Delhi District Court
Abhay Anand vs State on 6 September, 2017
-:1:- CR No : 440604/2016
Abhay Anand v. State
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE (PC ACT) (CBI)1
DISTRICT COURTS(SW) DWARKA: NEW DELHI
In the matter of :
Criminal Revision No.:440604/2016
ABHAY ANAND
s/o Late Shri Shashi Bhushan Ojha
R/o Flat No.G01, Ispatika Apartment,
Sector04, Dwarka, New Delhi.
......... Revisionist
VERSUS
STATE
.......Respondent
JU DGMENT
Criminal Revision No. 440604/2016
Date of Institution 28.11.2016
Reserved for orders on 04.09.2017
Judgment announced on 06.09.2017
JUDGMENT
1. This is a revision petition under section 397 of Cr.PC.
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Abhay Anand v. State
filed by the revisionist against the impugned order dated
17.10.2016 passed by Ld. MM06, SW, Dwarka Courts, New
Delhi whereby Ld. MM has been pleased to frame the notice
under section 251 Cr.PC for the offences punishable under
section 279 IPC and section 185 of the Motor Vehicle Act,
1988 (herein after called the MV Act) against the accused
Abhay Anand (revisionist herein). Briefly stated relevant facts
for the disposal of the revision are:
2. The revision petition arises out of the case FIR
No.943/2015 under section 279 IPC and sections 184/185 MV
Act registered at PS Dwarka North which was registered on the
basis of complaint dated 23.11.2015 of the complainant Shri
Narender Singh. In the complaint dated 23.11.2015,
complainant Shri Narender Singh stated that he plies taxi car
No. DL 1YE3799 and on 23.11.2015 at about 11.30 AM he
came to Sector 4, Dwarka to pick up passenger and he parked
his vehicle on the side of the road and was making enquiries
from the vegetable vendor regarding address and in the
meantime, a car No.DL9CAA1666 Toyta ETIOS being driven
in rash and negligent manner, hit his vehicle from behind on the
right side and after hitting his car, the offending vehicle lost
balance and turned turtle and the PCR Van also arrived at the
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Abhay Anand v. State
spot and driver of the offending vehicle, whose name was later
on known as Abhay Anand was taken out. The
accused(revisionist herein) was taken to the hospital by the
PCR Van and the accident has been caused by the rash and
negligent driving of the accused (revisionist herein).
3. On completion of investigation, police filed the charge
sheet for the offences punishable under section 279 IPC and
sections 184 & 185 MV Act against the accused (revisionist
herein). The accused was ordered to be summoned by the Ld.
Trial Court and vide order dated 17.10.2016, Ld. MM has been
pleased to frame the notice under section 251 Cr. PC for the
offences punishable under section 279 IPC and section 185 MV
Act against the accused (revisionist herein). Aggrieved by the
impugned order dated 17.10.2016 whereby notice for the
offences punishable under section 279 IPC and section 185 MV
Act was framed, the revisionist has filed the present revision
petition.
4. I have heard the Ld. Counsel for the revisionist and
Ld. Addl. PP for the State/respondent and perused the record.
5. The contention of the Ld. Counsel for the revisionist is
that there is no evidence on record to indicate that there was
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Abhay Anand v. State
alcohol in the blood of the revisionist beyond the permissible
limit and there is no evidence that the accused(revisionist
herein) was driving the vehicle in rash and negligent manner
and the offences under section 279 IPC and section 185 MV
Act are not attracted against the accused(revisionist herein).
6. Ld. Addl. PP for the State has contended that in his
complaint, the complainant Shri Narender Singh has
specifically stated that the accused(revisionist herein) was
driving the vehicle in rash and negligent manner and he was
apprehended by PCR Van. Ld. Addl. PP has further contended
that the MLC of the accused(revisionist herein) showed that he
was smelling of alcohol and notice for the offences punishable
under section 279 IPC and section 185 MV Act has been rightly
framed against the accused(revisionist herein).
7. In CBI v. K. Narayana Rao, CA No.1460 of 2012,
Hon'ble Supreme Court was pleased to hold:
12. While considering the very same
provisions i.e. framing of charge and discharge of
accused, again in Sajjan Kumar ( supra), this
Court held thus:
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Abhay Anand v. State
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima face case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the CR No:440604/2016 Page 5 of 16 D.O.O. : 06.09.2017
-:6:- CR No : 440604/2016 Abhay Anand v. State accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial CR No:440604/2016 Page 6 of 16 D.O.O. : 06.09.2017
-:7:- CR No : 440604/2016 Abhay Anand v. State will end in conviction or acquittal.
8. Vide impunged order dated 17.10.2016, Ld. Trial court has been pleased to frame Notice under section 251 Cr.PC for the offences under section 279 IPC and section 185 MV Act against the accused(revisionist herein).
9. The present case was registered against the accused(revisionist herein) on the complaint dated 23.11.2015 of Shri Narender Singh wherein he stated that that vehicle No. DL 9CAA1666 which was being driven in rash and negligent manner hit his car from behind and after hitting his car, the offending vehicle lost balance and turned turtle and the PCR Van also arrived at the spot and driver of the offending vehicle, whose name was later on known as Abhay Anand, was taken out from the offending vehicle and was taken to hospital.
10. Section 279 IPC reads as:
279. Rash Driving or riding on a public way. Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which CR No:440604/2016 Page 7 of 16 D.O.O. : 06.09.2017
-:8:- CR No : 440604/2016 Abhay Anand v. State may extend to six months, or with fine which may extend to one thousand rupees, or with both.
11. The complainant Shri Narender Singh has made specific allegations that the accused (revisionist herein) was driving the car bearing No.DL9CAA1666 in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
12. The contention of the Ld. Counsel for the accused (revisionist herein) is that section 185 MV Act is not attracted against the accused (revisionist herein) as quantity of the alcohol in the blood of the accused (revisionist herein) has not been determined.
13. Section 185 M V Act reads as:
185. Driving by a drunken person or by a person under the influence of drugs.Whoever, while driving, or attempting to drive, a motor vehicle,
(a) has, in his blood, alcohol exceeding 30mg. per 100 ml. of blood detected in a test by a breath analyser, or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over CR No:440604/2016 Page 8 of 16 D.O.O. : 06.09.2017
-:9:- CR No : 440604/2016 Abhay Anand v. State the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation. For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.
14. As per section 185 MV Act, 1988, the prosecution is required to prove that the quantity of alcohol in the blood of the accused was beyond the limit as prescribed in section 185 MV Act or that the accused was under influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
15. The contention of the Ld. Addl. PP for the State is that in the MLC of the accused(revisionist herein) prepared at CR No:440604/2016 Page 9 of 16 D.O.O. : 06.09.2017
-:10:- CR No : 440604/2016 Abhay Anand v. State Rockland Hospital, it is mentioned that the accused(revisionist herein) was smelling of alcohol.
16. Section 185 of the MV Act specifically provides that for prosecuting a person under the said section, the prosecution is required to prove that the alcohol content in the blood of the accused(revisionist herein) was more than 30 mg.per100 ml.
17. Section 203 of MV Act reads as :
203. Breath tests.- (1) A police officer in uniform or an officer of the Motor Vehicle Department as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185:
Provided that requirement for breath test shall be made (unless it is made) as soon as reasonably practicable after the commission of such offence. (2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was CR No:440604/2016 Page 10 of 16 D.O.O. : 06.09.2017
-:11:- CR No : 440604/2016 Abhay Anand v. State driving the motor vehicle at the time of the accident had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test-
(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) in the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer :
Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or object to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient. (3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under subsection (1) or subsection (2), that the device by means of which the test has CR No:440604/2016 Page 11 of 16 D.O.O. : 06.09.2017
-:12:- CR No : 440604/2016 Abhay Anand v. State been carried out indicates the presence of alcohol in the person's blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.
(4) If a person, required by a police officer under subsection (1) or subsection (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient. (5) A person arrested under this section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there. (6) The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence.
Explanation. For the purposes of this section ''breath test'', means a test for the purpose of obtaining an indication of the presence of alcohol in a person's blood carried out, on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government, by notification in the Official Gazette, CR No:440604/2016 Page 12 of 16 D.O.O. : 06.09.2017
-:13:- CR No : 440604/2016 Abhay Anand v. State for the purpose of such a test.
18. Section 204 of MV Act reads as :
204. Laboratory Test (1) A person who has been arrested under Section 203 may, while at a police station, be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,
(a) it appears to the police officer that the device, by mens of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or
(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not. (2) A person while at a hospital as an indoor CR No:440604/2016 Page 13 of 16 D.O.O. : 06.09.2017
-:14:- CR No : 440604/2016 Abhay Anand v. State patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test
(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or (b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood :
Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this subsection if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient. (3) the results of a laboratory test made in CR No:440604/2016 Page 14 of 16 D.O.O. : 06.09.2017
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Explanation. For the purposes of this section, "laboratory test" means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.
19. Section 205 of MV Act reads as :
205. Presumption of unfitness to drive. In any proceeding for an offence punishable under section 185 if it is proved that the accused, when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time.
20. The prosecution has not alleged that the accused (revisionist herein) was subjected to breath test by breath CR No:440604/2016 Page 15 of 16 D.O.O. : 06.09.2017
-:16:- CR No : 440604/2016 Abhay Anand v. State analyser or that the accused was subjected to laboratory test to determine the amount of alcohol in his blood. It is also not alleged by the prosecution that while the accused(revisionist herein) was in the custody of the police, he refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test. In the circumstances, the offence under section 185 MV Act is not attracted against the accused (revisionist herein).
21. In view of the above discussion, the part of the notice under section 251 Cr.PC whereby notice for offence punishable under section 185 MV Act was framed against the accused (revisionist herein) vide impugned order dated 17.10.2016 is set aside. However, the accused(revisionist herein) shall face the trial for the offence under section 279 IPC.
22. The Revision Petition stands disposed of accordingly. TCR be sent back to the Ld. Trial Court alongwith a copy of this judgment. Revision file be consigned to Record Room.
Announced in open Court (HARISH DUDANI) today i.e. on 06.09.2017 Special Judge,(PC Act)(CBI)1 District Courts(SW), Dwarka, New Delhi CR No:440604/2016 Page 16 of 16 D.O.O. : 06.09.2017