Delhi District Court
State vs . Md. Rashid on 22 October, 2013
IN THE COURT OF SH. PUNEET PAHWA, MM - 02(TRAFFIC),
PATIALA HOUSE COURTS, NEW DELHI
Vehicle No. : DL1RM6247
Challan No. : 110945
Traffic Circle : PTC
State Vs. Md. Rashid
S/o Sh. Ayyub Ali
R/o E357, Gali no.9, Subhash Mohalla,
North Ghonda, Delhi53
Date of filing of Challan : 23.02.2013
Date of Arguments : 17.10.2013
Date of Judgment : 22.10.2013
Plea of accused : Accused pleaded not guilty
Final Order : Acquitted
J U D G M E N T
1. Vide this judgment, I shall dispose of this challan bearing No.110945 whereby the accused was challaned under Section 66(1)/192A of the Motor Vehicle Act and under Rule 11(9) Delhi Motor Vehicle Rule read with Section 177 of Motor Vehicle State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 1 / 14 Act.
2. Brief facts of the case are that on 15.02.2013 at about 2:30 p.m. at Inner Circle C.P. the accused was driving his TSR bearing registration no. DL1RM6247. The accused was coming from the side of Barakhamba Road towards Inner Circle Connaught Place. At prepaid booth, Constable Reena was standing in civil dress and when she asked the accused to go to Najafgarh, the accused refused to take her to Najafgarh. For this act of refusal, the accused was challaned under Rule 11 Sub Rule 9 DMVR r/w Section 177 MV Act. Since as per the conditions of the permit, a TSR driver cannot refuse to take any passenger without showing any reasonable cause, the accused was also challaned for violating the permit conditions under Section 66/192A M.V. Act. At the time of making of the challan, driving license of the accused and RC of the vehicle was impounded and one copy of the challan was handed over to the accused and he was directed to appear in the court on 23.02.2013.
3. On 23.02.2013 when accused appeared in the court he desired to contest the present challan. Offence being bailable the accused was admitted to bail. Notice under Section 251 Cr.PC was framed against the accused to which he pleaded not guilty and claimed trial.
4. To establish its case, the prosecution has examined two witnesses namely ASI Jasmeet Singh, Challaning Officer as PW1 and W.Ct. Reena as PW2.
5. Statement of accused under Section 313 Cr.PC was recorded vide which he had denied all the allegations levelled against him.
State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 2 / 14
6. In his defence, the accused himself stepped into the witness box and deposed as DW1. Thereafter the defence evidence was closed.
7. Arguments were heard on 17.10.2013 and case was fixed for orders for today i.e. on 22.10.2013.
Appreciation of evidence
8. Challaning officer ASI Jasmeet Singh appeared as PW1 and deposed that one TSR was coming from the side of Barakhamba Road and it was going towards Baba Kharak Singh Marg. At Janpath crossing, W.Ct. Reena was deputed in civil dress. She asked the accused to go to Najafgarh. The accused refused to go to Najafgarh. When PW1 asked the accused as to why he was not going to Najafgarh, the accused replied that since Najafgarh was very far away from that place, he refused to go to Najafgarh. Accordingly PW1 challaned the accused under the relevant section. The challan is Ex.PW1/A bearing signatures of the challaning officer at point A. In his crossexamination he had admitted that he did not see the TSR coming from the side of Barakhamba Road. W.Ct. Reena had informed him about the incident of refusal by the accused. He had further submitted that W.Ct. Reena was posted with him in PTC Circle and he had asked W.Ct. Reena to remain present there in civil dress. He had also asked her to board any TSR and if the driver refused to go, bring him to PW1. However no written direction was issued to W.Ct. Reena in that regard. He had further admitted that W.Ct. Reena was on her official duty on that day and if the accused had not refused, W.Ct. Reena would have gone to Najafgarh. He had further State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 3 / 14 admitted that he was standing approximately 100 meters away from W.Ct. Reena. When the accused refused to take W.Ct. Reena, she boarded that TSR and came to him. He had further submitted that no documents were seen by W.Ct. Reena nor the same were asked by her.
9. W.Ct. Reena appeared as PW2 and deposed that orders were issued to all the women Constables to remain present in civil dress at various place and to ask the TSR drivers to go to any particular place. Each woman constable was posted with one ZO. She has further submitted that she asked the accused to go to Najafgarh but he refused. Then she got into the TSR and took him to ZO. She informed the ZO that the accused was refusing to go to Najafgarh. On these ground the ZO challaned the accused. In her crossexamination she submitted that she was standing at Janpath crossing near Inner Circle Connaught Place. She had admitted that she did not actually intend to go to Najafgarh and it was just for the sake of asking she had asked the accused to go to Najafgarh. The accused refused to go there without disclosing any reason for the same. Although orders were issued by Joint CP but no written orders were given to her and she was informed by the Traffic Incharge of the circle about the said orders. Then she voluntarily submitted that generally the orders were being sent to the concerned traffic circle from where they get the information. She was deputed with ASI Jasmeet Singh who had directed her to stand there. She admitted that when she took the accused to the ZO, the ZO did not asked him to go to Najafgarh as such. He just asked the accused as to the reason why he was refusing to go to State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 4 / 14 Najafgarh. The accused refused to go to Najafgarh only because it was very far away from that place. She denied the suggestion put to her that the accused did not refuse to go to Najafgarh. She also denied the suggestion that the accused was challaned only because he did not show the documents of the vehicle. She also denied the suggestion that she did not boarded the offending vehicle as a passenger. She further denied that she had misused the power conferred upon her and that accused had been wrongly challaned just to satisfy her ego.
10. The accused himself appeared as DW1 and testified that on 16.02.2013 at 2:00 p.m. he was standing at Janpath Inner Circle, Connaught Place. One lady came and sat down in his TSR and asked him to go to Najafgarh. When he started to go, she asked him to take the TSR on the side of the road and asked him to show all the documents. Since she was not in uniform, the accused refused to show the documents to her. Then she asked him to take the TSR near Prepaid Booth. There she made a phone call and after sometime ZO arrived at the spot. The accused was ready to take her to Najafgarh still he was challaned. He had further testified that when asked they replied that they did not intend to go anywhere they just had to prepare the challan. In his crossexamination he had submitted that he did not lodge any complaint to any authority regarding the fact that he was challaned wrongly. Although he had stated the same orally to the ZO.
11. Ld. APP has argued that case of the prosecution has been sufficiently proved by both the witnesses and there is no contradiction in their testimonies so far as act of refusal is concerned. As per the conditions of the permit, the accused was duty State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 5 / 14 bound to take any passenger and he cannot refuse to take him on the ground that it was very far away from that place. Both the witnesses had specifically testified that on 16.02.2013 W.Ct. Reena had asked the accused to take her to Najafgarh but the accused refused and that is why he was challaned. This act of the accused amounted to refusal which resulted into violation of permit condition and therefore the accused is liable to be convicted. Ld. APP has further argued that so far as deposition of the DW1 is concerned this fact is unjustifiable that one lady sat down in the TSR and thereafter she asked the accused to show the documents. Moreover despite the fact that the accused was wrongly challaned, he did not lodged any complaint to any authority which itself puts a doubt in the story put forth by the accused.
12. On the other hand the Ld. Defence Counsel has argued that he has sufficiently explained the position of the accused in his statement under Section 313 Cr.PC and also through his statement as DW1. The main defence of the accused is that when he was standing at Janpath Crossing near the Zebra Crossing, W.Ct. Reena came and sat in his TSR and asked him to go to Najafgarh. When he started to go, she asked him to stop the vehicle and to show his driving license and badge. Since she was not in uniform he refused to show his driving license and his badge to her. Then she asked him to take the TSR to the nearby Prepaid booth and then she called the ZO. ZO came and asked him to show his driving license and badge. He showed his driving license and badge to the ZO. The ZO challaned him and impounded his driving license and his RC. The Ld. Defence State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 6 / 14 Counsel has argued that the present case is glaring example of misusing of powers by the Traffic Officials. The Traffic Officials thus became complainant and challaned the accused. There were no orders or directions under which W.Ct. was asked to remain present in the civil dress at that place. The accused has been challaned by the challaning officer just to satisfy his ego as the accused had refused to show his driving license and badge to W.Ct. Reena who was in civil dress. The Ld. Defence Counsel has further argued that prosecution has failed to produce any order or direction vide which W.Ct. Reena was directed to remain present in civil dress. She had admitted in her statement that on that day she was on her official duty how could she remain in civil dress on her official duty without having any written order to that effect. Ld. Counsel has further submitted that the circular on which prosecution has relied upon was issued on 13.5.2013 whereas the accused was challaned on 15.02.2013. Therefore the said circular is not applicable in the present case. He has further argued that there are lot of discrepencies in the deposition of PW1 and PW2. PW1 in his crossexamination admitted that W.Ct. Reena was on her official duty on that day and if the accused had not refused, W.Ct. Reena would have gone to Najafgarh. Whereas W.Ct. Reena has submitted that she did not intend to go to Najafgarh and it was just for sake of asking she had asked the accused to take her to Najafgarh. She had further admitted that even if the accused would not have refused, she would not have gone to Najafgarh. Ld. Counsel has further argued that the ZO was in his uniform and the accused being a TSR driver could not have dared to refuse to State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 7 / 14 take the passenger in the presence of the ZO. It was not practically possible for the accused to refuse any ZO. The Ld. Counsel has further argued that just for the sake of arguments, even if it is assumed that he refused, the case is not made out as at that time the accused was standing at Zebra Crossing that too on the middle of the road and at that place he was not bound to take the passenger. The last argument of the Ld. Counsel for the accused is that the said rule which costs a duty upon the TSR driver to not to refuse any passenger is applicable in the cases of actual passengers and not in the cases of dummy passengers. W.Ct. Reena was in civil dress and she did not actually intend to go anywhere therefore she cannot said to be real passenger and therefore act of the accused does not amount to refusal and therefore no violation of any permit condition has been committed by the accused.
13. I have perused the entire record and heard the contention put forth by both the parties. I have considered their respective contentions. The Cardinal principle of criminal jurisprudence is that the prosecution has to prove the charge framed against the accused beyond any reasonable shadow of doubt and this onus is always stationary on the prosecution and it never shifts. In the light of this principle, it is to be seen as to whether the prosecution has been successful in its endeavour to slap the criminal liability upon the accused or not?
14. The relevant provisions of law which are under consideration in present case are as follows: Section 66 (1)/192 of the MV Act provides as under: "no owner of State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 8 / 14 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".
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 Sec. 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 State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 9 / 14 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."
Rule 11(9) of DMVR : Duties, functions and conduct of Transport Vehicle Drivers and conditions The driver and conductor of a transport vehicle.
(ix) shall not, save for good and sufficient reason, refuse to carry any person, (expect those suffering from contagious diseases as given in Rule 5.p) tending the legal fare.
To establish its case, the prosecution has to prove that the accused had refused to carry W.Ct. Reena without showing any good and sufficient reason for the same. This is one of the permit condition for drivers of auto rickshaw that they shall not refuse to ply in place within the NCT of Delhi or State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 10 / 14 the area specified from time to time. Therefore the basic ingredient for violation under Rule 11 Sub Rule 9 of DMVR r/w 177 of MV Act is that the accused had refused to carry W.Ct. Reena to any place without showing any good and sufficient cause. So far as this act of refusal is concerned, testimony of PW1 is of no help. As the act of refusal did not take place in his presence, deposition of PW1 cannot be relied upon for the said purpose. In fact PW1 had himself admitted in his crossexamination that W.Ct. Reena informed him about the incident of refusal by the accused. He had further admitted that on that day W.Ct. Reena was on her official duty and she was directed to remain present there in civil dress. However no written order have been shown to that effect. He had further admitted that he was standing approximately 100 meters from W.Ct. Reena therefore the evidence of PW1 is no more than a hearsay evidence so far as the act of refusal is concerned. The only thing which has proved by PW1 is that the accused was challaned by him and nothing more. Similarly, deposition of PW2 also does not put much light on the act of the accused of refusing her to take Najafgarh. In her crossexamination W.Ct. Reena herself admitted that on that day she was on official duty and even if the accused had agreed, she would not have gone to Najafgarh. She asked the accused to go to Najafgarh but she did not actually intend to go there. It appears that she had asked the accused merely for the sake of asking to see whether the accused refuses to go or not. This is not sufficient to prove guilt of the State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 11 / 14 accused beyond reasonable doubt. The accused has been challaned under Section 66(1)/192A M.V. Act. It is a very serious violation and if convicted, it may result into suspension of permit of the accused for a few days. In such a case it was the duty of the challaning officer to take due case and caution and to apprehend the real culprits who actually refuse to take passengers and not those driver who have been asked to go to a particular place without intending to go at that place. The prosecution has failed to produce the relevant orders authorising women constable to become dummy passenger and challan the TSR drivers in case of refusal. Moreover, the circular which have been relied upon by the prosecution regarding safety of passengers the said circular has been issued on 13.05.2013 whereas the present challan pertains to the violation committed on 15.02.2013 therefore the said circular is not applicable in the present case. The prosecution has failed to show as to under what authority the challaning officer had deputed W.Ct. Reena in civil dress to apprehend the drivers who were refusing to take the passengers. Since this is a very grave violation, and conviction under this section may amount to suspension of permit which ultimately may effect right to livelihood of the accused persons therefore in such cases it is incumbent upon the challaning officer to apprehend the real culprits and not to ask the driver just for the sake of asking. It is however incumbant upon the prosecution to prove beyond all reasonable doubts that the accused had actually refused State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 12 / 14 to take any passenger to the desired place. In the instant case, the testimony of PW1 cannot be relied upon being a hearsay evidence and testimony of PW2 is also not sufficient to prove that the accused had actually refused her to take to Najafgarh. The accused himself appeared as DW1 and deposed that he never refused to take W.Ct. Reena to Najafgarh and it is only when he refused to show his document he was challaned. Looking into the entire prosecution story, the possibility of the accused having been wrongly challaned cannot be ruled out. Moreover since W.Ct. Reena did not actually intend to go anywhere, she cannot be said to be a passenger in the strict sense. It is well settled that in criminal law the prosecution has to prove its case beyond all reasonable doubts and if there is any doubt, the benefit should given to the accused. In the instant case also the prosecution has not been able to prove beyond all reasonable doubt the guilt of the accused and therefore the benefit of doubt should be given to accused.
15. In view of the above said discussion and considering the overall/limited evidence and circumstances in totality of the case, this Court is of the considered view that chances of false implication of accused cannot be ruled out and the prosecution case is hollow and the prosecution has failed to connect the accused with the commission of present offence and the accused is definitely entitled to the benefit of doubt.
16. Hence, accused is acquitted of the charges framed against him. Bail bonds State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 13 / 14 and surety bonds of accused stand cancelled. Superdarinama furnished, if any, stands cancelled. File be consigned to the record room, after due compliance.
17. Ordered accordingly.
Pronounced in open court on 22.10.2013.
This judgment consists of 14 number of pages.
(Puneet Pahwa)
MM02 (Traffic)/PHC/NDD
22.10.2013
State Vs. Md. Rashid U/s. 66(1)/ 192A M.V. Act. 14 / 14