Delhi District Court
Court Of India In The Case Tilted As ... vs . State 1999Crlj on 31 May, 2014
IN THE COURT OF MS. BABITA PUNIYA, MM (TRAFFIC),
EAST, KARKARDOOMA COURTS, DELHI
Challan No. 1030-00568-01
Challan Date: 04.05.2014
Vehicle No. DL-2W-3829
State ..................... Complainant
Versus
Mohd Muzahid
S/o Sh. Noor Mohd,
R/o H. No. 20/9, 27 Block,
Trilok Puri, Delhi ........................ Accused
Offence complained of u/sec 184, 3/181, 6 & 7 DMVR/177 &
RRR 32/177, 56/192, 66(1)/192A, 99.1 DMVR/177,
146/196A & 130/177 of the Motor Vehicles Act, 1988
Plea of the Accused : Accused
pleaded
not guilty
Date of institution of the Case : 05.05.2014
Date on which arguments heard : 31.05.2014
Date on which order was reserved : Not reserved
Date of decision : 31.05.2014
Final Order : Convicted
JUDGMENT:-
1. Case of the prosecution, as per Challan, is that the driver namely Mohd Muzahid was found driving the Gramin Sewa vehicle bearing no. DL-2W-3829 dangerously without wearing the uniform and could not produce the Registration, Fitness, Insurance Certificate, Driving Licence, Permit, Pollution under Control Certificate and PSV Badge on the spot. Therefore, he Challan No. 1030-00568-01 1-14 was challaned under sec. 184, 3/181, RRR 32/177, 56/192, 39/192, 146/196, DMVR 6, 7 & 99.1 punishable u/sec 177 and 130/177 of the Motor Vehicles Act, 1989 (herein after referred to as the Act). The vehicle was also impounded u/sec 207 of the Act. Thereafter, the Challan was presented before the court.
2. Consequent to the filing of Challan, cognizance of the offence was taken vide order dated 05/05/2014 and the accused was admitted to bail as the offences were bailable one.
3. On 05/05/2014, 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 bring home the guilt of the accused, prosecution has examined only two witnesses namely TI Ajab Singh as PW1 and Ct. Sandeep as PW2. PW1/TI Ajab Singh had proved the Challan and OSS Form as Ex. PW-1/A and Ex. PW1/A-2.
5. PW1/TI Ajab Singh in his examination-in-chief, inter-alia, stated that on 04.05.2014 at about 03:15 PM, he saw one Gramin Sewa bearing No. DL-2W-3829 coming from the side of Old PS Pandav Nagar. The accused was driving the vehicle dangerously in zig-zag manner and he could not produce the documents of the vehicle. He further stated that 5/6 passengers were sitting in the vehicle and that he was not wearing the uniform. Therefore, Challan No. 1030-00568-01 2-14 he challaned the accused/driver as well as the registered owner and impounded the vehicle.
PW1 during his cross-examination has stated that he had not made any passenger as witness to the challan. He denied the suggestion that he did not make any passenger as witness to the challan as no passenger was sitting in the vehicle and that he was proceeding empty to the workshop for the purpose of repair. He further stated that he gave 10 minutes time to the accused to produce the documents of the vehicle. He stated that he did not know the full form of PSV Badge.
6. PW2/Ct. Sandeep deposed on the same lines as deposed by PW1/TI Ajab Singh.
PW2 during his cross-examination has deposed that 5/6 passengers were sitting in the vehicle but he had not counted the passengers. He also denied the suggestion that the TI had not made any passenger witness to the challan as the vehicle was empty.
7. After completion of the prosecution evidence, statement 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. In defence, he has stated that the vehicle was empty and he was going to the workshop for repairing work. The accused admitted that he could not produce driving licence and PSV Badge on the spot. However, he did not lead any defence evidence. Thereafter, the matter was posted for arguments.
Challan No. 1030-00568-01 3-14
8. I have heard the rival submissions and perused the records very carefully.
9. Ld. APP for the State has stated that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt.
10.Per contra, ld. Defence counsel has stated that no offence u/RRR 32 punishable u/s 177, 56/192, 66(1)/192A, DMVR 99.1 and 146/196 of the Act is made out against the accused/driver as all the documents were shown to the Challaning Officer on the spot. He further stated that even if, for the sake of arguments, it is presumed that the accused had failed to produce the documents on the spot still no offence is made out, as it is not mandatory to carry original documents with the vehicle. In support of his contention, he has taken this court through the provisions of sec. 130 of the Act and Rule 139 of Delhi Motor Vehicles Rules (herein after referred to as the Rules).
To this, ld. APP for State has contended that it is the bounden duty of a driver to produce immediately on demand Registration Certificate and other docu- ments of the vehicle as required by Rules of Road Regulations, 1989 (herein after referred to as RRR). He further contended that the provisions of Sec. 130 of the Act are not applicable as far as production of Registration Certificate is concerned.
11.In order to appreciate the rival submissions, it would be useful to refer to cer- tain provisions of the Act.
Challan No. 1030-00568-01 4-14
12. Sec. 130 of the Act deals with the duty to produce licence and certificate of registration on demand. It reads as under:-
130. Duty to produce licence and certificate of registration.
(1) The driver of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination.
(3) the owner of a motor vehicle (other than a vehicle registered under sec 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorized in this behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in sec. 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photocopies of the same, duly attested in person or send the same by registered post to the officer who demanded it.
(4) If the licence referred to in sub-sec (2) or the certificates or permit referred to in sub-sec (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand.
Challan No. 1030-00568-01 5-14 Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.
Sec. 130(4) specifically says that the provisions of this section shall not apply to any person required to produce the Certificate of Registration or the Certificate of Fitness of a transport vehicle. However, the proviso appended to sec. 130(4) of the Act authorizes the Central Government to frame rules to such extent and with such modifications, as it may consider proper.
Further, sec. 137 of the Act confers power on the Central Government to make rules. It reads as under:-
137. Power of Central Government to make rules-The Central Government may make rules to provide for all or any of the following matters, namely:-
(a)--------;
(b) the manner in which the licences and certificates may be produced to the police officer under sec. 130.
13. Central Government has framed Central Motor Vehicles Rules, 1989 (herein after referred to as the Rules) and Rule 139 reads as under:-
Rule 139. Production of Licence and Certificate of Registration- The driver or a conductor of a motor vehicle shall produce Certificates of Registration, insurance, fitness and permit, the Challan No. 1030-00568-01 6-14 driving licence and any other relevant documents on demand by any police officer in uniform or any other officer authorized by the State Government in this behalf, and if any or all of the certificates are not in his possession, he shall produce in person an extract or extracts of the documents duly attested by any police officer or by any other officer or send it to the officer who demanded the documents by registered post within 15 days from the date of demand.
14.A simple reading of Rule 139 of the Rules would show that all the documents viz. Certificate of Registration, Permit, Fitness and Insurance Certificate men- tioned in Sec. 130 of the Act, which were otherwise made necessary to be pro- duced on demand, are permitted to be produced, if not in immediate posses- sion, within fifteen days from the date of demand in the manner prescribed in Rule 139. In other words, in view of Rule 139, it is not mandatory for a driver or owner of a vehicle to immediately produce the documents on demand but the same can be submitted within the period and in the manner as prescribed by Rule 139 of the Rules.
15.Now I will deal with the contention of the ld. APP for State that the accused has been challaned for violation of Regulation 32 of RRR and not under sec. 130 of the Act. Since the controversy revolves around Regulation 32 of RRR, it is apt to extract Regulation 32, which reads as under:
32. Production of Document Challan No. 1030-00568-01 7-14 A person driving a vehicle-(i) shall always carry with him his driving licence; certificate of registration; certificate of taxation and certifi cate of insurance of the vehicle and in case of transport vehicle the permit and witness certificate also;
(ii) shall on demand by police officer in uniform or an officer of the Motor Vehicle Department in uniform or any other officer authorized by the Government, produce the documents for inspection.
16.No doubt, Regulation 32 of RRR provides that a person driving a vehicle shall always carry with him his certificate of registration and is bound to produce the same on demand by a police officer in uniform for inspection. The regula- tions were framed by the Central Government in exercise of power of sec. 118 of the Act. The Regulations being a piece of subordinate legislation can- not override aforesaid provision of the Act under which a driver is legally obliged to produce the Registration Certificate within the time stipulated in the aforesaid provisions of the Act and Rules. In other words, it is not being mandatory for the driver to carry with him the Registration Certificate while driving a motor vehicle and mere failure of the said driver to produce such certificates on demand does not amount to contravention of any of the provi- sions of the Act and, therefore, is not an offence. The driver can be so chal- laned if he fails to produce the same within the time stipulated under the pro- visions of the Act of sec. 130(4) of the Act or Rule 139 of the Rules.
17.As far as allegation of non-production of Pollution under Control Certificate is concerned, it is stated by the ld. Counsel for the accused that Pollution Challan No. 1030-00568-01 8-14 Certificate is also not required to be produced on the spot and the same can also be produced later on. Per contra, it is contended by the ld. APP for State that it was incumbent upon the accused to have carried valid "Pollution under Control" Certificate while driving the vehicle on the road and sec. 130/177 of the Act is not applicable as far as PUCC is concerned. He further contended that as the accused was not found carrying valid "Pollution under Control"
Certificate, he was rightly challaned by the Challaning Officer u/rule 99.1 punishable u/sec 177 of the Act.
18.Rule 2(l) of the Rules defines the expression "Pollution under Control Certificate" as a written document indicting that the level of pollution from the exhaust of motor vehicle is within the limits prescribed under the Central Motor Vehicles Rules, 1989;
Further, Rule 99 of the Rules mandates that every motor vehicle shall carry PUCC. It reads as under:-
1. Air Pollution by motor vehicles.-(1) Necessity of a Pollution Under Control Certificate.-(a) Every motor vehicle shall have to carry a valid "Pollution Under Control Certificate" issued by the Transport Department or by an pollution checking centre, duly authorized by the Commissioner to carry out pollution level checking from the exhaust of Motor Vehicles and for the tuning of the same if required.
19.Rule 99 makes it compulsory for every vehicle to carry a valid "Pollution under Control Certificate" issued by an agency authorized for this purpose by the State Government. Since, the accused has failed to show the PUUC on the Challan No. 1030-00568-01 9-14 spot, he was rightly prosecuted by the Challaning Officer u/DMVR 99.1 punishable u/sec 177 of the Act.
20.Be that as it may, the accused/driver has produced original PUCC, Permit, Insurance Certificate, Registration Certificate and Fitness Certificate before the Court. All these documents were valid on the date of challan, hence the accused is acquitted qua the offence u/sec 66(1)/192A, 146/196, RRR32/177 and 56/192 of the Act.
21.It is next argued by the ld. Defence counsel that false charges u/sec 184 and DMVR 7/177 of the Act have been foisted against the accused. He submitted that the no public person was examined to prove the allegations that the accused was ferrying five passengers and was driving the vehicle dangerously without wearing the uniform. He further submitted that both the prosecution witnesses were traffic Police Officials, who could conveniently level allegations against the accused without any shred of objective evidence.
22.Admittedly, Challan/Ex. PW1/A has not been testified by any independent witness. As per the prosecution witnesses, five passengers were sitting in the vehicle. It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public persons were not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in the absence of the independent public witness.
Challan No. 1030-00568-01 10-14
23.Reference may be made to the judgment passed by the Hon'ble Supreme Court of India in the case tilted as Sanspal Singh Vs. State 1999CrLJ wherein it was 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 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.
24.PW1/TI Azab Singh during his cross-examination by the ld. Defence counsel had stated that "five/six passengers were sitting in the vehicle. However, I had not made any passenger witness to the Challan. Vol. Witnesses refused to become witness to the challan". Perusal of Challaning Officer's testimony shows that he had not made any sincere efforts to join any public witness. The explanation given by the Challaning Officer during his cross-examination does not inspire confidence. The failure to do so by the Challaning Officer who is Traffic Inspector in the present case is suggestive of the fact that the explanation for non-joining the witnesses from the public is an afterthought and is not worthy of credence. Even otherwise, had there been any passenger present in the vehicle, the immediate action/reaction would have been to ask them to join the investigation and get their statement recorded. Failure on the part of prosecution to make sincere efforts to join independent public witnesses in the proceedings despite their availability creates reasonable doubt in the prosecution case.
25.All these facts taken together make the prosecution case highly doubtful as far as the allegations of driving the vehicle in dangerous manner without wearing Challan No. 1030-00568-01 11-14 the uniform are concerned and it would be unsafe to convict the accused on the testimony of police officials in the absence of independent corroboration whatsoever.
Admission of guilt by the accused during the statement recorded u/sec 313 CrPC
26.When the accused was being examined U/s 313 Cr.P.C, he admitted that he was not having the driving licence and PSV Badge. It is submitted by the Ld. Defence Counsel that the accused cannot be convicted merely 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 admissions made u/sec 313 Cr.P.C.
27.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 the trial. Sec 313 CrPC reads as under:-
313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court-
(a) may at any stage, without previously warning the accused, put such questions to 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:
Challan No. 1030-00568-01 12-14 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).
No oath shall be administered to the accused when he is examined under sub- section (1).
The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. 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.
28.Sub-section (4) to Section 313 provides that admissions and confessions made by an accused in the said statement 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 U.P. (2010) 7 SCC 759 and Ashok Kumar Vs. State of Haryana 2012 (12) SCC 55) .
29.In view of the above it is no more res integra that the statement made by the accused u/s 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.
Challan No. 1030-00568-01 13-14
30.It is the case of the prosecution that the accused was driving the vehicle without having the driving licence and PSV Badge. Therefore, 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. The accused has also failed to produce the valid driving licence and PSV Badge before the court.
31.Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has proved its case beyond reasonable doubt under DMVR 6 and 99.1 punishable u/sec 177 and sec. 3/181 of the Act against the accused. However, it has failed to prove the charge u/sec 66(1)/192A, 39/192, 56/192, 146/196, 184, 7DMVR/177 and RRR32/177 of the Act beyond reasonable doubt against the accused. The result is that the accused is entitled to the benefit of reasonable doubt and is hereby acquitted qua the charges u/sec 66(1)/192A, 39/192, 56/192, 146/196, 184, DMVR7/177 and RRR 32/177 of the Act. However, the accused is convicted under DMVR 6 & 99.1 punishable u/sec 177 and 3/181 of the Act.
32.Let the convict be heard on the quantum of sentence.
Announced in open (BABITA PUNIYA)
Court on 31.05.2014 MM (Traffic)/East/KKD
Delhi/31.05.2014
Challan No. 1030-00568-01 14-14