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2014 DIGILAW 1922 (RAJ)

Nitu Jain v. State of Rajasthan

2014-11-27

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant Miscellaneous Petition has been preferred by the accused petitioner Smt. Nitu Jain assailing the proceeding of the Criminal Case No. 245/2011 pending in the Court of the learned Additional Chief Judicial Magistrate, Sujangarh against her on the basis of a complaint filed by the S.H.O., P.S. Sujangarh for the offences under Sections 5/180, 39/192, and 66/192A of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act). 2. The petitioner operates a travel agency with her husband in the name and style of Jain Travels. Various buses owned by the petitioner are being operated in and outside Rajasthan. One of the petitioner's buses bearing registration No. RJ-19-PA-003 having an All India Tourist Permit was being plied on the route between Jodhpur to Pilani on 25.9.2010. Driver Laxman Singh S/o Devi Singh who was possessed of a valid licence for driving a heavy transport vehicle issued from the office of Licensing Authority, Jodhpur was engaged for driving the said bus. while the bus was returning from Pilani to Jodhpur, it was stopped by the Inspector of Police Mr. Rajesh Bishnoi being the S.H.O., Sujangarh. As per the petitioner's case, the S.H.O. assaulted the driver Laxman Singh and prepared a fraudulent and false checking memo mentioning that the registration certificate was not available in the vehicle and the driver was not possessed of a valid driving licence to drive the vehicle. 3. Copy of the checking memo prepared by the S.H.O. on 26.9.2010 was procured by the petitioner under the Right to Information Act and the same has been placed on record of the petition as Annexure-3. The checking memo bears a note that the R.C. and permit were taken possession of by the police. 4. The petitioner's driver Laxman filed a complaint in the Court of the Additional Chief Judicial Magistrate, Sujangarh on 5.10.2010 against the S.H.O. Rajesh Bishnoi and other police officers of Police Station, Sujangarh for the offences under Sections 323, 342, 427,167, 382/34 I.P.C. 5. The S.H.O. Sujangarh filed a complaint in the Court of Additional Chief Judicial Magistrate, Sujangarh on 12.10.2010 arraying Laxman Singh and the present petitioner as accused for the offences under Sections 5/180, 39/192, 66/192-A of the Motor Vehicles Act (hereinafter referred to as the Act). 6. The S.H.O. Sujangarh filed a complaint in the Court of Additional Chief Judicial Magistrate, Sujangarh on 12.10.2010 arraying Laxman Singh and the present petitioner as accused for the offences under Sections 5/180, 39/192, 66/192-A of the Motor Vehicles Act (hereinafter referred to as the Act). 6. Learned Magistrate proceeded to take cognizance of the complaint by order dated 12.10.2010 and summoned the petitioner bus owner and the driver Laxman Singh to stand trial for the offences under Sections 5/180, 39/192, 66/192 of the Motor Vehicles Act, 1988. The petitioner has approached this Court by way of the instant misc. petition assailing the validity and correctness of (the proceedings going on against her in the aforesaid complaint for the alleged violation of the above mentioned provisions of the MV Act. 7. Mr. Khileri, learned Counsel for the petitioner wehemently contended that the petitioner's prosecution in this case amounts to a gross abuse of the process of the Court. He drew the Court's attention to Annex. 7 the entry made in the Roznamcha by the S.H.O. after checking the bus and submitted that the entry bears a specific recital that while the officer was conducting inspection, the driver informed that he was not having the relevant documents but thereafter, when the memo was being prepared, he submitted the Registration Certificate and the permit which were seized. Learned Counsel submits that, as a matter of fact, the search and seizure proceedings conducted by Rajesh Bishnoi, S.H.O. in this case are ex-facie malafide. The S.H.O. and the other members of the police party demanded illegal gratification from the petitioner's driver Laxman Singh under the false pretext that he was not having any valid documents to ply the vehicle. The driver submitted all the documents and refused to pay bribe upon which he was assaulted. He filed a complaint against the SHO Rajesh Bishnoi and the other members of the police party in the Court of the Additional Chief Judicial Magistrate, Sujangarh on 5.10.2010 for the offences under Sections 323, 342, 427, 167, 382/34 of the I.P.C. The S.H.O. became apprehensive that action could be taken in the complaint filed against him and the other members of police party for attempted extortion and assault, on which the complaint in question was filed as counter blast. 8. 8. He submitted that the provisions of the Act itself are clear to the effect that whenever the driving licence or the Registration Certificate are demanded by the Concerned Officer, a reasonable opportunity has to be given to the concerned person to present such documents. As per him, the provisions of the Act do not require that the licence of the registration certificate should mandatorily be available with the driver whenever he is driving the vehicle. The documents are to be presented to the concerned officer upon demand. He submitted that the words "upon demand" carry a necessary implication that a reasonable opportunity has to be provided to the concerned to present the documents before the Authorised Officer within a specified time frame. Non production of the licence, registration certificate and permit immediately upon being demanded would not entail criminal liability if the documents are in existence and are produced before the concerned officer within reasonable time. He further submits that none of the offences for which the petitioner is being prosecuted are exfacie made out in this case even from the admitted allegations set out in the complaint. 9. As per him, Section 5 of the Act makes the owner or person in-charge of a motor vehicle responsible not to cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 of the Act to drive his/her vehicle. Section 4 is in relation to age limit of the person driving the vehicle which has no application to the present case. Section 3 makes it mandatory for the person driving a motor vehicle to hold an effective driving licence. Learned Counsel submitted that admittedly, the petitioner's driver Laxman Singh was holding a driving licence (Annex. 2) authorising him for driving a heavy transport vehicle. The licence was issued to him by the licencing authority at Jodhpur and was effective from 13.10.2008 to 12.10.2011. He took this Court through the inspection memo and submitted that the Inspecting Officer did not provide any opportunity whats over to the driver to submit the driving licence before him. 10. 2) authorising him for driving a heavy transport vehicle. The licence was issued to him by the licencing authority at Jodhpur and was effective from 13.10.2008 to 12.10.2011. He took this Court through the inspection memo and submitted that the Inspecting Officer did not provide any opportunity whats over to the driver to submit the driving licence before him. 10. Challenging the proceedings for the offence under Section 39/192 of the Act, the learned Counsel submitted that the provision requires that no person shall cause or permit the vehicle to be driven in any public place unless the vehicle is registered in accordance with the provisions of the Motor Vehicles Act. Learned Counsel again referred to the checking memo and submitted that the registration certificate of the petitioner's vehicle was concededly submitted to the seizure officer during course of the proceedings itself. Thus, the offence under Section 39/192 of the Act has no application in this case. Likewise, the offence under Section 66/192 of the Act provides that a transport vehicle is to be plied under a valid permit. Copy of a permit effective for the period 2.2.2008 to 1.2.2013 issued for the bus in question by the concerned Transport Authority has been placed on record. The same was available with the petitioner's driver and was offered to the seuzure officer. The seizure officer appended a note on the checking memo that the driver presented a permit which was seized. He thus urged that the offence under Section 66/192 is also not made out from the admitted allegations as set out in the complaint. 11. Thus, the learned Counsel vehemently contended that the proceedings of the complaint are malafide and exfacie none of the offences alleged in the complaint are made out so as to permit the petitioner's prosecution in this case. 12. Per contra learned Public Prosecutor has opposed the submissions advanced by the learned Counsel for the petitioner. 13. The S.H.O. Rajesh Bishnoi who was impleaded as a respondent by name and was issued notice of the petition has not put in appearance despite service of notice. It may be noted that specific allegations of malafide and high handed action have been attributed to the SHO Rajesh Bishnoi in the petition and remain unanswered and un-controverted. 14. Heard and considered the arguments advanced at the bar. Perused the material available on record. 15. For the. It may be noted that specific allegations of malafide and high handed action have been attributed to the SHO Rajesh Bishnoi in the petition and remain unanswered and un-controverted. 14. Heard and considered the arguments advanced at the bar. Perused the material available on record. 15. For the. sake of convenience, the material portions of the relevant provisions of the Motor Vehicles Act, i.e. Sections 3, 4, 5, 39, 66, 180, 192 and 192A of the Act which are germane for deciding the controversy involved in the instant misc. petition are reproduced hereunder "3. Necessity for driving licence. - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab hired for his own use or rented under any scheme made under sub-section (2) of Section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. 4. Age limit in connection with driving of motor vehicles.-(1) No person under the age of eighteen years shall drive a motor vehicle in any public place: *** *** *** 5. Responsibility of owners of motor vehicles for contravention of Sections 3 & 4. - No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle. 39. Necessity of Registration -No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner: Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. 66. 66. Necessity for permits.-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. *** *** *** 180. Allowing unauthorised persons to drive vehicles.-Whoever, being the owner or person in charge of a motor vehicle, causes or permits, any other person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. 192. Using vehicle without registration. - (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both: Provided that the Court may, for reasons to be recorded, impose a lesser punishment. *** *** *** 192A. Using vehicle without permit. *** *** *** 192A. Using vehicle without permit. - (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both : Provided that the Court may for reasons to be recorded, impose a lesser punishment. *** * * * *** 16. The relevant portion of the inspection/checking memo which is a significant document having a material bearing on the controversy arising in the instant misc. petition is reproduced hereunder. "(1) cjoDr pSfdax esa okgu R/C ugha gSA (2) cjoDr pSafdx okgu esa {kerk ls 13 vf/kd lokjh cSBk j[kh gSA (3) cjoDr pSafdx okgu pkyd ds ikl pkyd ykbZlsUl ugha gSA --------------- uksV%& R/C o ijehV dCtk iqfyl fy;k x;kA " 17. It is evident from the above noted portion of the memo that, whilst describing the violations under the Motor Vehicles Act, the officer did not mention that the vehicle was being plied without a valid permit. So far as the petitioner is concerned, two of the alleged violations are relevant; first that the registration certificate was not available in the bus and the second being that the driver was not having a valid licence for driving the bus. It is not in dispute that the vehicle was registered at Jodhpur and was being plied from Pilani to Jodhpur. While the inspection note was being prepared, the S.H.O. Rajesh Bishnoi cnadidly appended a note to the effect that the registration certificate and the permit were taken possession of by the police. Thus, the inspection/checking memo records two totally contradictory facts. Firstly, the officer mentioned that the R.C. was not available in the vehicle and immediately thereafter a note was appended that the R.C. and permit were taken possession of by the police. Thus, the inspection/checking memo records two totally contradictory facts. Firstly, the officer mentioned that the R.C. was not available in the vehicle and immediately thereafter a note was appended that the R.C. and permit were taken possession of by the police. It is evident that the noting made by the SHO regarding the Registration Certification not being available in the bus as recorded at the top of the inspection note is totally false and incorrect. If the R.C. was not available at the time of checking, it is beyond comprehension as to how the same was produced before the Police Officer by the driver and seized immediately thereafter. The inspection was conducted at 4.30 A.M. It is impossible to believe that the bus driver could manage to procure these documents from Jodhpur and present the same to the Police Officer even before the document was completed. 18. Significantly enough, while noting the violations of the Motor Vehicles Act in the inspection memo, the S.H.O. did not mention that the vehicle was being driven without a valid permit. Despite that, the complaint was also filed for the offence under Section 66/192 of the Act which speaks volumes about the high handed action of the S.H.O. Thus, ex-facie, accepting the allegations set out in the complaint and the accompanying documents to be true on the face value the bare necessary ingredients of the offences under Sections 39/192 and 66/192A are not made out. 19. Now, coming to the argument regarding the offence under Section 5/180 of the Motor Vehicles Act not being made out in the matter. Section 130 of the Motor Vehicles Act is relevant for deciding the argument advanced by the learned Counsel for the petitioner that a reasonable opportunity has to be provided to the concerned person to produce the licence and the certificate of registration before prosecution is launched. Sub-clause (1) of Section 130 of the Act is reproduced hereunder for the sake of convenience : "130. Sub-clause (1) of Section 130 of the Act is reproduced hereunder for the sake of convenience : "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 or 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 to 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. 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 as if 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 of the certificate of fitness of a transport vehicle." (emphasis supplied) 20. Sub-section (1) of Section 130 requires that the driver of a motor vehicle in any public place shall on demand by any Police Officer in uniform, produce his licence for examination. Sub-section (3) requires that the owner of the motor vehicle or in his absence the deliver 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, the certificate of fitness and the permit. If any, or all of the certificates or the permit are not in his possession, he shall within 15 days from the date of demand, submit photo copies of the same duly attested in person or send the same by registered post to the officer who demanded it Subsection (4) provides; that if the licence referred to in sub-section (2) or the certificate or permit referred to in sub-section (3) are not at the time in the possession of the person from whom demand is made, it shall be sufficient compliance of this section if such person produces the licence or certificates or permit within such period and in such manner as the Central Government may prescribe (before the Police Officer or authority making the demand). 21. 21. Thus, it is evident that Section 130 of the Act mandates that a reasonable opportunity has to be given to the driver, conductor, or owner of a vehicle to submit the relevant documents to the Authorised Officer/Police Officer and failure to produce the documents at the spot would not be culpable if such documents are produced before the officer within a reasonable time frame as may be prescribed by the Central Government under Section 130(4) of the Act. 22. In the case at hand the Police Officer neither demanded the licence from the driver nor did he provide a reasonable opportunity to him for producing the licence and the documents before him. 23. This Court is of the opinion that the opportunity of producing the documents to the officer who makes the demand as set out in sub-section (4) cannot be restricted to sub-sections (2) and (3) only. The same opportunity has to be extended to the demand of licence made by the Police Officer as well. There can be situations wherein, due to inadvertence or other unavoidable circumstances, the driver of the vehicle does not possess the licence with him and consequently the licence is not available on his person at the time of inspection. In such cases a reasonable opportunity has to be provided to produce the licence to the Police Officer of the authority making demand. Section 3 of the Act only requires that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle. Holding a licence and carrying it on ones person are two different compulsions. Once a person is duly granted a licence authorising him to drive a particular category of vehicle, he would be authorised to drive the same under all circumstances unless otherwise directed by the concerned authority or when there is a legal sanction not to do so. Section 3 of the Act does not require that the licence holder has to carry the licence at all times while driving the vehicle. Admittedly, Laxman Singh the petitioner's driver was having a valid licence issued to him by the licensing authority authorising him to drive a Heavy Transport Vehicle. Section 3 of the Act does not require that the licence holder has to carry the licence at all times while driving the vehicle. Admittedly, Laxman Singh the petitioner's driver was having a valid licence issued to him by the licensing authority authorising him to drive a Heavy Transport Vehicle. The case set up by the petitioner that the seizure officer with malafide intensions deliberately mentioned in the checking memo that the licence and Registration Certificate were not available with the driver in order to wreak vengeance is not without substance. 24. It is manifest from the record that despite availability of the registration certificate and the permit, the S.H.O. deliberately mentioned in the checking memo that the documents were not available with the driver. This is a material and a significant fact which goes miles to show that the S.H.O. acted in a handed fashion in this case and thereafter tried to justify his action by filing the frivolous complaint. 25. As has been noted above, the seizure memo bears a note that the R.C. and permit were taken possession of by the police. It is matter of surprise that when the R.C. was not available with the driver then how the same came to be seized. The checking memo does not bear a recital that the driver did not produce the licence despite demand. Yet the complaint was deliberately filed against the petitioner for the offences under Sections 5/180, 39/192, 66/192-A of the Motor Vehicles Act which are prima facie not made out even from the admitted facts available on record. 26. In this view of the matter, this Court has no hesitation in holding that the proceedings of the complaint filed in the Court of A.C.J.M., Sujangarh to the extent of petitioner apart from being malafide also amounts to a gross abuse of the process of the Court and deserve to be quashed. 27. Consequently, the misc. petition is allowed. The proceedings of Criminal Case No. 245/2011 pending in the Court of Additional Chief Judicial Magistrate, Sujangarh for the offences under Sections 5/180, 39/192, 66/192-A of the Motor Vehicles Act are hereby quashed qua the petitioner. 28. Stay application is disposed of. 29. Record be sent back forthwith.Petition allowed. *******