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2017 DIGILAW 636 (ORI)

Gobardhan Seth v. State of Orissa

2017-06-28

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The petitioner Gobardhan Seth has filed this application under section 482 Cr.P.C. to quash the entire proceeding in U.C. Case No.115 of 2002 arising out of Sonepur P.S. non-F.I.R. Case No.15 of 2002 pending in the Court of learned Sub-Divisional Judicial Magistrate, Sonepur in which basing on the prosecution report submitted by the officer in charge of Sonepur Police Station on dated 28.06.2002, cognizance of offences under sections 177 and 181 of the Motor Vehicles Act, 1988 (hereafter ‘1988 Act’) was taken. 2. According to the prosecution report, on 28.06.2002 at about 12.05 p.m. when the officer in charge of Sonepur Police Station checked the Hyundai Accent vehicle bearing registration No.OR-03-A-6888 plying from Bolangir side to Sonepur side at Arjunpur Chhak, being driven by the petitioner in presence of the witnesses, he found that the front light of the vehicle had not been blackened and the petitioner was not possessing the original driving licence. 3. Mr. Himanshu Sekhar Mishra, learned counsel appearing for the petitioner emphatically and in his inimitable style contended that on the relevant day when the petitioner was proceeding towards Bhubaneswar from Bolangir in the vehicle bearing registration No.OR-03-A-6888, it was stopped by some police officials including the officer in charge of Sonepur Police Station for checking inside the forest which falls in between to Bolangir to Sonepur. Learned counsel further contended that even though all the relevant documents were produced by the petitioner before the police officials but the petitioner was forcibly taken and produced before the learned S.D.J.M., Sonepur who was holding Mobile Court at the spot. The learned S.D.J.M. after perusing the prosecution report not only took cognizance of offences under sections 177 and 181 of 1988 Act but also asked the petitioner as to whether he pleads guilty or not and when the petitioner pleaded not guilty, the learned S.D.J.M. asked the petitioner to execute a P.R. bond and further told that unless P.R. bond is executed, he would be remanded to custody. When the petitioner expressed his helplessness to execute the P.R. bond due to its non-availability and requested the learned Magistrate to give him some time, he was directed by the learned Magistrate to appear before him in the Court on 02.07.2002 and accordingly on the date fixed, the petitioner appeared and was released after executing P.R. bond and the prosecution report was also supplied to him. The learned counsel further submitted that the allegations made in the prosecution report regarding non-blackening of the front light of the vehicle and non-availability of original driving licence with the petitioner are false and fabricated. It is contended that on the very day after about two hours, the very same vehicle was checked by the ASI of Boudh Police Station who did not notice any such defect as pointed out in the prosecution report filed by the officer in charge, Sonepur Police Station, on the other hand the prosecution report was submitted by the ASI of Boudh Police Station indicating therein that there was no bulb, horn and no pollution certificate of the vehicle and a prayer was made for prosecuting the petitioner under sections 177 and 190(2) of the 1988 Act in connection with Boudh P.S. non-F.I.R. Case No.54 of 2002. It is further contended by the learned counsel for the petitioner that no time was given to the petitioner to produce the original driving licence and the learned Magistrate mechanically accepted the prosecution report and asked the petitioner to execute the P.R. bond. It is contended by the learned counsel for the petitioner that when the allegation against the petitioner was for commission of non-cognizable offences, he should not have been forcibly detained by the police officials and produced before the learned S.D.J.M., Sonepur. It is further contended that the holding of the Mobile Court inside the jungle is unconstitutional and submission of prosecution report is thoroughly misconceived, illegal and gross abuse of process of the Court. 4. As per the order dated 10.08.2016 of this Court, the Additional Commissioner Transport (Tech.), State Transport Authority, Odisha filed an affidavit wherein he referred to different provisions of the 1988 Act and the Central Motor Vehicles Rules, 1989 (hereafter ‘1989 Rules’). 4. As per the order dated 10.08.2016 of this Court, the Additional Commissioner Transport (Tech.), State Transport Authority, Odisha filed an affidavit wherein he referred to different provisions of the 1988 Act and the Central Motor Vehicles Rules, 1989 (hereafter ‘1989 Rules’). Similarly the Additional Secretary to Government of Odisha, Home Department filed an affidavit in pursuance of the order dated 10.08.2016 regarding holding of Mobile Court for detecting different offences and functioning of such Courts. In pursuance of the direction dated 05.12.2016 of this Court, the Additional Commissioner Transport (Tech.), State Transport Authority, Odisha filed another affidavit indicating therein that under the Motor Vehicles Act, there is no provision for holding Mobile Courts and no circular has been issued by the Transport Department basing on which the Mobile Courts are being held in the State and that no Mobile Court is held on the request and/or requisition of Transport Department in relation to the detection of offences. 5. Mr. Bigyan Kumar Sharma, learned Standing Counsel for Transport Department and Mr. Deepak Kumar, learned Addl. Standing Counsel for the State of Odisha contended that there is no illegality in the submission of the prosecution report by the officer in charge of Sonepur Police Station against the petitioner and therefore, the application should be dismissed. 6. Section 482 of Cr.P.C. which saves the inherent power of the High Court can be exercised to prevent abuse of process of Court or otherwise to secure the ends of justice. The inherent jurisdiction has to be exercised sparingly and with caution and to do real and substantial justice which would depend upon the facts and circumstances of each case. It is also the settled principle of law that when the criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused or the allegations made against the accused do not constitute an offence alleged or there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, the prosecution report can be quashed. 7. 7. In the present case, the prosecution report was submitted for the commission of the offences under sections 177 and 181 of the 1988 Act on the ground that the front light of the vehicle had not been blackened and the petitioner who was driving the vehicle did not possess the original driving licence at the relevant point of time. Section 177 of the 1988 Act deals with general provision for punishment of offences and it is stated that whoever contravenes any provision of the Act or of any rule, regulation or notification made under the Act shall be punished with different sentences. Section 181 of the 1988 Act prescribes punishment for driving the motor vehicle in contravention of section 3 or section 4 of the 1988 Act. Section 3 of the 1988 Act deals with necessity for driving licence and it further states, inter alia, that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Section 4 of the 1988 Act deals with age limit in connection with driving of motor vehicles. Section 130 of the 1988 Act states 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. The proviso to section 130 of the 1988 Act prescribes that if the driving licence is not in possession of the person to whom the demand is made and has been submitted to, or has been seized by, any officer or authority under the 1988 Act or any other Act, the driver shall produce a receipt or other acknowledgement issued by such officer or authority in lieu of the driving licence and thereafter produce the licence before the police officer making the demand within such period, in such manner as the Central Government may prescribe. Section 158 of the 1988 Act prescribes that any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in that behalf, produce, inter alia, the driving licence relating to the use of the vehicle. Section 158 of the 1988 Act prescribes that any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in that behalf, produce, inter alia, the driving licence relating to the use of the vehicle. A valid driving licence is not only a symbol of identity of the driver but also ensures that the driver is trained well to drive the vehicle in the public place which safeguards the fundamental right of the commuters and passers-bye guaranteed under Article 19(1)(d) of the Constitution of India to move freely and use the roads without any impediment. A person having a valid driving licence is supposed to be aware of the traffic rules and regulations and he can legally operate a motor vehicle on the road. Ordinarily the driver has to keep the original of the driving licence with him while driving the vehicle. If one is not in possession of the original driving licence with him for the reason mentioned in the proviso to section 130 of the 1988 Act and produces the required document at that stage as mentioned in the said proviso then the officer making demand has to grant time to the driver concerned to produce it afterwards in such manner as the Central Government may prescribe. If a driver produces an attested true copy of the driving licence by a gazetted officer on demand by the police officer in uniform and undertakes in writing to produce the original driving licence within a stipulated period, submission of prosecution report immediately against the driver without giving him an opportunity to produce the same and seizing the vehicle or imposing penalty instantly would not be proper and justified. Certainly if the driver fails to produce the original driving licence for verification within the stipulated time as allowed by the demanding officer as per the undertaking given by the driver, action can be taken against him in accordance with law. Plea of forgetfulness of having the original driving licence or its attested true copy by a gazetted officer with him, at the time of demand by an authorised police officer in uniform cannot be an excuse. Before sitting on the driver’s seat of a motor vehicle and driving it in any public place, one should be sure that he possesses a valid driving licence. Before sitting on the driver’s seat of a motor vehicle and driving it in any public place, one should be sure that he possesses a valid driving licence. On perusal of the prosecution report submitted by the officer in charge, though it is mentioned that the driver of the vehicle had no original driving licence at the time of checking but there is nothing to indicate that any time was allowed to the petitioner who was driving the vehicle to produce the original driving licence. When the statute provides for grant of time for production of driving licence before the police officer making the demand in certain contingencies, the submission of prosecution report on the very day without giving such opportunity to the petitioner was not proper and justified. A person driving a motor vehicle in a public place may not possess the original driving licence all the time for various reasons and therefore, it is provided under section 130 of the 1988 Act to grant time to the concerned party to produce the driving licence within specified time. Rule 139 of the 1989 Rules provides, inter alia, that the driver of a motor vehicle shall produce the driving licence or any other relevant documents on demand by any police officer in uniform and if any or all of the documents 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 and send it to the officer who demanded the documents by registered post within fifteen days from the date of demand. The conjoint reading of section 130 of the 1988 Act and Rule 139 of the 1989 Rules make it very clear that without grant of time to the driver of a motor vehicle to produce the driving licence within the stipulated period, the prosecution report cannot be submitted on the very day of inspection on the ground that the driver has got no original driving licence with him. 8. So far as the other defect which has been pointed out in the prosecution report regarding non-blackening of the front light of the vehicle, as per the affidavit filed by the Addl. Commissioner (Tech), the blackening of the head light of the vehicle could be governed by Rule 106 of the 1989 Rules. 8. So far as the other defect which has been pointed out in the prosecution report regarding non-blackening of the front light of the vehicle, as per the affidavit filed by the Addl. Commissioner (Tech), the blackening of the head light of the vehicle could be governed by Rule 106 of the 1989 Rules. At the relevant point of time, Rule 106 of the 1989 Rules read as follows:- “106. Deflection of lights.—(1) No lamp showing a light to the front shall be used on any motor vehicle including construction equipment vehicle (whether fitted with single or dual head lamp) unless such lamp is so constructed, fitted and maintained that the beam of light emitted therefrom— (2) Is permanently deflected downwards to such an extent that it is not capable of dazzling any person whose eye position is,— (A) At a distance of 8 metres from the front of lamp, (B) At a distance of 0.5 metre to the right side of the lamps, i.e., fitted at right extreme of the vehicle, from the right edge of the lamp, (C) At a height of 1.5 metres from the supporting plane of the vehicle: (a) xxxxxx (b) Is capable of being deflected downwards by the driver in such manner as to render it incapable of dazzling any such person in the circumstances aforesaid; (c) Is capable of being extinguished by the operation of a device which at the same time causes a beam of light to be emitted from the lamp which complies with the provision of clause (a); (d) Is capable of being extinguished by the operation of a device which at the same time either deflects the beam of light from another lamp downwards or both downwards and to the left in such manner as to render it incapable of dazzling any person in the circumstances aforesaid, or brings into or leaves in operation a lamp which complies with the provisions of clause (a). (2) The provisions of sub-rule (1) shall not apply to any lamp fitted with an electric bulb, if the power of the bulb does not exceed 7 watts and the lamp is fitted with a frosted glass or other material which has the effect of diffusing the light.” There is nothing in Rule 106 that non-blackening of the front light of the vehicle would ipso facto attract the violation. The prosecution report should have been specific regarding violation of any of the sub-rules of Rule 106 keeping the provision in view. In view of the above infirmities, the submission of the prosecution report by the officer in charge of Sonepur Police Station under sections 177 and 181 of the Motor Vehicles Act, 1988 against the petitioner is not proper and justified and therefore, liable to be set aside. 9. Coming to the contentions raised by the learned counsel for the petitioner regarding holding of Mobile Court, it is mentioned in Chapter XI, Rule 73 of General Rules and Circular Orders (hereafter ‘GRCO’) (Criminal), Vol-I that the Judicial Magistrates who have power to take cognizance should comply with the requisitions for holding Mobile Courts which should always be subject to their previous engagement in the Court. Rule 74 states that the Judicial Magistrate should dissociate themselves from investigation or detection of offences by the Police and Excise Officers. In case of K.N. Sarkar -Vrs.-The State reported in Vol.33 (1967) Cuttack Law Times 1158, it is held as follows:- “9. A word of caution is necessary for the mobile Magistrates. They generally move in the company of the prosecution party. They are not expected to be present at the time of search and seizure in which case they would themselves be witnesses. Trial in such cases is done outside the normal Court precincts and at distant places where the accused cannot expect assistance of counsel. Public might loss confidence in the administration of justice unless the Magistrate conducts himself impartially and sees that the accused does not make confessions or admissions under fear. It would be a sound exercise of judicial discretion for the mobile Magistrates to preserve the seized articles for examination by higher Courts.” In case of Gobardhan Mohapatra Vrs. State reported in Vol.49 (1980) Cuttack Law Times 98, it is held as follows:- “5.......The Magistrate trying cases in mobile Courts should observe at least the following norms: (1) He should dissociate himself from investigation or detection of offences by the police, excise officers or such other agencies. (2) He should not in any manner coerce or cajole the accused to plead guilty. (3) He should observe judicial decorum and propriety. (4) He should not try cases where imprisonment is compulsory and/or authorisation/sanction is necessary before cognizance can be taken. (2) He should not in any manner coerce or cajole the accused to plead guilty. (3) He should observe judicial decorum and propriety. (4) He should not try cases where imprisonment is compulsory and/or authorisation/sanction is necessary before cognizance can be taken. In such cases, the accused should be given all facilities for his defence and the case should not normally be tried in mobile Court. (5) Except under extraordinary situation, he should not try cases beyond Court hours and such trial should be confined to petty offences triable as summons cases. (6) The cases involving complicated questions of law which require careful and calm thinking, should not be disposed of then and there in a mobile Court without giving proper assistance to the accused for his defence.” In case of Bhagabat Chandra Sebak -Vrs.-State of Orissa reported in Vol.54 (1982) Cuttack Law Times 241, it is held as follows:- “3......Legal and proper accusations couched clearly should be made by the prosecuting agencies and not by hurriedly using short abbreviations without stating the particulars of the offences. Cases should be tried and disposed of by adopting the legal procedures, scrutinizing the accusations made in the prosecution reports and exercising due care while recording the statements of the accused persons. Every citizen, be he a multi-millionaire or a wage-earner like the petitioner, must get even-handed justice and is entitled to have a just and fair trial. Justice must not only be done; it must also appear to have been done. Magistrates presiding over mobile courts should conduct themselves in such a manner that the accused persons do not have an impression that separate norms are being adopted for hurried disposals while holding such courts, away from the places of sittings of courts, where rarely accused persons may have the advantage of being defended by the lawyers. It may be kept in mind that if the accusations do not legally constitute an offence, an admission of an accused person of such accusations cannot be the basis of an order of conviction. In the absence of legal proof of a crime, there can be no legal criminality.” In the affidavit filed by the Addl. It may be kept in mind that if the accusations do not legally constitute an offence, an admission of an accused person of such accusations cannot be the basis of an order of conviction. In the absence of legal proof of a crime, there can be no legal criminality.” In the affidavit filed by the Addl. Secretary, Government of Odisha, Home Department, it is mentioned that section 14(1) of Cr.P.C. confers power on the Chief Judicial Magistrate, from time to time, to define the local limits of the areas within which the Magistrates appointed under section 11 or section 13 may exercise all or any of the powers with which they may respectively be invested under the Code. It is mentioned that in order to avail the assistance of Judicial Magistrate in public place by police for holding Mobile Court, letter of request, in other words requisitions, are placed with Chief Judicial Magistrate by Superintendent of Police of the concerned district. In exercise the administrative power, the Superintendent of Police seeks the assistance of Judicial Magistrate for holding Mobile Court through Chief Judicial Magistrate, as the said Judicial Magistrate functions under the general control of the Chief Judicial Magistrate of the district. It is further mentioned that not only the holding of Mobile Courts has been approved by the High Court but also the procedure thereof finds place in Chapter XI of GRCO (Criminal), Vol. I. Reliance was placed on the letter issued by the Director General of Police, Odisha to all Superintendents of Police in regard to checking of motor vehicles by Police Station staff wherein it is mentioned that the Than officers should arrange holding Mobile Courts to get the offenders punished at the spot for violation of the provisions of the Motor Vehicle Act and Rules. Therefore, even though there is no provision in the Motor Vehicle Act for holding Mobile Courts and no circular has been issued by the Transport Department for holding such Mobile Courts and no Mobile Court is held on the request and/or requisition of Transport Department in relation to detection of offences but in view of the provisions under section 14 of Cr.P.C. read with Rule 73 of the GRCO (Criminal), Vol. I, there is no bar for a Judicial Magistrate holding a Mobile Court as per the direction of Chief Judicial Magistrate on the requisition of the Superintendent of Police of the concerned district. Needless to say that the request/requisition submitted for holding Mobile Courts must specifically indicate the reason for holding such Mobile Courts. If the Chief Judicial Magistrate is satisfied after going through contents of requisitions regarding necessity of holding Mobile Courts, he can direct the Judicial Magistrate to hold such Courts and specify the areas within which such Courts are to function. The Judicial Magistrate while functioning as a Mobile Court on requisition should keep in mind the provisions of the Rules 74, 75, 76 and 77 of the GRCO (Criminal), Vol. I, more particularly dissociating himself from investigation or detection of offences by Police and Excise Officers. 10. The order sheet of the learned S.D.J.M., Sonepur dated 28.06.2002 indicates about the receipt of the prosecution report from the O.I.C., Sonepur Police Station against the petitioner under sections 177 and 181 of the M.V. Act in the Mobile Court. The order further discloses regarding taking cognizance of such offences on the very day, the presence of the lawyer to represent the petitioner and his prayer to release the petitioner on P.R. bond. The learned Magistrate passed an order for releasing the petitioner on P.R. bond of Rs.1000/-(rupees one thousand only). The petitioner also pleaded not guilty when the particulars of the offences were read over and explained to him. When the learned advocate filed a memo giving an undertaking to file the P.R. bond in Court as he had no P.R. bond with him, the learned Magistrate allowed the prayer and posted the case to 02.07.2002 for filing of the P.R. bond and for appearance of the petitioner in Court. On 02.07.2002 the petitioner appeared and in presence of his advocates, the P.R. bond filed by him was accepted and copy of the prosecution report was supplied to him and as the petitioner pleaded not guilty and claimed to be tried, summons were issued to all the witnesses cited in the P.R. for hearing. 11. On 02.07.2002 the petitioner appeared and in presence of his advocates, the P.R. bond filed by him was accepted and copy of the prosecution report was supplied to him and as the petitioner pleaded not guilty and claimed to be tried, summons were issued to all the witnesses cited in the P.R. for hearing. 11. Therefore, even though the learned S.D.J.M., Sonepur has not committed any illegality in holding the Mobile Court on 28.06.2002 but since I have already held that the submission of the prosecution report on the very day of detection of the alleged offences is illegal and there was no justification to file the prosecution report against the petitioners under sections 177 and 181 of the Motor Vehicles Act, 1988, I am inclined to accept the prayer made by the petitioner in this application and quash the entire proceeding of U.C. Case No.115 of 2002 arising out of Sonepur P.S. non-FIR Case No.15 of 2002 pending in the Court of learned S.D.J.M., Sonepur. Accordingly, the CRLMC application is allowed.