Delhi District Court
State vs . Devi Charan 1 Challan No.1055-00896-1 on 21 April, 2014
IN THE COURT OF MS. BABITA PUNIYA, MM (TRAFFIC),
EAST, KARKARDOOMA COURTS, DELHI
Challan No. 1055-00896-1
Challan Date: 20.03.2014
Vehicle No. DL-2W-2542
State ..................... Complainant
Versus
Devi Charan
S/o Sh. Kalla Singh
R/o H. No. 468, Block No. 4,
Gali No. 4, Prakash Nagar,
Khoda Colony, U.P. ........................ Accused
Offence complained of u/sec 66(1)/192A & Rule 7DMVR punishable u/sec 177
of the Motor Vehicles Act, 1988
Plea of the Accused : Accused pleaded
not guilty
Date of institution of the Case : 22.03.2014
Date on which arguments heard : 21.04.2014
Date on which order was reserved : Not reserved
Date of decision : 21.04.2014
Final Order : Convicted
JUDGMENT:-
1. Brief facts relevant for the disposal of present Challan are that the accused namely Devi Charan was the driver of a motor vehicle bearing registration number DL-2W-2542 classified as "Gramin Sewa" with a seating capacity of 6+1. It was alleged that on 20/03/2014, he was found carrying 16 passenger in the vehicle. He was also found to be not wearing his uniform at the time of incident. Therefore, he State Vs. Devi Charan 1 Challan No.1055-00896-1 was challaned for violation of conditions of permit u/sec 66(1)/192A and DMVR 7 punishable u/sec 177 of the Motor Vehicles Act, 1988 (herein after referred to as the Act) for not wearing the uniform. The vehicle was also impounded u/sec 207 of the Act.
2. Consequent to the filing of Challan, cognizance of the offence was taken vide order dated 22/03/2014 and the accused were admitted to bail as the offences were bailable one.
3. On 22/03/2014, notice u/s 251 Cr. P.C. was framed and read over and explained to the accused in vernacular, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused person, prosecution has examined only two witnesses namely Constable Arvind Kumar as PW1 and ZO/ASI Charan Singh as PW2. Challan was exhibited as Ex. PW2/A and OSS form was exhibited as Ex. PW2/B.
5. PW1/Ct. Arvind Kumar in his examination-in-chief had, inter-alia, stated that the accused was carrying 16 passengers whereas as per permit only 6+1 passengers are allowed.
PW1 during his cross-examination by the ld. Defence counsel had stated that the vehicle was impounded as the driver was carrying excess passengers. He denied the suggestion that six passengers were present in the vehicle. He further stated that the passengers were requested to become witness but they refused. He denied State Vs. Devi Charan 2 Challan No.1055-00896-1 the suggestion that the vehicle cannot be impounded for carrying excess passengers.
6. PW2/ASI Charan Singh in his examination-in-chief had stated that the accused was found carrying 16 passengers whereas 6+1 passenger is allowed. Accused was also not wearing the uniform. Therefore, he challaned the accused and impounded his vehicle.
PW2/Challaning Officer during his cross-examination by the ld. Defence counsel had stated that accused was carrying 16 passengers. He admitted that the permit was shown to him on the spot. He denied the suggestion that vehicle cannot be impounded for carrying excess passengers.
7. After completion of the prosecution evidence, statements of the accused was recorded u/s 313 Cr. P.C. to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication. However, he did not lead any defence evidence.
8. I have heard the rival submissions of the Ld. APP for State and the accused and perused the records very carefully.
9. It is argued by the ld. APP for State that the accused was carrying passengers in excess of the number allowed to be carried under the permit issued by the State Transport Authority. He further submitted that the number of passengers that a particular Public Service Vehicle is authorized to carry is State Vs. Devi Charan 3 Challan No.1055-00896-1 mentioned in the Permit and carrying of passengers in excess of such seating capacity is a violation of the conditions of the permit.
10. Ld. Defence counsel refuting the allegations has stated that a false case has been foisted against him. He asserted that the Challaning Officer had not examined any independent witness even though such witnesses were available. He further stated that both the prosecution witnesses were traffic police officials, who could conveniently level allegations against the accused, without any shred of objective evidence, therefore, their evidence cannot be relied upon in the absence of independent corroboration.
11. Ld. Defence counsel, relying on the judgment passed by the Hon'ble Supreme Court of India in State of Maharashtra & Ors Vs. Nanded-Prabhani Z.L.B.M.V AIR 2000 SC 725= 2000(1)CTC502, has contended that even if it is presumed that the accused was carrying 16 passengers in violation of permit conditions yet it does not authorize the Challaning Officer to impound his vehicle u/sec 207 of the Act and prays to declare the detention and seizure of his vehicle u/sec 207 of the Act to be un-authorized and illegal and to award compensation. He has also moved an application seeking compensation/damages for unauthorized and illegal detention of his vehicle.
12. Before adverting to rival submissions, it would be advantageous to refer to certain judgments of the Hon'ble Supreme Court of India as well as of the Hon'ble High Courts.
State Vs. Devi Charan 4 Challan No.1055-00896-1
13. The Hon'ble Supreme Court in the case of Girja Prasad (Dead) by Lrs Vs. State of M. P. 2007(7) SCC 625 while particularly referring to the evidence of a police officer, held that "..it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
14. In Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Court held as under:
" ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence.............. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness State Vs. Devi Charan 5 Challan No.1055-00896-1 of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
15. In Shamin @ Bhura vs The State of Delhi Crl. Appeal No. 324/2011 the Hon'ble Delhi High Court held that "It is no doubt correct that there were no independent witnesses to substantiate the prosecution case, but this cannot be made the sole ground for throwing out the entire prosecution case. It is experienced that there is not only general apathy and attitude of indifference and reluctance of general public in joining the police, there is equal amount of insensitivity as well. Neither the Police nor the public could be said to be solely responsible for this state of affairs. The public does not want to be dragged in police and criminal cases and want to avoid them because of long drawn trials and unnecessary harassment. The Courts cannot be oblivious of this general state of affairs. Further, in a case where the statements of Police officials inspire confidence and are corroborated by material evidence, then there is no reason to doubt their testimony only on the ground that they are Police officials."
16. The Hon'ble Supreme Court in Sanspal Singh vs. State of Delhi 1999 Cr. L.J. 19 held that "non-joining of public witnesses would not be fatal to the prosecution in the situation where there were no public witnesses available or State Vs. Devi Charan 6 Challan No.1055-00896-1 none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation."
17. Now, I will examine the case in hand on the touchstone of law laid down in the aforesaid decisions of Hon'ble Supreme Court and High Courts.
18. The Government of NCT of Delhi in the year 2010 launched a new para transit scheme wherein high capacity three/four wheeler vehicles were given permits to ply in the Rural areas, un-authorized, resettlement colonies and J.J. Clusters of Delhi.
19. State Transport Authority in order to avoid congestion on roads, over- lapping of routes of different transport vehicles, discomfort to commuters etc. granted different routes to Gramin Sewa vehicles. State Transport Authority has also issued certain permit conditions for Gramin Sewa Vehicles. One of the conditions of permit was that "passenger shall not be carried in excess of the registered seating capacity of the vehicle i.e. 6(six) passengers excluding the driver."
20. Both the prosecution witnesses in their examination-in-chief have supported and reiterated the version given in the Challan/Ex.PW1/A that the accused was carrying 16 passengers in the vehicle. Both the prosecution witnesses were cross- examined by the ld. Defence counsel. The prosecution witnesses withstood cross- examination. The testimony of prosecution witnesses cannot be ignored merely on the ground that no public or independent witnesses were joined. It is settled State Vs. Devi Charan 7 Challan No.1055-00896-1 principle of law that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds.
21. It is noteworthy that during the course of the cross-examination of the prosecution witnesses the defence did not even give any suggestion as to why they were falsely deposing against the accused. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely Challan the accused. Moreover, both the prosecution witnesses during their cross- examination had stated that passengers were requested to become witness to the Challan but they refused. Relevant portion of cross-examination of PW1 & PW2/Challaning Officer is reproduced below "Passengers were requested to become witness but they refused." Though there is no independent witness to testify the Challan, however, perusal of prosecution witnesses' testimony shows that passengers were requested by the Challaning Officer to join but they refused. The court cannot brush aside the fact that general public does not want to be dragged in courts unless they are affected or interested parties.
Therefore, the contention raised by the ld. Defence Counsel that on account of non examination of a public witness, the testimony of the prosecution witnesses who are traffic police personnel, should not be relied upon cannot be accepted. In my considered view, sole testimony of a witness is sufficient to convict a person, if it State Vs. Devi Charan 8 Challan No.1055-00896-1 is reliable, acceptable and trustworthy. The probity of a witness is verified by his consistent and true testimony. The witnesses herein are consistent as far as carrying passengers excess in number than allowed by permit is concerned. Both the prosecution witnesses have corroborated each other in material particular and inspire confidence that accused was carrying excess passengers in the vehicle. Therefore, there is no reason to reject the testimony of prosecution witnesses when there is no evidence to prove that they were inimical or had any motive to involve the accused in a false case.
Admission of guilt by the accused during the statement recorded u/sec 313 of the Code of Criminal Procedure, 1973
22. When the accused was being examined U/s 313 Cr.P.C, he admitted that he was not wearing the uniform. It is submitted by the ld. Defence counsel that the accused cannot be convicted on the basis of admissions made under Section 313 Cr.P.C.
Per contra, it is submitted by the ld. APP for State that accused can be convicted on the basis of admission made u/sec 313 Cr.P.C.
23. The very purpose of introducing Sec 313 in the scheme of criminal trial is to afford an opportunity to the accused personally and that too, without administering any oath to explain the circumstances appearing against him during trial.
Sec 313 Cr.P.C reads as under:
State Vs. Devi Charan 9 Challan No.1055-00896-1
313. Power to examine the accused -(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him, the court may at any stage, without previously warning the accused, put such questions o him as the court considers necessary;
(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when he is examined under sub-
section (1).
(3)The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4)The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Sub-sec (4) to Sec. 313 provides that admissions and confessions made by an accused can be given due weightage and considered along with other admissible evidence. There are catena of judicial pronouncements highlighting the usefulness of these statements and as to how it empowers the courts to take into consideration the answers given by the accused {Dharnidhar Vs. State of UP (2010) 7SCC 759 and Ashok Kumar Vs. State of Haryana (2012)12 SCC 55}.
State Vs. Devi Charan 10 Challan No.1055-00896-1
24. It is settled proposition of law that the statement made by the accused u/sec. 313 Cr.P.C. can be used by the court to the extent that it is in line with the case of the prosecution, however, the same cannot be the sole basis for convicting the accused.
25. It is the case of the prosecution that the accused was driving the offending vehicle without wearing his uniform. PW1/Challaning Officer in his examination- in- chief has supported his version recorded in Challan/Ex.PW2/A that the accused was not wearing the uniform. I am of the considered view that the statement of the accused recorded u/sec 313 Cr.P.C before this court not only corroborates the prosecution case but also falls in the line with the case of the prosecution.
26. Having regard to the above discussion, and taking into consideration the overall conspectus of the facts as emerging from the evidence on the record, this court is of the considered opinion that the prosecution has proved the case beyond the reasonable doubt against the accused Devi Charan. Hence, the accused/driver Devi Charan is convicted for the offence u/sec. 66(1)/192A and Rule 7 DMVR punishable u/sec 177 of the Act.
27. Now, I will decide the issue as to whether the detention and seizure of the vehicle on account of excess passengers being carried by the convict over and above what he was permitted under the permit issued by State Transport Authority, was unauthorized and illegal?
State Vs. Devi Charan 11 Challan No.1055-00896-1
28. Section 207 of the Act deals with the power of the police officer to detain and seize a motor vehicle. Section 207 of the Act reads as under:-
207. Power to detain vehicles used without certificate of registration permit, etc. (1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Sec. 3 or Sec. 4 or Sec. 39 or without the permit required by sub-sec. (1) of sec. 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle; Provided that where any such officer or the person has reason to believe that a motor vehicle has been or is being used in contravention of sec. 3 or sec. 4 or without the permit required by sub-sec. (1) of sec. 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgement in respect thereof.
From the reading of the above, it is clear that a motor vehicle can be impounded by any Police Officer who is authorized in that behalf by the State Government for contravention of the provisions of Sec. 3, 4, 39 or without permit as required by Sec. 66(1) of the Act. In addition, a motor vehicle can also be impounded if there is contravention of any condition of such permit relating to route on which or the area in which or the purpose for which the vehicle may be used. It is only in the above- mentioned cases that the police officer can detain and seize a motor vehicle under the Act.
State Vs. Devi Charan 12 Challan No.1055-00896-1 The Hon'ble Supreme Court of India in the case of Nanded-Prabhani's case (supra) held as under
"......condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorize the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle........But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted."
It may be pointed out that the said decision arose from the judgment of a Division Bench of Bombay High Court wherein the Hon'ble Bombay High Court held the detention and seizure of the bus on the ground of carrying excess passengers to be unauthorized and illegal and awarded compensation to the tune of Rs. 10,000/-. Their Lordships of the Hon'ble Supreme Court agreed with the judgment of the High Court and held that the High Court has rightly held the seizure to be unauthorized and consequently compensation awarded cannot be said to be without jurisdiction and appeal of the State of Maharashtra was dismissed. Operative part of the judgment is reproduced hereunder:-
".......we are unable to accede to the contention of the learned Counsel appearing for the State of Maharashtra, that carrying passengers beyond the number mentioned in Column 5, indicating the seating capacity, would be a violation of the conditions of permit relating to either the route or the area or the purpose for which the State Vs. Devi Charan 13 Challan No.1055-00896-1 permit is granted. In this view of the matter, we see no infirmity with the conclusion arrived at by the High Court in the impugned judgment and the detention of the vehicles has rightly been held to be unauthorized and consequently, the compensation awarded cannot be said to be without jurisdiction. This appeal, therefore, fails and is dismissed.....".
29. In view of the judgment of the Hon'ble Supreme Court, it is no more res- integra that carrying passengers beyond the number mentioned in the permit would not be a violation of the conditions of permit relating to either the route or the area or the purpose for which the permit is granted. There can be no doubt that carrying passengers in excess of the permissible limit amounts to contravention of the provisions of Sec. 66(1) of the Act justifying prosecution of the accused. However, such contravention does not authorize the Challaning Officer to detain and seize the vehicle u/sec 207 of the Act.
30. In view of the above discussion, this court has no hesitation in holding that detention and seizure of the vehicle in question by ASI Charan Singh was un- authorized and illegal. Earlier also on number of occasions, this court had put at notice, not only the DCP (Traffic) but all concerned authorities in the District, requiring them to show compliance to the judgment of the Hon'ble Supreme Court of India and this Court but the same were flouted with impunity. It is unfortunate that in spite of the numerous directions issued by this Court, such recalcitrant approach was being made Challaning Officer/ASI Charan Singh. The conduct of the Official clearly reflects his callousness and lack of will to obey the orders of State Vs. Devi Charan 14 Challan No.1055-00896-1 the Court/s. It is not a matter of inconsequential dereliction that could be condoned or ignored by this court. Hence, Issue show-cause notice u/sec 60/122 D. P. Act to the Challaning Officer, for 26.04.2014. Reply, if any, be filed on 26.04.2014.
31. Whether the convict is entitled for any compensation True, the vehicle in question is a commercial vehicle and every day's detention causes severe irreparable financial loss. However, after some arguments, Ld. Defence counsel seeks to withdraw his application seeking compensation with liberty to file a suit before appropriate forum. Heard. Allowed. Application is dismissed as withdrawn.
32. Let the convict be heard on the quantum of sentence.
Announced in the open (BABITA PUNIYA)
Court on 21.04.2014 MM (Traffic)/East/KKD/
Delhi/21.04.2014
State Vs. Devi Charan 15 Challan No.1055-00896-1