Delhi District Court
M.C. Mehta vs . Union Of India In Writ Petition ... on 21 December, 2013
In the Court of Sh. Balwinder Singh, Metropolitan Magistrate03
(Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL1PD2020
Challan No. : 807274
Circle : VVC
U/S. : 66/192A & CMVR 138(3)/177 of M.V. Act, 1988.
State
Versus
Mohd. Jahangir
S/o Sh. Lal Bahadur
R/o A2/867, Madanpur Khadar,
New Delhi110076.
Date of Filing the Challan :16.01.2013
Arguments Heard on :20.11.2013
Date of Judgment :21.12.2013
Plea of the accused :Not Guilty
Final Order :Acquitted
Present: Ld. APP for the State
Accused in person alongwith Ld. Counsel Sh.V.K. Pandey.
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 & CMVR 138(3)/177 of Motor Vehicle Act, 1988 (hereinafter referred to as M.V. Act). The brief fact of the case as per prosecution are that on 15.01.2013 at about 03.00 pm the accused Mohd. Jahangir was driving one vehicle (Chartered Bus) bearing No. DL1PD2020 at National Highway8 while coming from Dhaula Kuan side and going towards Gurgaon Vehicle No. : DL1PD2020 side. It is alleged against him that he overtook one vehicle bearing No.DL1LM1457 which was in running condition alongwith some other vehicle which were plying on the road at that time. It is further alleged against him that he was also not wearing seat belt at that time. The above act of overtaking another commercial vehicle (four wheeler) in running condition has been declared to be a violation of the 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. Therefore, the accused was challaned for the abovementioned violations vide challan bearing No. 807274 which is Ex.PW1/A. The offending vehicle was also impounded U/s 207 of M.V. Act and O.S.S. Form was also issued to the accused which is Ex.PW1/B.
2. Since the offences were 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.10,00,000/.
3. Notice of accusation was served upon the accused/driver U/s 251 CrPC to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined two witnesses namely PW1 SI Gunpal Singh, No.1457D and PW2 Const. Khushi Ram, No.2442DAP, and also proved the challan which is Ex.PW1/A. PW1 SI Gunpal Singh in his examinationinchief deposed that on the day of incident i.e. 15.01.2013 he was posted on duty at Vasant Vihar traffic circle and was performing his duties at National Highway8 alongwith PW2 Const. Khushi Ram. At about 03.00 p.m. while they were on duty at Mahipalpur Vehicle No. : DL1PD2020 Flyover the offending vehicle bearing No.DL1PD2020 came from Dhaula Kuan side and it was going towards Gurgaon side. The accused driver in the present case was driving the said vehicle and he was driving the same in the central verge of the road and was overtaking all the other commercial vehicles on road at that time. Upon noticing this, PW1 directed PW2 to signal the accused driver to stop his vehicle and on his direction, the accused driver stopped the same a few yards ahead of them. Thereafter, PW1 asked PW2 to bring the accused driver to him alongwith documents of the vehicle. After that, PW1 checked the documents of the vehicle and issued the present challan which is Ex.PW1/A against the accused for violating permit condition as laid down by Hon'ble Supreme Court of India. He also impounded the offending vehicle U/s 207 of M.V.Act and issued O.S.S. Form to the accused driver.
In his cross examination, PW1 deposed that he is not aware that how many lanes are provided/marked on the road at Mahipalpur Flyover. The offence was committed at the beginning of flyover and the accused was coming in first lane while it was entering the flyover and he was continuously overtaking all the other vehicles on the road at that time. However, he deposed that he did not note down the number of any of the other vehicles which were also overtaken by the accused driver. PW1 further deposed that there is no lane demarcation on the road just before the beginning of the flyover and that there is one service lane on the road from Dhaula Kuan side towards Gurgaon, which is atleast one kilometre long. PW1 has also deposed that he did not made any of the drivers of the vehicle which were overtaken, a witness in the present case since it is not practically possible to make them a witness in the present case as then there will be huge traffic jam on the road/flyover. He further deposed that there was no interceptor installed at the place of offence to check/monitor overtaking or any other violation Vehicle No. : DL1PD2020 by the commercial vehicles on the road.
In his examinationinchief, PW2 deposed that he do not remember the date of incident, however, the incident happened around 67 months back. At that time, he was posted on duty at Vasant Vihar circle and while on duty one day, the present challan which is Ex.PW1/A was issued against the offending vehicle in the present case since the driver of the same was overtaking some commercial vehicle which amounts to violation of permit condition as laid down by the Hon'ble Supreme Court of India. PW2 correctly identified the accused in the court.
In his cross examination, PW2 deposed that on the day of incident they were present at Mahipalpur Flyover with their Government Gypsy and were standing on the road out of the Gypsy. It was about 12.00 p.m. at that time. PW2 further deposed that he do not know which vehicle was overtaken by the accused and that vehicle was also not stopped by us. PW2 deposed that there was 34 lanes marked on the road at the place of offence. The driver of the vehicle which was overtaken was also not made a witness in the present case. He stopped the offending vehicle on the direction of PW1 but, thereafter, he did not participated in the prosecution proceedings against the accused and they were conducted by PW2 only. In the end, PW2 negated the suggestion of Ld. Defence Counsel that he was not present at the spot or that he is falsely deposing in the present case.
5. 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 Vehicle No. : DL1PD2020 driving the offending vehicle on the day of incident at National Highway8, however, he submitted that he was not driving the vehicle in central verge of the road nor did he overtook any other commercial vehicle.
6. After examination of accused/driver U/s 313 CrPC, he submitted that he do not wish to lead Defence Evidence. Thereafter, the matter was fixed for hearing of final arguments.
7. 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 & CMVR 138(3)/177 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 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 Vehicle No. : DL1PD2020 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 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 Vehicle No. : DL1PD2020 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 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, Vehicle No. : DL1PD2020 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 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 Vehicle No. : DL1PD2020 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 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 Vehicle No. : DL1PD2020 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 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.
Vehicle No. : DL1PD2020
(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.
1. Guideline (b) prohibits overtaking of any other four wheel motorised vehicle and (e) makes the same a violation of permit condition and the present case the accused has been charged with the violation of the above mentioned guideline. Sec. 138(3) of Central Motor Vehicles Rules, 989 provides that:
(3) In a motor vehicle, in which seatbelts have been provided under subrule (1) or subrule (1A) of rule 125 or rule Vehicle No. : DL1PD2020 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 the seat belts while the vehicle is in motion.
The penalty for violation of CMVR 138(3) is provided in Section 177 of M.V. Act.
Sec.177 of The Motor Vehicle Act,1988 provides that :
General provision for punishment of offences - Whoever contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence be punishable for the first offence with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees.
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;
Vehicle No. : DL1PD2020 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] 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.
8. 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."
2 . That the accused driver was driving the offending vehicle without wearing seat belt.
Vehicle No. : DL1PD2020 To prove this, firstly Ld. APP for State has argued before the court that both the prosecution witness namely PW1 SI Gunpal Singh and PW2 Const. Khushi Ram 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 as per the testimony of PW1, the violation took place at 3.00 p.m. at Mahipalpur Flyover. On the other hand, PW2 deposed that the violation took place at 12.00 p.m. Therefore, there is a clear contradiction with respect to the time of commission of violation.
Secondly, PW1 deposed that the accused driver was driving the offending vehicle in central verge of the road and was overtaking all the other commercial vehicles on the road. However, he did not mentioned the number of any of vehicle which were overtaken by the accused driver. In fact in his cross examination, he clearly deposed that he did not note down the registration number of any of the vehicle which were overtaken by the accused driver. Neither PW1 made any efforts nor did he put forth any reasonable explanation for such omission and the reason submitted by him that it would have created traffic jam on the road does not appears to be convincing as if he can stop the offending vehicle without caring for traffic jam then he should have stopped at least one vehicle which was overtaken to provide some corroboration to his allegation of overtaking by the accused. Similarly, PW2 deposed that he do not know which vehicle was overtaken by the accused driver. Further, PW1 and PW2 both deposed Vehicle No. : DL1PD2020 that even any of the driver of the vehicles which were overtaken were also not made a witness to corroborate their allegation against the accused. PW2 further deposed that he simply stopped the offending vehicle on the direction of PW2 and, thereafter, all the proceedings were conducted by PW1 only and he did not participated in the same.
Therefore, there is nothing on record to corroborate the story of PW1 and PW2 as their own testimonies are contradictory to each other. Further, there is no public witness has been joined in the present case. Testimony of PW1 remains uncorroborated particularly in view of the fact that PW2 himself deposed that he did not participated in any of the proceedings while the accused was prosecuted. He just stopped the offending vehicle on the direction of PW1. Moreover, even the driver of the vehicles which were overtaken were also not made a witness to provide corroboration to the story of PW1 and PW2.
Thirdly, the Ld. Defence Counsel argued that PW1 deposed in his crossexamination that the violation took place at the beginning of the flyover and one service lane is also provided at that place alongwith the main road which is one kilometre long. It starts from Sanjay Tpoint and it makes way for the vehicles for Mahipalpur. He has also deposed that there is no lane demarcation on the road just before the beginning of the flyover. The Ld. Defence Counsel has argued that before the starting of the flyover, usually the vehicles which would be in third lane of the road have to enter the central verge of the road since at that place, it would be a lane changing zone and the vehicles which are to go straight will have to change their lane for the purpose of taking road to flyover. Therefore, in such a case, the said act of changing the lane cannot be termed as overtaking as it would be due to the peculiarity of the position of the road at that place. Moreover, sometime due to the traffic also the vehicles in service lane starts entering the Vehicle No. : DL1PD2020 main road and for that reason also sometimes it appears that the vehicle is overtaking the other vehicle whereas it may not be doing so. Therefore, in such a case the benefit of doubt must be given to the offending vehicle due to the special circumstances and also due to the peculiarity of the place of offence as it is a lane changing zone. Moreover, the testimony of PW2 is totally silent with respect to that aspect. He even did not deposed where the vehicle was actually stopped. It is the uncorroborated testimony of PW1 which only says that the accused was entering the Mahipalpur flyover at the time of violation though in his examination in chief he deposed that he was on duty at Mahipal pur flyover without specifying whether on flyover or before its start. Therefore , he is totally unreliable.
Fourthly, with respect to the allegation U/s 138/177 of M.V. Act i.e. not wearing seat belt, the Ld. Defence Counsel has argued that none of the prosecution witnesses have uttered a single word in their deposition about the said allegation. Therefore, this allegation remains totally unproved.
In the end, Ld. Defence Counsel has argued before the court that since the prosecution witness could not proved it beyond reasonable doubts that the accused was actually overtaking any commercial vehicle in running condition or that he was without seat belt, therefore, the accused be acquitted of all the charges against him.
On the other hand, Ld. APP for the State has argued before the court that all the inconsistencies pointed out by the Ld. Defence Counsel are not very material and does not throw away the case of prosecution. Both the prosecution witnesses have identified the accused and the reasons for failure to join any public witness in the present case were also clearly explained by them.
9. After hearing the submission of both the Ld. APP for the State as Vehicle No. : DL1PD2020 well as Ld. Defence Counsel, the court is of the opinion that all the inconsistencies pointed out by the Ld. Defence Counsel are very material. Both the prosecution witnesses are quite contradictory in their testimonies with respect to the violation alleged to be committed by the accused. Both of them are contradictory in their depositions with respect to the time of violation, with respect to the position of the place of offence, with respect to the place where the vehicle was stopped and the place where they were standing at the time of violation. Moreover, neither any public witness has been joined in the present case nor the drivers of the vehicles which were overtaken. 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. Further, omission to do the same on the part of the prosecution particularly in view of the fact that PW1 deposed that he did not note down the number of any of the vehicle raises serious suspicion as to the veracity of the testimony of both the prosecution witnesses.
The court also finds merits in the submission of Ld. Defence Counsel that the place of offence was a lane changing area where the vehicles which are to go straight will have to change their lane for the purpose of entering the flyover. In doing the same, they actually do not change their lane rather the position of the place becomes such that it appears that the vehicle has changed its lane from third lane to central verge, whereas in such a way the vehicle makes way Vehicle No. : DL1PD2020 for the other vehicles which were to take normal road and not to enter the flyover. Therefore, in such a case, the said act of changing the lane would not amount to overtaking and, accordingly, would not amount to violation of permit condition as laid down by the Hon'ble Supreme Court of India.
Further, with respect to the allegation that the accused was not wearing seat belt is concerned, nothing has been deposed by any of the prosecution witnesses in that regard. Therefore, the said allegation also remains not proved.
10. Hence, after considering all the material on record, testimonies of both the prosecution witnesses and after hearing the arguments of both the sides, the court is of the opinion that the prosecution is not able to discharge its burden and could not prove it reasonable doubts that the accused overtook any other commercial vehicle in running condition and that he was without seat belt. Therefore, he is acquitted of all the charges levelled against him U/s 66/192A & CMVR 138(3)/177 of M.V. Act 1988 as the same could not be proved beyond reasonable doubt.
Copy of this judgment be given free of cost to both the accused. Pronounced in the open court. File be consigned to record room.
Announced in the open court (Balwinder Singh)
on 21st day of December, 2013 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
Vehicle No. : DL1PD2020
Vehicle No. : DL1PD2020
Challan No. : 807274
Circle : VVC
21.12.2013
Present: Ld. APP for the State.
Accused in person.
Vide my separate judgment of even date, accused is acquitted for all the offences levelled against him since no accusation could be proved beyond all reasonable doubt against him.
Copy of judgment be supplied to the accused today itself. Documents if any, be released to its rightful owner unless required in any other case as per law.
File be consigned to record room after due compliance.
(Balwinder Singh) M.M.(Traffic)03, Saket Court, New Delhi 21.12.2013 Vehicle No. : DL1PD2020