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1977 DIGILAW 470 (MAD)

Untitled judgment

1977-10-27

R.PAUL

body1977
Order.-The revision petitioner has been convicted by the learned Judicial Second Class Magistrate, Arni of an offence punishable under rule 47-A(iv) of the Tamil Nadu Motor Vehicles Rules read with section 112 of the Motor Vehicles Act and under rule 162 read with section 112 of the Act and sentenced to pay a fine of Rs. 20 under each count, in default undergo simple imprisonment for one week under each count. The conviction to an offence under rule 162. read with section 112 of the Act and the sentences marked out for that offence have been confirmed by the Chief Judicial Magistrate of North Arcot at Vellore. 2. The charge against the accused was that on 5th February, 1975 at about 4.30 p.m. on the Arni-Vellore Road when the Sub-Inspector of Police stopped and checked the bus MDJ 4024, which the accused was driving, it was noticed that the permit and registration certificate were not available in the vehicle and further the accused was not in proper uniform. The prosecution examined P.W. 1 the Sub-Inspector of Police in support of the aforesaid accusation. The accused denied the offence but did not adduce any evidence on his side. 3. The question is whether the convictions of the revision petitioner are correct, inasmuch as there is no evidence that P.W. 1 the Sub-Inspector was in uniform when he checked the bus. Section 86 of the Motor Vehicles Act lays down that: “(1) The driver and the conductor, if any, of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination. (2) The owner of a motor vehicle or in his absence the driver or the other person in charge of the vehicle, shall on demand by a registering authority or any person authorised in this behalf by the State Government produce the certificate of registration of the vehicle and, where the vehicle is a transport vehicle, the certificate of fitness referred to in section 38. (3) If the licence or certificates, 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 within ten days at any police station in India which he specifies to the police officer or authority making the demand.” The proviso to that section says: “Provided that, except to such extent and with such modifications as maybe prescribed, the provisions of the sub-section shall not apply to a driver driving as a paid employee, or to the driver of a transport vehicle or to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.” Rule 162 of the Tamil Nadu Motor Vehicles Rules prescribes that the holder of a permit shall cause Part B thereof or the temporary permit, as the case may be, to be carried on the vehicle and it shall be produced by the driver for inspection on demand made at at:y reasonable time by any authorised person for rule 47-A states that the driver of a transport vehicle while on duty (i) shall, as far as may be reasonably possible having regard to his duties, be responsible for the due observance of the provisions of the Act and of those rules: and...... (iv) shall be cleanly dressed and in the manner in which the Transport Authority may specify. The evidence of P.W. 1, the Sub-Inspector is merely to the effect that he stepped the bus driven by the accused and checked it and the accused when asked for the permit and the registration certificate stated that the above records were not available and further the driver was not in uniform. It has not been stated by the Sub-Inspector what was the dress prescribed by the Transport Authority under rule 47-A. It is not P.W. 1’s case that the accused-driver was not cleanly dressed. Therefore the learned Chief Judicial Magistrate has set aside his conviction for an offence under rule 47 -A read with section 112 of the Motor Vehicles Act and acquitted the accused of that offence. 4. Therefore the learned Chief Judicial Magistrate has set aside his conviction for an offence under rule 47 -A read with section 112 of the Motor Vehicles Act and acquitted the accused of that offence. 4. Now, in regard to the allegation that the permit and registration certificate were not available in the bus, there is the evidence of P.W. 1 to that effect and P.W. 1 states that the accused when asked to produce them said they were not available. But, then, under sub-section (2) of section 86 of the Act it is only on demand by a person duly authorised in this behalf by the State Government that the driver or other person in charge of the vehicle is required to produce the certificate of registration and the certificate of fitness. Rule 1.62 also mentions that the demand shall be by any authorised person. In the absence of any evidence to show that P.W. 1 was in uniform and in the absence of any evidence to show that he was an authorised person, it cannot be said that the ingredients of an offence under section 86 (2) read with section 112 of the Motor Vehicles Act has been made out. When an offence is alleged against any person, it is for the prosecution to prove all the ingredients of the offence. In the instant case, one of the ingredients is that the demand should be by an authorised person and in the absence of any (evidence to show that P.W. 1 was an authorised person, it cannot be said that this important ingredient of an offence under section 86(2) of the Act read with rule 162 of the Rules and with section 112 of the Act has been made out. Hence I allow this revision petition and set aside the conviction of the revision petitioner of an offence under section 86 (2) of the Act read with rule 162 of the Rules and with section 112 of the Act and acquit him of that offence and the fine amount, if paid by him, may be refunded.