(e) to any transport vehicle used for towing a disabled
vehicle or for removing goods from a disabled
vehicle to a place of safety;
(f) to any transport vehicle used for any other public
purpose as may be prescribed by the State
Government in this behalf;
(g) to any transport vehicle used by person who
manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may by notification in the official Gazette, specify to any transport vehicle purchased in one State and proceeding to a place, situated in that Sate or in any other State, without carrying any Vehicle No. : DL1M3321 8 of 19 passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle.
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
(4) Subject to the provisions of subsection (3), sub section (1) shall, if the State Government by rule made under section 96 so prescribes apply to any motor vehicle adapted to Vehicle No. : DL1M3321 9 of 19 carry more than nine person excluding the driver.
The penalty for violation of Section 66 is provided in Section 192A.
Sec.192A of The Motor Vehicle Act,1988 provides that :
Using vehicle without permit - (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of subsection (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:
Provided that the court may for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:
Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.
(3) The court to which an appeal lies from any conviction Vehicle No. : DL1M3321 10 of 19 in respect of an offence of the nature specified in subsection (1), may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.
It is further pertinent to mention here that the Hon'ble Supreme court in M.C Mehta V. U.O.I (writ petition 13029 of 1985) laid down certain guidelines and passed certain directions for the control and regulation of traffic in NCR and NCT, Delhi. The Hon'ble Supreme Court of India in M.C. Mehta Vs Union of India and Ors. 1998 JCC (SC) 25 has laid down the following directions for transport vehicles operating within the jurisdiction of Delhi :
(a) No heavy and medium transport vehicles and light goods vehicles being four wheelers would be permitted to operate on the roads of NCR and NCT, Delhi unless they are fitted with suitable speed control devices to ensure that they do not exceed the speed limit of 40 KMPH. This will not apply to transport vehicles operating on Interstate permits and national goods permits. Such exempted vehicles would, however, be confined to such routes and such timings during day and night as the police/transport authorities may publish. It is made clear that no vehicle would Vehicle No. : DL1M3321 11 of 19 be permitted on roads or during the times other than aforesaid time without a speed control device.
(b) Transport vehicles are not permitted to overtake any other four wheel motorized vehicle.
(c) Wherever it exists, buses shall be confined to the bus lane.
(d) Buses halt only at bus stops designated for the purpose and within the marked area.
(e) Any breach of the aforesaid directions by any person would, apart from entailing other legal consequences, be dealt with as contravention of the condition of the permit which could entail suspension/cancellation of the permit and impounding of the vehicle.
(f) No transport vehicle shall ply unless it carries a proper authorization card, containing the name, photograph and other such particulars of the driver, issued by the State Transport Authority authorizing such driver to drive the vehicle. The authorization card shall be displayed in the vehicle at a conspicuous place.
Guideline (b) prohibits overtaking of any other four wheel motorised vehicle and (e) makes the same a violation of permit condition and in the present case the accused has also been Vehicle No. : DL1M3321 12 of 19 charged with the violation of the above mentioned guideline. It is also important to go through some other important provisions for the better understanding of violation of provisions of Motor Vehicle Act as alleged to be committed by the accused. Therefore, we must understand the meaning of permit, contract carriage permit as well as stage carriage permit, a motor vehicle, a transport vehicle.
Section 2(31) of The Motor Vehicle Act, 1988 defines "Permit"
"Permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle;
Section 2(7) of The Motor Vehicle Act, 1988 defines "Contract carriage"
"Contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum
(a) on a time basis, whether or not with reference to any route or distance; or
(b) from one point to another, Vehicle No. : DL1M3321 13 of 19 and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes
(i) a maxicab; and
(ii) a motor cab notwithstanding that separate fares are charged for its passengers;
Section 2(40) of The Motor Vehicle Act, 1988 defines "Stage Carriage".
"Stage Carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages journey; Section 2(28) of The Motor Vehicle Act, 1988 defines "Motor Vehicle"
"Motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twentyfive cubic centimetres] Vehicle No. : DL1M3321 14 of 19 Section 2(47) of The Motor Vehicle Act, 1988 defines "Transport Vehicle"
"Transport vehicle" means a public service vehicle, a good carriage, an educational institute bus or a private service vehicle.
9. Thus in order to prove the guilt of the accused and to sustain his conviction the prosecution is required to establish beyond reasonable doubts that:
1. The accused committed violation of permit conditions as laid down by the Hon'ble Supreme Court in M.C. Mehta Vs. Union of India (Writ Petition No. 13029 of 1985) which amounts to offence U/s 66/192A of M.V. Act Guideline No.1(b):
"that no transport vehicle shall overtake any other four wheel motorised vehicle."
To prove this, firstly Ld. APP for State has argued before the court that both the prosecution witness namely PW1 ASI Ram Avtar and PW2 Const. Mukesh have proved the challan on record and have correctly identified the accused. Both the prosecution witnesses have remained consistent in their testimonies.
However, Ld. Counsel for the accused has pointed out that there are many inconsistencies and loopholes in the testimonies of PW1 and PW2 which raises serious doubts as to the veracity of the prosecution story. Ld. counsel for the accused has pointed out the following inconsistencies in the testimonies of PW1 and PW2.
Firstly, he has argued before the court that the testimony of both the prosecution witnesses is totally contradictory to each other. As per the Vehicle No. : DL1M3321 15 of 19 testimony of PW1 they were performing their duties near Panchsheel flyover at Hauz Khas metro station and were standing on the road coming from Munirka side towards Chirag Delhi. PW1 further deposed in his crossexamination that there is another flyover which starts just from the exit gate of Hauz Khas Metro Station and it also goes towards Chirag Delhi. As per the testimony of PW1, the offending vehicle was plying on the road in between the first flyover and the second flyover. The said road has been clearly demarcated into three lanes with the help of white stripes painted on the road. PW2 further deposed that when he noticed the offending vehicle, it had already finished the first flyover and at that time it was plying on the plain/main road. As per PW1 the distance between the place where they were standing and the place where the first flyover ends was of about 200250 metres.
On the other hand, PW2 deposed in his testimony that they were performing their duties near Panchsheel flyover after crossing Hauz Khas Metro Station and were standing 50 metres ahead of the Panchsheel flyover. As per PW2 when they noticed the offending vehicle, it was plying on the flyover and was coming down. Further, PW2 also deposed in his crossexamination that on the road which starts from the ending point of Panchsheel flyover, there was no demarcation for different category of vehicles by laying down three lane system with the help of white stripes painted on the road as the said road has been just recently constructed. Therefore, all the above shows that both PW1 and PW2 are contradictory with the respect to the actual position of the road, distance between the place where they were performing their duties and the point where the first flyover ends as well as with respect to the position of the offending vehicle i.e. whether it was plying on the flyover or on the plain/main road.
Vehicle No. : DL1M3321 16 of 19 Secondly, the Ld. Defence Counsel has argued before the court that as per the prosecution story the accused driver was plying his vehicle in first lane of the road and was overtaking one another commercial four wheeled motorised vehicle HR55J0675 which was in running condition. However, to utter surprise neither the said vehicle was stopped for the purpose of collecting evidence by making the driver of the said vehicle a witness in the present case, nor did he tried to at least note down the name and address of the driver of the said vehicle so that he could be called in the court to prove the allegations of overtaking levelled against the accused driver. Further, there is another contradiction with respect to that fact in the testimony of both the prosecution witnesses. As per PW1 he did not stop the abovementioned vehicle whereas PW2 deposed that the said vehicle was stopped. However, it was let off after taking down its registration number.
Thirdly, the Ld. Defence Counsel has argued before the court that no public witness was joined in the present case by the prosecution to provide corroboration to the testimony of both the prosecution witnesses. The accused in his statement U/s 313 CrPC has categorically stated that he was falsely challaned in the present case. Therefore, in the absence of any independent and impartial witness and also in view of the statement of accused U/s 313 CrPC the uncorroborated testimonies of both the prosecution witnesses cannot be relied upon.
In the end, Ld. Defence Counsel has argued that since the prosecution could not prove anything on record against the accused, therefore, he must be acquitted of all the baseless and false charges levelled against him.
On the other hand, the Ld. APP for the State has argued before the court that the argument of Ld. Defence Counsel that since no public witness has been joined in the present case, therefore, the testimony of prosecution witnesses Vehicle No. : DL1M3321 17 of 19 cannot be relied upon is without any substance. Both the prosecution witnesses have totally corroborated each other in their testimonies and mere absence of any independent public witness does not itself throw away the case of prosecution.
10. After hearing the submission of both the Ld. APP for the State as well as Ld. Defence Counsel, I finds merits in the submissions of Ld. Defence Counsel. Both the prosecution witnesses are quite contradictory in their testimonies with respect to many facts pertaining to the present case. They are contradictory with respect to the position of the road where the alleged violations occurred. They are also contradictory with respect to the position of the offending vehicle i.e. Whether it was plying on the flyover or on the main road. They are also contradictory to the fact whether any lane demarcation has been provided on the place of offence or not. Absence of any public witness as well as no efforts for recording the name and address of the driver of the vehicle which was overtaken by the accused driver also raises some suspicion as to the veracity of the prosecution story. It is a rule of prudence that when the independent public witnesses are available at the spot they must be joined as public witnesses. In the case of nonjoining of public witnesses even when they were available and no plausible explanation coming forth from the prosecution for the same, the case of the prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of prosecution in absence of the independent public witnesses. Similar views have been expressed by the Hon'ble Supreme Court in Sanspal Singh Vs. State of Delhi, 1999, Cr.L.J 1a.
Hence, the court is of the opinion that the prosecution has failed to discharge its burden and has failed to prove the guilt of the accused beyond Vehicle No. : DL1M3321 18 of 19 reasonable doubt and, therefore, the accused is acquitted of the charge levelled against him U/s 66/192 M.V. Act.
Copy of this judgment be given free of cost to the accused. Pronounced in the open court. File be consigned to record room.
Announced in the open court (Balwinder Singh)
on 26th day of May, 2014 Metropolitan Magistrate,
Traffic, South District,
Saket, New Delhi.
Vehicle No. : DL1M3321 19 of 19