Delhi District Court
The Present Criminal Appeal U/S 375 ... vs The State (Nct Of Delhi) on 30 March, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Appeal No. 22/13
Dr. Rajesh s/o Sh Jai Singh
R/o H.No. 488
V.P.O Nathupur
District Gurgaon
Haryana
.......... Appeallant
Versus
The State (NCT of Delhi)
........... Respondent
Appeal filed on : 18.03.2013
Reserved for Order on: 25.03.2013
Date of Decision: 30.03.2013
ORDER
The present criminal appeal u/s 375 Cr.PC. has been filed against the Order dated 22.02.2013 passed by Sh Santosh Kumar Ld. MM while disposing of challan no.35571 against vehicle no. HR26 BS 2013 thereby convicting the accused/appellant u/s 185 MV Act and sentenced him to suffer SI for 15 days and to pay fine of Rs.2000/ and in default of payment of fine to further undergo SI for 05 days and the driving licence of the appellant had been suspended for 6 months.
Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.1 of 7
2. Briefly stated the facts of the case for giving rise to this present appeal are that the appellant/convict was challaned on the allegation that on 18.02.2013 at about 8.44 p.m. the appellant was found driving the vehicle bearing registration no. HR26BS 2013 (Car) near sec.1 Dwarka picket and on checking it was found that appellant was driving the said vehicle after consuming the liquor. Accordingly, challan u/s 185 of MV Act was prepared and appellant/convict was directed to appear in the court. On 22.02.2013 the appellant appeared before Ld. Trial court and pleaded his guilty. After hearing the arguments, Ld. MM sentenced him to suffer SI for 15 days and to pay fine of Rs.2000/ u/s 185 MV Act and in default of payment of fine to further undergo SI for 5 days. The appellant was also disqualified from holding licence for 6 months as per section 20(2) MV Act. The appellant paid the fine vide receipt no.666388 dated 22.2.2013. The appellant was released on bail till filing the appeal by the Ld. Trial court on an application moved by the appellant before the Ld. Trial court. Feeling aggrieved by the said order of sentence and disqualification from holding driving licence, the appellant has preferred this present appeal for setting aside the said order on sentence.
3. The present criminal appeal was received by this court on 18.03.2013 and notice to the State/Respondent was issued. Trial Court record was also ordered to be summoned.
4. The trial court record was received and thereafter I have heard the arguments from the Ld. Counsel for the appellant as well as Ld. APP for the State Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.2 of 7
5. During the course of arguments Ld. Counsel for the appellant has argued that the appellant is doctor by profession and having good reputation in the society and he is the sole bread earner in his family. If he is sent behind bars, irreparable loss would be caused to him and his family and his reputation shall be ruined in the society. It is submitted that he is first offender and belongs to very respectable family and imprisonment of the appellant would leave a scar on his life. It is submitted that the appellant undertakes not to repeat such an act in future. Ld. Counsel stated that the disqualification from holding licence is too long and it may kindly be reduced. It is further submitted that the lenient view may kindly be taken against the appellant.
6. Ld. APP for the State has argued that the Ld. Trial court has passed the order after going through the provision of Law and application of judicious mind. There is no illegality or infirmity in the order passed by the Ld. Trial court.
7. In consideration of the submissions made by Ld. APP for the State as well as Ld. Counsel for the appellant, I have also perused the record and relevant provision of Law. The appellant has pleaded guilt u/s 185 MV Act. The fine imposed i.e. Rs.2000/ has been deposited vide receipt no. 666388 dated 22.02.2013. The appellant has prayed for setting aside the order for suffering SI for 15 days and disqualification of his licence for 6 months. The benefit of Probation of offenders Act has not been extended to the convict. Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.3 of 7
8. Regarding disqualification of licence for 6 months, I have also perused the provision of sec.20 MV Act. which contemplates:
20. Power of Court to disqualify: (1) Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, the court by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorised by law, declare the persons so convicted to be disqualified, for such period as the court may specify, from holding any driving licence to driver all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence:
PROVIDED THAT in respect of an offence punishable u/s 183 no such order shall be made for the first or second offence.
(2) Where a person is convicted of an offence under C1.(c) of sub section (1) of sec. 132, Sec. 134 or Sec. 185, the court convicting any person of any such offence shall order the disqualification under sub section (1), and if the offence is relatable to C1.(c) or sub section (1) of Sec.132 or Sec. 134, such disqualification shall be for a period of not less than one month and if the offence is relatable to sec. 185, such disqualification shall be for a period of not less than six months.
(3) A court shall unless, for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person : (a) who having been convicted of an offence punishable under that section
(b) who is convicted of an offence punishable u/s 189 or (c) who is convicted of an offence punishable u/s 192.
(4) A court ordering the disqualification of a person convicted of an offence punishable u/s 184 may direct ...............
(5) The court to which an appeal would ordinarily lie from any conviction of an offence of the nature specified in subsection(1) may set aside or vary any order of disqualification made under that sub section notwithstanding that no appeal would lie against the Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.4 of 7 conviction as a result of which such order of disqualification was made.
9. On perusal of the order passed by the Ld. MM the present appellant had been disqualified from holding driving licence for the period of 6 months. Considering the provision of MV Act as well as observations of Ld. MM regarding period of disqualification, I am of the view that the period of disqualification is proper.
10. The appellant is a first offender and not previous convict. He has no criminal history. He is only the bread earner in the family. The sentencing policy followed in India is based upon reformative theory and not on retributive theory. The purpose of sentence is and should be to reform a criminal so as to convert him into a law abiding citizen. It is seen that the sentence of imprisonment, sometimes hardens the first time offender and instead of reforming him, makes him a hardened criminal. While dealing with petty cases such as the present one, wherever it is felt necessary, the principle contained in almost all the religious scripture that "forgiveness is the best punishment" should be invoked. The court can take aid of the provisions contained in section 360 Cr.PC in such cases by releasing the offender on probation and watch his conduct.
11. Courts have been given discretion to award or not to award imprisonment to the convicts and let them off by imposing fine only. In some offences, where the imprisonment has been made mandatory, it is the Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.5 of 7 discretion of Court to award either minimum period of imprisonment, which is imprisonment till rising of Court or of any period upto the maximum provided for that particular offence. This is to enable the court to balance the aggravating and mitigating factors arising from the circumstances in which convict is placed, the nature of offence and the manner it was committed. Only then the court can arrive at the appropriate sentence to be awarded to the offender.
12. In the present case, the appellant was held for drunken driving and convicted u/s 185 M.V. Act. He was driving his car after having taking liquor. The alcohol content in his blood was found to be 269.7mg/100 ml against the minimum permissible limit, which is 30 mg/100ml. These facts aggravate the offence of the appellant. The menace of drunken driving is on the increase day by day. Many innocent lives are lost on the Delhi roads by such irresponsible and unlawful act. A drunk driver is a threat to all the road users. He poses a great risk not only to his own life but to those of others, who are on the road along with him.
13. However, it is to be noted that the appellant is doctor by profession. He is first offender. He is living with his family and has burden of his family being sole bread earner. Imprisonment at this stage would put an indelible blot on his future career. Also the alcohol content in his blood was found to be much below the maximum limit of the breath analyzer which is upto 500 mg/100ml. These are the mitigating factors in favour of the appellant.
Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.6 of 7
14. On balancing the aforesaid aggravating & mitigating factors, I do not find that the sentence of imprisonment is warranted in this case. I therefore modify the sentence and now the appellant is sentenced to Till Rising the Court.
15. Further the order for disqualification of driving licence of the appellant for 6 months is maintained just to keep away the appellant to repeat such an act in future and hence the order of Ld. MM disqualifying him from holding any driving licence for a period of six months is maintained.
16. With these modifications, the appeal of the appellant is partly allowed. The trial court file be sent back with the copy of this order and appeal file be consigned to record room. Copy of this order be also given to the appellant dasti for compliance.
Announced in the Open Court on 30.03.2013 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Dr.Rajesh Vs. The State (NCT of Delhi) Crl.Appeal No.22/13 Page No.7 of 7