Delhi District Court
State vs Paras Ram on 8 June, 2011
IN THE COURT OF SH. MUNEESH GARG MM02 TRAFFIC
ROOM NO. 13 DWARKA COURTS, DELHI
Challan No.: 84546
Circle: MPC
U/s: 66(1)/192A & 184 M.V. Act.
State V/s Paras Ram
JUDGMENT
a. Sl. No. of the case : 12/10 b. Date of commission of offence: 23.11.2010 c. Date of institution of the case : 24.11.2010 d. Name & address of accused : Paras Ram S/o Babu Lal R/o T347, Gautam Puri, Seelam Pur, Shahdra, Delhi.
e. Offence complained of : 66(1)/192A & 184 of M.V. Act.
f. Plea of accused : Pleads Guilty g. Final order : Convicted h. Date of hearing final arguments and final adjourning the matter for order : 25.05.2011 i. The date of such order : 08.06.2011
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated the case of the prosecution is that on 23.11.2010 at about 02:45 p.m. at Mayapuri Road, accused Paras Ram was plying his vehicle, blue line bus bearing No. DL1PB-3473 in a dangerous and zig-zag manner, in a race with other bus No. DPAPB-3487 to pick passengers from next stand. Both the drivers overtook each other in this process and thereby committed an offence U/s 66(1)/192A & 184 of the Motor Vehicle Act,1988.Challan No. 84546 Pg No. 1/17
2. Vide order dated, 05.02.2011, accused was charged for offence u/s 66.1/192 (A) and 184 of the Motor Vehicle Act,1988 to which he pleaded not guilty and claimed trial.
3. Prosecution has examined two witnesses namely SI Raghuvir Singh (PW-1) who is the challaning officer and proved copy of challan Ex. PW-1/A and HC Ramveer Singh (PW-2).
4. In order to prove its case, prosecution relied upon the testimony of PW-1 SI Raghuvir Singh and PW-2 HC Ramveer Singh. PW-1 is a witness of formal nature. He made the challan Ex. PW-1/A on the basis of statement of HC Ramveer Singh.
This witness was cross-examined by the defence.
5. PW-2 HC Ramveer Singh deposed that on 23.11.2010, he was on mobile petrol duty at Mayapuri Circle. At about 02:30 P.M when he was present at Mayapuri Chowk and going towards Junk Market, at that time some public persons imformed him that two buses were running in competition to each other. PW-2 then started chasing the buses and got stopped both the buses. PW-2 further deposed that SI Raghuvir Singh came at spot who challaned drivers of both the buses. Both the accused were challaned by PW-1 Raghuvir Singh U/s 66.1/192A, 184 M.V. Act. The vehicle was impounded U/s 207 M.V. Act.
This witness was cross-examined by the defence.
Challan No. 84546 Pg No. 2/176. After the examination of the aforesaid witnesses, the PE was closed vide order dated 01.04.2011.
7. Thereafter, accused was examined U/s 313 Cr.P.C. on 20.04.2011. All the incriminating evidence was put to the accused wherein accused has denied the case of prosecution in toto and stated that he was wrongly challaned by the challaning officer. He stated that there is no negligence on his part.
8. I have heard the final arguments from both the sides and have perused the evidence on record led by prosecution carefully.
9. Ld. APP for the State argued that PW-1 SI Raghubir Singh and PW-2 HC Ramveer Singh have proved the prosecution case beyond reasonable doubt. Ld. APP for the State argued that PW-2 has successfully fixed the identity of the accused and proved the fact of dangerous driving and overtaking of bus No. DL1PB-3487 caused by the accused. Therefore, the guilt of the accused is established beyond the reasonable doubt. It is submitted by Ld. APP for the State that by virtue of evidence available on judicial file, accused is liable to be convicted for the offence punishable u/s 66.1/192A & 184 M.V. Act.
10. On the other hand, it is argued on behalf of the accused that he was falsely implicated in the present case and he is totally innocent. It is argued by the defence Counsel that accused have been wrongly challaned by the challaning official. Counsel for the accused submits Challan No. 84546 Pg No. 3/17 that, accused has stated in his statement that there is no negligence on his part.
11. In order to succeed in the present trial for the offence u/s 184 & 66.1/192A M.V. Act, the prosecution was required to prove beyond reasonable doubt that the accused was driving the vehicle dangerously and overtook other four wheel motorized vehicles i.e bus no. DL1PB-3487.
12. Firstly, in order to prove the fact whether the offending vehicle bus no. DL1PB3473 overtook the bus no. DL1PB 3487, prosecution relied upon the testimony of PW-2 HC Ramveer Singh. PW-2 deposed in his testimony that on 23.11.2010 at about 02.30 p.m. when he was on mobile duty, some public persons informed him that two buses were running in competition with each-other. He has further deposed that on receiving this information, he started chasing the buses and got stopped bus no. DL 1 PB3473 and DL1PB3487. The accused present in court was the driver of bus no. DL 1PB3473. In his cross- examination, PW2 stated that he saw the buses while running in competition with each other. There was a distance of about 100 -125 metres when he saw both the buses for the first time running in competition with each-other. PW2 categorically stated in his cross- examination that the bus no. DL1PB3473 overtook the bus no DL1PB3487.
13. Further, PW-1 deposed in his testimony that a call was received from PW-2, Head Constable Ramveer Singh regarding overtaking by Challan No. 84546 Pg No. 4/17 two buses to each other near Junk market. PW-1, SI Raghuvir Singh deposed in his testimony that Head Constable Ramveer Singh stated that the driver of both the vehicles were driving their buses in a dangerous way in competition with each-other. PW1 deposed that he interrogated both the drivers at the spot and even at that time both of the drivers were para-linked with each-other regarding the time of the buses. PW1 has further deposed that he challaned both the drivers vide challan Ex. PW1/A and the vehicle was impounded under section 207 of the Motor Vehicle Act. Form OSS was filled up and given to the accused.
14. It is contended by the Counsel on behalf of the accused that PW1 SI Raghuvir Singh has made the challan at the instance of PW2 Head Constable Ramveer Singh and he was not present at the spot. He has further contended that the challaning officer should be the eye witness while challaning the vehicle at the time of the offence. The submissions of the Counsel for accused do not have any merit as the presence of the challaning officer is not sine qua non for making the challan. PW1 Head Constable Ramveer Singh is the eye witness in the present case and the challan was made on his statement. In his cross-examination, PW-2 HC Ramveer Singh categorically stated that the bus no. DL1PB3473 overtook the bus no DL1PB3487. No suggestion was given to deny the fact of overtaking by the counsel for the accused.
Ld. Counsel for the accused has also contended that PW-1 cannot be a complainant as he is police official and his testimony cannot be relied upon. The contention of counsel for accused has no Challan No. 84546 Pg No. 5/17 merit. Complainant may be police official or someone else. Testimony of a witness cannot be discarded merely on the basis that he is a police official. It is an archaic notion that actions of the police officer should be approached with initial distrust (State vs. Sunil & Anr. (2001) 1 SCC 652). The presumption that a person act honestly applies so much in favour of a police officer as of other person and it is not judicial approach to distrust and suspect him without good grounds. Therefore, such an attitude can do neither credit to Magistracy nor good to the public. It can only run down the prestige of the police administration (A.R. Khimma vs. State AIR 1956 SC 217). In view of the above decisions of Hon'ble SC, the testimony of police official can be relied upon if it is otherwise not impeached and remain unrebutted.
Counsel for the accused contended that there is no public witness in the present case. PW-2 stated in his cross-examination that when the ZO came at the spot, some of the passengers were still present. However, no public person or the passenger was ready to be a witness on the challan. It is settled law that conviction can be based on the testimony of official witnesses and it is not necessary that in each and every case, public persons must be joined in investigations.
In the case of Appabhai vs. State of Gujrat AIR 1988 SC 696, it has been held as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground Challan No. 84546 Pg No. 6/17 alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
The other contention of the counsel for the accused is that PW-2 does not know the name of Dharm kanta which is mentioned by the challaning officer in his challan. PW-2 in his cross-examination stated that he does not remember the name of the Dharam kanta. This is a minor omission and does not affect the testimony of PW-2 which is otherwise not impeached and remain unrebutted.
It is the contention of the Ld. Counsel that PW-2 HC Ramveer Singh has stated that he has not seen where the other vehicle DL1PB-3487 has overtook bus no. DL1PB-3473 of the accused.
Challan No. 84546 Pg No. 7/17However, the challaning officer has made the challan against both the abovesaid vehicles. Therefore, the statement of PW-2 is not believable. It is pertinent to mention that, in his written submission, accused himself stated that the driver of other bus who was driving dangerously and overtook my bus, pleaded guilty. It is a matter of record that accused of vehicle no. DL1PV-3487 has pleaded guilty. Therefore, the contention of the Ld. counsel is not tenable.
Thus, it is clear from the testimony of PW-2, HC Ramveer Singh that accused was driving his bus in competition with other bus no. DL1PB3487 and overtook the other vehicle. The act of competition on the road during day time and the proved factum of overtaking by the accused is itself dangerous in nature.
15. Secondly, whether the vehicle can be impounded in violation of Supreme Court directions under the existing provision of Motor Vehicle Act, 1988? In the present case, offending vehicle was challaned and impounded under Section 207 Motor Vehicle Act, 1988 by PW-1 SI Raghuvir Singh. OSS Form was filled up and given to the accused. As per the provision of Section 207(1) M.V. Act :
"Any police officer or other person authorised 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 provision of section 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 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 Challan No. 84546 Pg No. 8/17 be taken any steps he may consider proper for the temporary safe custody of the vehicle.."
The State Government vide two notifications first, being Notification No. F.19 (512)/TPT/Sectt./2003/191 dated 08.07.2004 and second being notification no. F.19(512)/TPT/Sectt./2003/1119 dated 26.10.2005 made the relevant amendment in Rule 123 of DMVR, 1993, which provided the prescribed manner to seize and detain the vehicle U/S 207 of the M.V. Act. Vide notification F.19 (512)/TPT/Sectt./2003/191 dated 08.07.2004, Delhi Motor Vehicle (Second Amendment) Rules, 2004, were notified, whereby sub-rule 7,8,9 &10 have been added after Rule 123(6) of DMVR, 1993. The said sub-rule (7) which have been inserted by virtue of the DMVR, 2004 (Second Amendment) reads as under:
"Any police officer(s) or the person(s) appointed as officer(s) under Section 213 of the Act and specified as such in Rule 123, not below the rank of Asst. Sub-Inspector, shall have power, if they have reasons to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 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, to seize and detain the vehicle, and shall keep in safe custody of the nearest police station or police post or traffic police circle office or any other designated impounding pit of the Transport Department against a proper receipt to be given by him in Form O.S.S. to the owner or the person in charge of the vehicle from whose custody the vehicle was seized and detained."Challan No. 84546 Pg No. 9/17
The constitutional validity of these rules was upheld by the Hon'ble High Court Delhi in WP(C)6502/2008 of judgment dated 20.08.2009 in Arun Kumar vs. STA & Ors.
In the present case offending vehicle was challaned and impounded by the officer of the rank of Sub-Inspector i.e. PW-1 SI Raghuvir Singh and OSS Form was filled up and given to the accused. The bus was deposited in the pit of Mayapuri Circle for safe custody. Therefore, it can be said that the challaning officer has observed the prescribed procedure in stricto senso.
It is the contention of the counsel for the accused that the ACP/SDM was not present at the spot while making the challan of the offending vehicle for violation of SC direction. He has contended that as per directions given by Hon'ble Supreme Court in the case of M.C. Mehta vs. Union of India (1997) 8 SCC 770 directions can be enforced by the team headed by SDM.
I have gone through the aforesaid judgment and I have no hesitation in holding that Ld. Counsel has completely misread the judgment. In its order, the Hon'ble Apex Court in Paragraph 'A' has given directions to police and all other authorities entrusted with administration and enforcement of the Motor Vehicles Act and generally with the control of traffic shall ensure, inter-alia, that the transport vehicles are not permitted to overtake any other four-wheel motorised vehicle. In clause 'E' of paragraph 'A', it has been directed that any breach of the aforesaid directions by any person would, apart from entailing other legal consequences, be dealt with as contravention of the conditions, of the permit which could entail suspension/cancellation of the permit and impounding of the vehicle.
Challan No. 84546 Pg No. 10/17In clause (g) of Paragraph A, it has been directed that for the purpose of enforcing these directions, flying squads made up of inter- departmental team headed by an SDM shall be constituted and they shall exercise powers under Section 207 as well as Section 84 of the Motor Vehicle Act. The Government is directed to notify under Section 86(4) the officers of the rank of ACP or above so that these officers are also utilised for constituting the flying squads. Thus, in the first place, the directions are to be followed by the concerned police and traffic authorities and the role of the SDM is only of supervision. It does not mean that if a particular police official or traffic official who is fully competent to book a person for violation under M.V Act, notices a violation, he cannot book a person unless SDM is also present at the spot. Role of SDM is supervisory in nature and competent police and traffic police officials can certainly book an offender at the spot in case they notice any violation of directions of Hon'ble Supreme Court.
It is also clear from the lines of Para 3 of the judgment of Hon'ble Supreme Court in M.C. Mehta case (Supra) that in our opinion, the provisions of the Motor Vehicles Act, 1988, in addition to the provisions in the existing laws, for example, the Police Act to take the necessary steps to control and regulate road traffic and to suspend/cancel the registration or permit of a motor vehicle if it poses a threat or hazard to public safety. It need hardly be added that the claim of any right by an individual or even a few persons cannot override and must be subordinate to the larger public interest.
Question about the manpower to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public Challan No. 84546 Pg No. 11/17 place poses any danger to the public in any manner and effectiveness of the existing provisions of M.V. Act, 1988 were answered to the following effect through observations in Para 11 to 13 in M.C. Mehta case (supra) by the Hon'ble Supreme Court itself as under :
11. One of the aspects which was considered at length by us was the need to find some stringent and effective measure to at least bring to a halt the danger posed to the public by the continued use of a motor vehicle which is not roadworthy or was being used/driven dangerously. We find that Section 207 takes care of that situation by conferring power on any police officer or other person authorized in this behalf to seize and detain the vehicle if he has reason to believe that the same has been or is being used in contravention of the specified provisions so as to pose a serious threat to the public. The object of enacting such a provision clearly is that such a vehicle cannot be continued to ply once it is found that is poses danger to the public because, in addition to punishing the guilty person for the contraventions committed earlier, it is also important and necessary to prevent any further danger to the public by letting the vehicle continue to ply on a public place.
12. In our opinion, the existing Challan No. 84546 Pg No. 12/17 provisions in the Act alone are sufficient to clothe the members of the police force and the transport authorities with ample powers to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public place poses any danger to the public in any form.
The requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger the public, has to be ensured by the authorities and this is the aim of these provisions enacted in the Act. As earlier stated, we reach this conclusion even without reference to the general powers available to the police officers under the Police Act and the Code of Criminal Procedure.
13. It is also to be noted that to overcome the situation when the strength of the police force is not adequate in a given area and the utilisation of more men is required for strict enforcement of these salutary provisions, the law confers power of delegation of the authority to other persons. We are conscious of the fact that the inadequacy of personnel and other infrastructure may be a constraint which has impeded strict enforcement of these provisions so far. We have no doubt that after this clarification made by us in this order, the Challan No. 84546 Pg No. 13/17 authorities concerned would mobilize the needed support by delegation of these powers to other authorities/officers and if need be even to responsible members of the public so that the resource crunch or inadequacy of infrastructure is not an impediment in enforcement of the law and the directions given today to obtain the desired results.
The Hon'ble High Court of Delhi, speaking through, Hon'ble Mr. Justice Sanjay Kishan Kaul in the case of "V.K. Kapoor vs. S.T.A. & Anr" in Civil Writ Petition No. 4936 of 2001 decided on 09.12.2004, held that the Hon,ble Supreme Court has only intended that as a measure of streamlining the procedure the power in respect of the violation set out in the M.C. Mehta case (supra) conferred on the SDMs and the purport of the order was not that, only the SDM would be esercising powers in respect of the violation as enumerated in the order. It was held that the powers to the SDM were given only in addition to the power of the police and all others entrusted with the administration and enforcement of the M.V. Act.
While delivering the judgment in U.P State Road Transport vs. Asst. Commissioner of Police, Traffic Control (2009) 3 SCC 634 Hon'ble Supreme Court in paragraph 27 consider the fact of the directions issued in M.C. Mehta case (Supra) as follows:
Para 27."...... we may now consider the effect of the directions issued by this Court. Paragraph A of the directions has been issued upon the police and all other authorities Challan No. 84546 Pg No. 14/17 entrusted with the administration and enforcement of the Act and generally with the control of the traffic. The directions upon the authorities to ensure that the transport vehicles are not permitted to overtake any four wheels motorized vehicle was issued as in the view of this Court, the scheme of the Act necessarily implied an obligation to use vehicle in a manner which does not imperil public safety. Clause 'e' of the order must be construed in the light of the purpose and object for which the Act was enacted.
In Para 51 of W.P.(Crl.) 878 of 2007 of Court on Its Own Motion vs. State of NCT of Delhi & Ors. Judgment dated 03.03.2011 Hon'ble Delhi High Court observed that the mandate and spirit of M.C. Mehta (supra), which is also a judgment of the Supreme Court is precisely this :-
"3.In our opinion, the provisions of the Motor Vehicles Act, 1988, in addition to the provisions of the existing laws, for example, the Police Act and the code of criminal procedure, confer ample powers on the authorities to take the necessary steps to control and regulate road traffic and to suspend/cancel the registration or permit of a motor vehicle if it poses a threat or hazard to public safety. It need hardly be added that the claim of any right by an individual or even a few persons Challan No. 84546 Pg No. 15/17 cannot override and must be subordinate to the larger public interest and this is how all provisions conferring any individual right have to be construed."
Therefore, in view of the aforesaid discussion, the contention of the Ld. Counsel for accused is not tenable in the eyes of law and is devoid of any merit.
16. In view of the aforesaid discussion, the Court is of the considered view that the prosecution has established his case beyond reasonable doubt. Accordingly the accused is convicted under Section 166.1/192 A & 184 of M.V.Act.
Announced in the (Muneesh Garg)
open court on dated 08.06.2011 MM-02,Traffic Room No.13 ,
DWARKA Courts,
Delhi. 08.06.2011
Challan No. 84546 Pg No. 16/17
ORDER ON POINT OF SENTENCE
I have heard Ld. APP for the State and the convict Paras Ram on point of sentence. Convict submits that he is sole bread earner in the family.
Heard.
Considering the social economic condition of the convict and the fact that the convict has family to be looked after and he want to repent, convict is sentenced to pay a fine of Rs. 2,000/- U/s 66(1)/192A & Rs. 500/- U/s 184 M.V. Act.
Fine paid. Bail bonds stand cancelled. Surety stands discharged. Documents, if any be released.
Copy of the judgment be given dasti to the accused at free of cost.
File be consigned to record room. Document, if any, be released.
(Muneesh Garg) MM-02,Traffic Room No.13 , DWARKA Courts, Delhi.
08.06.2011 Challan No. 84546 Pg No. 17/17