Delhi District Court
17/11 State vs . Rahul & Anr. Page 1 Of 15 on 12 January, 2012
IN THE COURT OF SH. DINESH KUMAR, MM, TRAFFIC04,
SAKET COURTS COMPLEX, NEW DELHI.
CC no. 17/11
Challan No. 398096 97
Vehicle no. DL2W 1857
Circle KKC
State .............Complainant
Versus
(1) Rahul
S/o Sh. Jagat Singh
R/o H. no. C1276,
Sangam Vihar, New Delhi.
(2) Darshan Khurana
S/o Late. Hiranand Khurana
R/o N27, first floor, Kalkaji
New Delhi . ..................Accused
Present : Sh. V.K. Pandey, Ld. Counsel for the accused.
17/11 State vs. Rahul & Anr. Page 1 of 15
JUDGMENT
Name of the complainant, if any : Insp. Satyender K. Singh The offences complained off : S. 3, 5, 39, 56, 66/192A, 146, CMVR50/177,the M.V. Act, 1988.
Date of Commission of offence : 11.01.2011 Date of Institution of the Challan : 12.01.2011 Date on which Order was reserved : 15.12.2011 Date of Decision : 12.01.2012 The Plea of Accused : Not pleaded guilty. Final Order : Acquitted BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
1. By this judgment, I will dispose off the case of the prosecution based on Challans no. 398096 97. The brief facts stated in the challans are that on 11.01.2011 at about 10.50 A.M, accused Rahul was driving a commercial passenger vehicle Grameen Sewa 17/11 State vs. Rahul & Anr. Page 2 of 15 bearing no. DL2W 1857 at Maa Anandmayee Marg, near Govindpuri metro station.
2. The accused driver was picking the passengers at the above said place. The challaning officer checked the documents. The accused driver was found without Driving License. He could not produce any documents of the vehicle. Thus, it is alleged that the accused by picking passengers had violated the conditions of permit provided for the vehicle, punishable u/S 66.1/192 A of the Motor Vehicles Act, 1988 (hereinafter called the Act). The challaning officer found that the number plate of the vehicle was defective. The challaning officer issued a challan against the driver under section 3, 56, 66.1/192 A, 146, 130, of the Act, and CMVR 50. A separate challan against the owner/person in charge of the vehicle u/s 5 of the Act was also issued for allowing a person without D/L to drive the vehicle. The vehicle was also impounded.
3. Both the accused appeared in the court and were released on bail as the offences were bailable. Separate notices of accusation were served on both the accused separately u/S 251 of Cr.P.C, to which they pleaded not guilty and claimed trial.
17/11 State vs. Rahul & Anr. Page 3 of 15
4. The prosecution has examined two witnesses, namely PW1, Ct. Ram Naresh and PW2, Inspector Satyendra Kumar Singh. The PW2 also proved the challan on record as Ex. PW2/A. The witnesses were cross examined and the prosecution evidence was closed by order on 17.11.2011.
5. The statements of both the accused under Section 313 of Cr.P.C.
were recorded separately by putting all the incriminating circumstances appearing in evidence against them. In response they stated that they are innocent. However, they denied to lead defence evidence.
6. I have heard the arguments of Ld. defence counsel. The Ld. defence counsel has argued that the prosecution has failed to prove the guilt of accused. The Ld. Counsel has put various arguments in support of his claim. Ld. counsel has stated that no independent person is made a witness by the challaning officer. Only witnesses examined are interested witnesses.
7. In the present case, although no independent witness has been joined, however as per the settled preposition of law the testimony of official witnesses can not be discarded simply because no 17/11 State vs. Rahul & Anr. Page 4 of 15 independent witness has been examined by the prosecution. The Hon'ble High Court of Punjab & Haryana in "Balraj Singh Vs. State of Punjab" has held:
"in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. Statement of police officials without any independent corroboration inspires no confidence, this submission of the defence counsel seems to be not correct one. In case independent witness is not joined than evidence on file is to be scrutinized with great and caution mere nonjoining of dependent witness is not fatal".
Thus the duty of the court is to carefully peruse the testimonies of the official witnesses. However a court can not discard the testimonies only on the ground that the witnesses are interested witnesses. It is also a fact that generally it is the tendency of people not to become witness as they do not want to spare their time to go 17/11 State vs. Rahul & Anr. Page 5 of 15 for evidence. Therefore, most of the time it becomes very difficult to get any public witness.
8. Both the prosecution witnesses have stated in their testimonies that the accused had stopped his vehicle at Govindpuri metro station. He had been calling passengers for Badarpur. Testimony of PW1 is very important in the matter. In his crossexamination PW1 states:
"the driver and conductor were standing outside of the vehicle and were calling the passengers. Some passengers were sitting inside the vehicle. Vol. Two or three passengers. I only went to the vehicle and the TI was standing near his gypsy. The TI did not go to the offending vehicle and ask the name of passengers. No passengers boarded the vehicle before us. It took 10 minutes to make the challan by TI.... It is correct that no passengers came to board this offending vehicle before us despite that their repeated calling of passengers."
9. PW2 who is challaning officer also has deposed in his testimony that he had seen the accused driver picking passengers stage wise 17/11 State vs. Rahul & Anr. Page 6 of 15 by calling for Badarpur from Govindpuri metro station. He has deposed that the accused driver could not show any stage carriage permit and his D/L. In his cross examination the PW has deposed that he did not remember what amount was charged by the accused from the passengers. Thus the challaning officer had allegedly seen the accused calling passengers and only on this basis he came to conclusion that the accused had violated the conditions of permit.
10. It is noteworthy to mention here that the STA while introducing Grameen Sewa vehicles had issued contract permit to these vehicles. In starting no separate routes were allotted to these vehicles. At the time of the present challan also, no route was allotted to the offending vehicle. Therefore these vehicles could take passengers from any one point to another one. However if these vehicles took passengers stage wise it would amount to the violation of the conditions of permit punishable u/s 192A of the Act which reads as under:
"192A. 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 17/11 State vs. Rahul & Anr. Page 7 of 15 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 lo 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:17/11 State vs. Rahul & Anr. Page 8 of 15
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."
Perusal of Section 192A of the Act shows that a person can be punished u/s 192A only if violation of permit conditions are related to the route on which, or the area in which, or the purpose for which, the permit is granted. In case of Gramin Sewa vehicles no routes were specified. So the vehicle could be used as contract carriage vehicle all over Delhi.
11. In the present matter, the challaning officer has alleged that the accused driver had stopped the vehicle at the spot and he was calling passengers for Badarpur. PW1 has deposed that the accused driver was standing outside of the vehicle and calling passengers. some passengers were also sitting inside the vehicle. Now all these facts does not show that the vehicle was used as stage carriage. The Motor Vehicles Act, 1988 provides the definitions of a contract carriage and a stage carriage. Clauses (7) and (40) of Section 2 of the Motor Vehicles Act, 1988 defines 'contract carriage' and 'stage carriage' respectively. The clauses read as under:
(7). "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward 17/11 State vs. Rahul & Anr. Page 9 of 15 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,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 motorcar notwithstanding the separate fares are charged for its passengers;
x x x x x (40) "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 of the journey;
Careful perusal of the definition of contract carriage makes it clear that a Gramin Sewa vehicle is a contract carriage vehicle. Section 2(7)
(b)(i) & (ii)of the Act clearly lays down that a Maxi cab is contract 17/11 State vs. Rahul & Anr. Page 10 of 15 carriage vehicle. Maxi cab is also defined in the Act. Clause (22) of Section 2 of the Act provides:
"22. "maxicab" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward."
The term 'Motor vehicle' is also defined under clause()of section 2 of the Act which reads:
"28. "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 twenty-five cubic centimeters."
12. Perusal of all these provisions of law would show that a Gramin Seva vehicle is a contract carriage vehicle. In the present challan, the challaning officer had only observed that the driver was calling the passengers. He did not make further inquiry from the passengers. As per the testimony of PW1 challaning officer even 17/11 State vs. Rahul & Anr. Page 11 of 15 did not went to the vehicle and prepared the challan. No reasonable inquiry was made before preparation of the challan. The challaning officer had impounded the vehicle for violation of permit conditions. The punishment for violation of conditions of permit provided under Section 192 A, M.V. Act is very harsh. Section 192A of Motor vehicles Act reads as under:
192A. 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 sub-section (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 lo 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.17/11 State vs. Rahul & Anr. Page 12 of 15
(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.
13. Thus, violation of conditions of permit entails a harsh punishment.
Therefore, a Challan/complaint for violation of permit conditions can not be and should not be prepared like any other complaint/ challan for petty offences. The responsibility of prosecution is to prove the allegation beyond reasonable doubt. In the present case, however, there is nothing on the record to show that the challaing officer had made reasonable inquiry before preparation of challan. Witnesses did not see any passengers boarding or deboarding the vehicle. The vehicle was in stationary position when the witnesses saw the incidence. The accused driver was standing outside the vehicle and he was not even sitting on the driver seat. The accused was allegedly calling passengers for another point Badarpur. These facts does not show that the vehicle was used as a stage carriage. The benefit of doubt is given to the accused.
14. As deposed by the PW1 the driver was standing outside of the 17/11 State vs. Rahul & Anr. Page 13 of 15 vehicle. He was not driving the vehicle at the spot. Section 3 of the Act contains the provision of offence of driving a vehicle without driving license. It reads:
3. Necessity for driving licence. - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle ; and no person shall so drive a transport vehicle [other than[ a motorcab or motor cycle] hired for his own use or rented under any scheme made under sub - section (2) of section 75] unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
The language of the Section makes it clear that a person can be prosecuted u/s 3 if he is driving a vehicle in a public place. Driving a vehicle must mean actual driving a vehicle. In the present case however the accused driver was not found driving the vehicle. Rather he was standing outside the vehicle. Therefore he can not be punished for the offence of driving a vehicle without driving license. Similarly accused no. 2 can not be punished for the offence u/s 5 of the Act.
15. The accused has produced the F/C, CC permit, I/C of the 17/11 State vs. Rahul & Anr. Page 14 of 15 vehicle(OSR). So, offences of not having documents of the vehicles are not proved. None of the witness has deposed regarding the defective number plate. Therefore, the benefit of doubt goes in favour of the accused.
16. Thus, in view of aforesaid discussions, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubts. Therefore, both the accused are acquitted of all the allegations.
Pronounced in the open court on 12.01.2012.
(Dinesh Kumar) MM04, Traffic (South) Saket Courts, New Delhi 12.01.2012 17/11 State vs. Rahul & Anr. Page 15 of 15