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2013 DIGILAW 1407 (RAJ)

Chetan Prakash v. State of Rajasthan

2013-08-02

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioner seeking quashing of the proceedings of the Cr. Case No. 432 of 2005 pending in the Court of learned Chief Judicial Magistrate, Mandal, District Bhilawara qua the petitioner and assailing the order dated 16.12.2005 whereby cognizance was taken against the petitioner for the offences under Sections 130 and 196 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short). 2. Succinctly stated the facts of the case are that after investigation of F.I.R. No. 194 of 2005 a charge-sheet was filed against the petitioner and one Sampat Raj in the Court of the learned Judicial Magistrate 1st Class, Mandal, District Bhilwara. 3. As per the allegations of the charge-sheet, the accused Sampat Raj while driving the car No. RJ-19-2C-4813 met with an accident with a motorcycle No. RJ-06-6M-1637 resulting into the death of a lady named Shamim. After registration of the case and during the course of the investigation, the police issued a notice under Section 133 of the Act to the registered owner of the car namely Shri Sudarshan Sharma. Shri Sudarshan Sharma replied to the notice mentioning that he had sold the vehicle to the petitioner and that a Form No. 29 was executed to this effect. The police placing reliance on the said reply given by Sudarshan Sharma and a copy of the Form No. 29 provided by him proceeded to implicate the petitioner as an accused in this case and filed a charge-sheet against him for the offences under Sections 196 and 130 of the Act. 4. Learned Magistrate took cognizance against the petitioner for the said offences by order dated 16.12.2005. The petitioner has now approached this Court by way of the instant misc. petition seeking quashing of the cognizance order as well as the proceedings going on against him before the trial Court. It may be mentioned here that earlier the petitioner challenged the order taking cognizance by way of a revision but the same was rejected on count of absence of the petitioner's counsel. 5. Shri K.S. Rathore learned counsel for the petitioner contends that ex facie the proceedings of the criminal case against the petitioner for the violation of the provisions of the Motor Vehicles Act are illegal and unjustified. 5. Shri K.S. Rathore learned counsel for the petitioner contends that ex facie the proceedings of the criminal case against the petitioner for the violation of the provisions of the Motor Vehicles Act are illegal and unjustified. He contends that Section 130 of the Act requires the driver of the motor vehicle to produce his licence for examination on demand by any Police Officer. He contended that admittedly the petitioner was not the driver of the vehicle when the accident took place and as such, the provisions of Section 130 of the Act cannot be applied to him. He further contended that Section 196 of the Act lays down a prohibition on the driving of an uninsured vehicle or driving of a vehicle in contravention to Section 146 of the Act. Learned counsel submitted that the permission to drive the vehicle could only have been given by the owner of the vehicle and in the event of a violation, the owner would be responsible for the same. On the strength of the definition of owner as provided in Section 2(30) of the Act learned counsel contended that owner means the person in whose name the vehicle stands registered. Learned counsel further referred to Section 50 of the Act and contended that the vehicle in question was not transferred to the petitioner's name in accordance with the said provision and therefore, the petitioner has wrongly been charge-sheeted in this case. Learned counsel placed reliance on the Hon'ble Division Bench decision of this Court in the case of Smt. Padmadevi & Ors. v. Gurbaksh Singh & Ors., reported in AIR 1973 (Raj.) 317 and urged that the Hon'ble Division Bench in the aforesaid case held that transfer of a motor vehicle is governed by the provisions of Motor Vehicles Act alone. Under the said Act, the owner of a vehicle can only be the person, whose name is registered in the books irrespective of the fact that the real ownership may be with somebody else. Learned counsel thus urged that the proceedings of the criminal case, which have been initiated against the petitioner in this case on the basis of an alleged transfer of the vehicle claimed by the owner without a formal transfer of its registration cannot be continued. 6. Learned Public Prosecutor on the other hand vehemently opposed the submissions advanced by the learned counsel for the petitioner. 6. Learned Public Prosecutor on the other hand vehemently opposed the submissions advanced by the learned counsel for the petitioner. He submitted that the photostat copy of the Form No. 29 as is available on the record clearly shows that Sudarshan Sharma had already signed the documents for transferring the vehicle to the petitioner and as such, the petitioner was rightly charge-sheeted for both the offences. He thus urged that the proceedings of the criminal case pending against the petitioner in the trial Court should not be interfered with. 7. Heard and considered the arguments advanced at the bar and perused the record. 8. The relevant provisions of law for the violation whereof the petitioner has been charge-sheeted are Sections 130 and 196 of the Motor Vehicles Act. Both the provisions are reproduced herein-below: "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: Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgement issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand. (2) The conductor, if any, of a motor vehicle on any public place shall, on demand by any officer of the Motor Vehicles Department authorised in this behalf, produce the licence for examination. (3) The owner of a motor vehicle (other than a vehicle registered under Section 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 authorised 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 Section 56 and the permit; and if any or all of the certificates of the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post the officer who demanded it. Explanation.-For the purposes of this sub-section, "certificate of insurance" means the certificate issued under sub-section (3) of Section 147. (4) If the licence referred to in sub-section (2) or the certificates or permit referred to in sub-section (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: 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." "196. Driving uninsured vehicle.-Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both." 9. Section 2(30) of the Act defines the owner of a motor vehicle. Section 2(30) of the Act is also reproduced herein-below: "2(30). "Owner'' means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement." 10. The relevant clause of Section 130 of the Act would be clause (1) for the purposes of the case at hand. The said provision would on the face of it, applies to the driver of the vehicle if, he fails to produce his driving licence on demand by the police officer concerned. As the vehicle was admittedly being driven by Sampat the co-accused, this clause would only apply to him. 11. Clause (3) has no application in this case as there is no allegation that the registering authority demanded the certificates mentioned in the clause from the petitioner and he failed to do so. Thus, prima facie, the petitioner has no nexus with the violation of Section 130 of the Act in this case. 12. 11. Clause (3) has no application in this case as there is no allegation that the registering authority demanded the certificates mentioned in the clause from the petitioner and he failed to do so. Thus, prima facie, the petitioner has no nexus with the violation of Section 130 of the Act in this case. 12. Section 196 of the Act deals with the cases, where a person drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 of the Act. Obviously, the said provision could apply to the driver of the vehicle or the owner thereof. 13. Section 50 of the Act provides the mode for the transfer of ownership of a motor vehicle registered under the Chapter. It reads as below: "50. Transfer of ownership .- (1) Where the ownership of any motor vehicle registered under this Chapter is transferred- (a) the transferor shall,- (i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and" 14. Section 50(1)(a)(i) of the Act applies to the present case. Admittedly, no steps to transfer the vehicle as provided in Section 50(1)(a)(i) of the Act were undertaken by the owner in this case. The photostat copy of the Form No. 29, which is available on record reveals that the same bears the signature of the seller but nowhere does the same bear the purchaser's signature or acknowledgement. Therefore, the necessary formalities as required under Section 50(1)(a)(i) for carrying out the transfer of ownership of the vehicle were not carried out in this case. Thus, ex facie, the petitioner not being the owner of the vehicle as per the definition provided in Section 2(3) cannot be prosecuted for having committed the offences under Sections 130 and 196 of the Act. Thus, ex facie, the petitioner not being the owner of the vehicle as per the definition provided in Section 2(3) cannot be prosecuted for having committed the offences under Sections 130 and 196 of the Act. As a matter of fact, there being no material on the record of the case to show that the vehicle in question was ever transferred to the petitioner's name, his prosecution in this case for violation of the provisions of Sections 130 and 196 of lire Act amounts to a gross abuse of the process of the Court. 15. Resultantly, the misc. petition succeeds and is hereby allowed. The proceedings of the Cr. Case No. 432/2005 going on against the petitioner in the Court of learned Chief Judicial Magistrate, Mandal, District Bhilwara for the offences under Sections 130 and 196 of the Act are hereby quashed. However the trial of the other accused shall continue.Stay petition is also disposed of.Record of the trial Court be sent back forthwith.Petition allowed. *******