Kerala High Court
Khairunnisa vs State Of Kerala on 20 June, 2023
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
CRL.MC NO. 4758 OF 2023
PETITIONER/ACCUSED:
KHAIRUNNISA
AGED 39 YEARS
AGED 39, W/O OF HUSSAIN, MANNINGAPATTU HOUSE,
ATHANIKKAL, PONMUNDAM PO, VALIYATHUR, MALAPPURAM,
PIN - 676106.
BY ADVS.
P.C.ANIL KUMAR
MANU.M.THOMAS
P.SREESHA
RESPONDENT/STATE & DE FACTO COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
SRI. M P PRASHANTH, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C No. 4758 of 2023 2
ORDER
The petitioner herein is the accused in S.T.No.1244/2023 on the file of the Judicial First Class Magistrate Court I, Tirur. The aforesaid case has arisen from Crime No.391/2023 of Kalpakanchery Police Station registered inter alia under Section 336 of IPC r/w Section 5, 180, 199A(1)(2) of the Motor Vehicles Act, 1988.
2. The prosecution allegation is that on 11.04.2023, the petitioner permitted a minor to ride a scooter bearing Registration No.KL-55-N-9771. The minor is alleged to have ridden the bike in a rash and negligent manner, endangering the life and personal safety of the general public. It is also alleged that as the offense has been committed by a juvenile, the petitioner, in his capacity as the guardian, is liable to be proceeded against under Section 199A of the Motor Vehicles Act, 1988.
3. Sri.P.C.Anilkumar, the learned counsel appearing for the petitioner, submits that the initiation of prosecution proceedings against the petitioner is a clear abuse of process. According to the petitioner, a learned Single Judge of this Court had occasion to consider identical issues in Crl. M.C.No.7479 of 2022 and, after evaluating the entire facts and circumstances, came to the conclusion that none of the offenses would be made out.
Crl.M.C No. 4758 of 2023 3
4. Heard the learned Public Prosecutor.
5. I have considered the submissions advanced.
6. I find that identical issue was considered by a learned Single Judge of this Court in Crl. M.C.No.7479 of 2022. The observations and findings in paragraphs Nos.4 to 7 of the judgment are extracted below:
"4. The contention put forward by the learned counsel for the petitioner is that none of the offences alleged against him would be attracted against him. The crux of the contention of the learned counsel for the petitioner is that Section 199A of the Motor Vehicles Act requires that an offence must have been committed by a Juvenile and only thereupon the charge under Section 199A can be imposed upon the guardian of such juvenile. It is pointed out that, in this case, no such offences are charged against the juvenile and in the absence of such prosecution, the proceedings against the petitioner cannot be continued. On the other hand, the learned Public Prosecutor would oppose the same.
5. After considering the relevant aspects, I find some force in the contention put forward by the learned counsel for the petitioner. Section 199A of the Motor Vehicles Act reads as follows:
"199-A. Offences by juveniles.--(1) Where an offence under this Act has been committed by a juvenile, the guardian of such juvenile or the owner of the motor vehicle shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing in this sub-section shall render such guardian or owner liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
Explanation.-- For the purposes of this section, the Court shall presume that the use of the motor vehicle by the juvenile Crl.M.C No. 4758 of 2023 4 was with the consent of the guardian of such juvenile or the owner of the motor vehicle, as the case may be.
(2) In addition to the penalty under sub-section (1), such guardian or owner shall be punishable with imprisonment for a term which may extend to three years and with a fine of twenty-five thousand rupees.
(3) The provisions of sub-section (1) and sub-section (2) shall not apply to such guardian or owner if the juvenile committing the offence had been granted a learner's licence under section 8 or a driving licence and was operating a motor vehicle which such juvenile was licensed to operate.
(4) Where an offence under this Act has been committed by a juvenile, the registration of the motor vehicle used in the commission of the offence shall be cancelled for a period of twelve months.
(5) Where an offence under this Act has been committed by a juvenile, then, notwithstanding section 4 or section 7, such juvenile shall not be eligible to be granted a driving licence under section 9 or a learner's licence under section 8 until such juvenile has attained the age of twenty-five years.
(6) Where an offence under this Act has been committed by a juvenile, then such juvenile shall be punishable with such fines as provided in the Act, while any custodial sentence may be modified as per the provisions of the Juvenile Justice Act, 2000 (56 of 2000).]"
As per section 199A, the guardian of a juvenile can be implicated in for the said offence only if a juvenile has committed the offence under the Motor Vehicles Act. It is to be noted that, the said provision starts with the words "Where an offence under this act has been committed by juvenile". In this case, even though it is stated that the juvenile drove the vehicle, no offence is charged against the said juvenile. In the absence of any charge against the juvenile for the commission of an offence under the Motor Vehicles Act, no offence under section 199A against the guardian of such juvenile would be attracted. In other words, the commission of the offence by the juvenile is the most crucial ingredient for attracting the Crl.M.C No. 4758 of 2023 5 offence under section 199A of the Motor Vehicles Act.
6. Besides the above ground, there is yet another aspect in this case. No materials were produced to substantiate the age of the petitioner's son, who allegedly drove the vehicle. In the absence of any documents to prove the age of the son of the petitioner, it cannot be concluded that a juvenile drove the vehicle. Since the commission of an offence under the provisions of the Motor Vehicles Act by a juvenile is a mandatory requirement for attracting the offence under Section 199A of the Act, the absence of such an offence and the materials to substantiate the commission of such an offence by a juvenile would cut the root of the prosecution case. Therefore, under no circumstances can the petitioner be prosecuted for the offences under Section 199A of the Motor Vehicles Act.
7. The remaining offence is under Section 336 of the Indian Penal Code, which reads as follows:
" 336. Act endangering life or personal safety of others.--
Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
The specific contention of the learned counsel for the petitioner is that, apart from the allegation that the petitioner permitted his minor son to drive the vehicle, there is no allegation to attract the aforesaid offences. To constitute the said offence, there must be a specific allegation that the accused committed a rash and negligent act to endanger human life or the personal safety of others. In this case, even though it is stated that the driving of the vehicle by the son of the petitioner was in a rash and negligent manner, the said rashness or negligence was attributed to the driver of the vehicle, only because of the reason that he was a juvenile and was not having a driving license. As far as the question of the minority of the driver is concerned, absolutely no documents are produced to substantiate the same and in the absence of such materials, it cannot be concluded that the person driving the vehicle was a juvenile at the relevant time. As rightly pointed out by the learned counsel for the petitioner, in the statements of the witnesses, apart from the fact that the driver was a minor, no other acts which would qualify the rashness or negligence are specified. In such circumstances, I am of the view that the offence under Section 336 of the Indian Penal Code also would not be attracted."The specific contention of the learned Crl.M.C No. 4758 of 2023 6 counsel for the petitioner is that, apart from the allegation that the petitioner permitted his minor son to drive the vehicle, there is no allegation to attract the aforesaid offences. To constitute the said offence, there must be a specific allegation that the accused committed a rash and negligent act to endanger human life or the personal safety of others. In this case, even though it is stated that the driving of the vehicle by the son of the petitioner was in a rash and negligent manner, the said rashness or negligence was attributed to the driver of the vehicle, only because of the reason that he was a juvenile and was not having a driving license. As far as the question of the minority of the driver is concerned, absolutely no documents are produced to substantiate the same and in the absence of such materials, it cannot be concluded that the person driving the vehicle was a juvenile at the relevant time. As rightly pointed out by the learned counsel for the petitioner, in the statements of the witnesses, apart from the fact that the driver was a minor, no other acts which would qualify the rashness or negligence are specified. In such circumstances, I am of the view that the offence under Section 336 of the Indian Penal Code also would not be attracted.
7. As held by this Court, the guardian of a juvenile can be proceeded against only if a juvenile has committed the offense under the Motor Vehicles Act. In the case on hand, there is no case for the prosecution that the juvenile has committed any offense. No proceeding has been initiated against the juvenile either. In that view of the matter, the petitioner cannot be proceeded against for having committed an offense under Section 199A of the Motor Vehicles Act. Furthermore, no materials have been placed before the court to substantiate that the person who rode the scooter is a juvenile. Insofar as Section 336 of the IPC is concerned, there has to be a specific allegation that the accused had committed a rash and negligent act intending to endanger human life or the personal safety of others. As there is Crl.M.C No. 4758 of 2023 7 no material to show that the person who drove the scooter is a juvenile and that he is not having a driving license, the offense under Section 336 of the IPC will not be attracted. The findings of the learned Single Judge would apply to the instant case as well.
Resultantly, this petition will stand allowed. All further proceedings pending against the petitioner as S.T.No.1244/2023 on the file of Judicial First Class Magistrate Court I, Tirur will stand quashed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sru
Crl.M.C No. 4758 of 2023 8
APPENDIX OF CRL.MC 4758/2023
PETITIONER'S ANNEXURES
Annexure A1 CERTIFIED COPY OF THE CRIME NO 391/2023 OF
KALPAKANCHERRY PS DATED 11.04.2023.
Annexure A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO 391/2023 OF KALPAKANCHERRY PS, MALAPPURAM
DATED 14.04.2023.