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2023 DIGILAW 2233 (RAJ)

Govind Singh v. State of Rajasthan

2023-12-13

DINESH MEHTA

body2023
ORDER : S.B. Criminal Misc. (Pet.) No. 4332/2022: 1. By way of present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), the petitioner has impugned the order dated 04.07.2022 passed by the Additional Sessions Judge No. 2, Jodhpur Metropolitan (hereinafter referred to as 'the Appellate Court'), whereby the order dated 13.06.2022 passed by the Additional Chief Judicial Metropolitan Magistrate (CBI Cases), Jodhpur Metropolitan (hereinafter referred to as 'the trial Court') has been affirmed by observing that there is no error in the order and that the trial Court could remit the fine by exercising its discretion. 2. Mr. Sharma, learned counsel for the petitioner apprised the Court about the antecedents facts and submitted that the petitioner's vehicle was released by order dated 03.07.2014 pursuant to his application under Section 457 of the Code. Before the decision of releasing the vehicle to the petitioner (owner of the vehicle) was taken, the Investigating Officer had sent his report that the vehicle was not required for any further investigation or trial of the case. It is to be noted that the vehicle was ordered to be released on condition of furnishing a supurdginama of Rs. 9,00,000/-. 3. It is the case of the present petitioner that on account of requirement of funds and change in the circumstances, he had to transfer the ownership of the vehicle to one Rajesh Singh Shekhawat on 17.03.2016. 4. On knowing the factum of transfer of the vehicle, the complainant moved an application before the trial Court for taking up appropriate proceedings inter alia avering that the present petitioner has violated the condition/term of the supurdginama by transferring the vehicle to one Rajesh Singh Shekhawat. 5. Pursuant to the intimation and the application so given, the trial Court passed an order dated 13.06.2022 finding the present petitioner to be flouting the terms of the supurdginama. Resultantly, the trial Court ordered the petitioner to pay a sum of Rs. 9,00,000/- equal to the amount of supurdginama. 6. While passing the order aforesaid, the trial Court did not record any finding about the conduct of the petitioner. On the other hand, the Court accepted the stand of the present petitioner that he was unaware of the legal provisions. 9,00,000/- equal to the amount of supurdginama. 6. While passing the order aforesaid, the trial Court did not record any finding about the conduct of the petitioner. On the other hand, the Court accepted the stand of the present petitioner that he was unaware of the legal provisions. It is pertinent to note that at the same time, the trial Court observed that if the petitioner so wished, he ought to have taken leave/permission of the trial Court before transferring the vehicle to said Rajesh Singh Shekhawat on 17.03.2016. 7. Against the order aforesaid, the petitioner moved to the appellate Court by way of preferring an appeal under Section 449 of the Code, which was registered as Appeal No. 08/2022 and the same was dismissed by order dated 04.07.2022. 8. While rejecting the appeal, learned appellate court observed that the discretion to levy penalty lies with the trial Court and the appellate court cannot interfere in exercise of such discretion, which order is subject matter of the present petition. 9. During the course of pendency of the present petition, on 20.07.2022, this Court permitted the petitioner to move an application under Section 446(3) of the Code for remission of penalty/fine while keeping the present petition pending. 10. Mr. Sharma, learned counsel pointed out that the petitioner has moved the application for remission of the penalty, in which the trial Court has issued a direction on 25.05.2023 to the petitioner to furnish a fresh supurdginama to the tune of Rs. 9,00,000/-. 11. Said order dated 23.05.2023 passed by the trial Court has been challenged by the petitioner by way of another petition being S.B. Criminal Misc. Petition 2954/2023 filed under Section 482 of the Code. 12. During the pendency of the proceedings of Section 446(3) of the Code, the complainant moved an application before the trial Court to hear him. Said application was rejected by the trial Court vide its order dated 28.04.2023 observing that remission is a matter between the court and the owner of the vehicle, in which the complainant is not a necessary party. The complainant approached the Revisional Court, which allowed the revision preferred by the respondent (complainant) on 12.07.2023 and set aside the order of the trial Court and directed the trial Court to hear the complainant as well. 13. The complainant approached the Revisional Court, which allowed the revision preferred by the respondent (complainant) on 12.07.2023 and set aside the order of the trial Court and directed the trial Court to hear the complainant as well. 13. Against such order of the Revisional Court dated 12.07.2023, the petitioner has moved another petition before this Court being S.B. Criminal Misc. Petition No. 4855/2023. 14. Mr. Sharma submitted that before deciding the other two petitions being S.B. Criminal Misc. Petition Nos. 2954/2023 & 4855/2023, if the basic petition against the order of imposition of penalty being S.B. Criminal Misc. Petition No. 4332/2022 be heard, it would serve the ends of justice and ward off the unnecessary litigation. 15. Having considered the overall factual matrix, this Court proceeded to hear learned counsel for the petitioner in petition No. 4332/2022, which is essentially against the order dated 13.06.2022, whereby a penalty of Rs. 9,00,000/- has been imposed upon the petitioner for violating the terms of the supurdginama. 16. Learned counsel for the petitioner submitted that true it is that on account of financial constraints and lack of knowledge of legal provisions and terms of supurdginama, the petitioner had transferred the ownership of the vehicle, but the petitioner had no malafide intention to violate the terms of the supurdginama. Learned counsel argued that the trial Court ought not to have imposed any penalty and if deemed necessary, a token amount of penalty could have been imposed. 17. Mr. Sharma, learned counsel relied upon the judgment and order passed by the Co-ordinate Bench of this Court rendered in case of Anant Goyal & Ors. v. State of Rajasthan; S.B. Criminal Appeal (SB) No. 1932/2023 and in the case of Gopala Ram & Ors. v. State of Rajasthan; S.B. Criminal Misc. Petition No. 584/2020, wherein amount of penalty has been reduced to 10%. 18. He also submitted that the appellate court has committed an error in rejecting petitioner's appeal by observing that it is the discretionary power exercised by the trial Court. He submitted that the appellate court was having same power to remit the penalty in exercise of power under Section 446(3) of the Code and hence, the appellate court ought to have reduced the penalty. 19. Mr. He submitted that the appellate court was having same power to remit the penalty in exercise of power under Section 446(3) of the Code and hence, the appellate court ought to have reduced the penalty. 19. Mr. Sunil Mehta, learned counsel for the complainant vehemently opposed petitioner's prayer for deletion or even reduction of the penalty by contending that petitioner's conduct is required to be seen as per the mandate of provisions of Section 446 of the Code. 20. He underscored that the petitioner before this Court is a person who implanted himself in place of the person who was driving the vehicle at the time of the accident. Where after, evidence was produced that on the fateful day, he was in Maharashtra; a charge-sheet came to be filed against the petitioner. He contended that before taking any decision in relation to the quantum of penalty imposed by the trial Court, petitioner's conduct be taken into account. 21. Learned Public Prosecutor fairly submitted that the penalty of Rs. 9,00,000/- is excessive and the same be reduced as deemed appropriate. 22. Heard learned counsel for the parties and perused the record. 23. True it is, that imposition of penalty is a discretion of the trial Court but such discretion is required to be exercised in reasonable manner. 24. While passing the order impugned dated 13.06.2022, the trial Court has accepted the stand of the present petitioner that the vehicle was sold under mistaken belief or under lack of knowledge. While imposing the penalty, the trial Court has not pointed out or observed anything on conduct of the petitioner and straight away imposed the penalty as high as Rs. 9,00,000/- equal to the amount of supurdginama. 25. True it is, that as per mandate of Section 446 of the Code, conduct of the petitioner is required to be seen but such conduct in the opinion of this Court should necessarily relate to his conduct so far as violation of the terms of supurdginama is concerned and not otherwise. 26. In the opinion of this Court, the conduct which has been highlighted by Mr. Sunil Mehta, learned counsel for the complainant, that he has implicated himself as a driver of the vehicle has hardly any bearing so far as violation of terms of supurdginama is concerned, which was given to get the vehicle involved in the accident released. 27. 26. In the opinion of this Court, the conduct which has been highlighted by Mr. Sunil Mehta, learned counsel for the complainant, that he has implicated himself as a driver of the vehicle has hardly any bearing so far as violation of terms of supurdginama is concerned, which was given to get the vehicle involved in the accident released. 27. This Court does not approve of the action of the present petitioner who had sold the vehicle on 16.03.2017 to one Rajesh Singh Shekhawat, completely giving a go bye to the supurdginama he had given. But then, considering the financial constraints which the petitioner had pleaded, this Court is of the view that the transfer of vehicle was not malafide and such transfer of vehicle has in no manner affected petitioner's involvement in the case, particularly when the Investigating Officer had furnished the report that the vehicle is not required in the investigation and trial. That apart, the petitioner could very well take leave/permission of the trial Court before selling it, which is precisely what the trial Court has observed “the petitioner ought to have taken permission to sell the vehicle.” 28. Adverting to overall facts and circumstances of the case and considering that the petitioner has already moved the application under Section 446(3) of the Code for remission/reduction in penalty, this Court in exercise of its inherent jurisdiction under Section 482 of the Code, deems it appropriate to reduce the penalty of Rs. 9,00,000/- imposed by the trial Court to Rs. 1,00,000/-. Because ultimately, as held by the trial Court, the petitioner has omitted to take permission before transferring the vehicle. 29. The order dated 04.07.2022 passed by the Revisional Court is set aside and the order dated 13.06.2022 is modified accordingly. The petitioner shall be required to deposit the aforesaid amount within a period of one month from today. 30. The present petition so also the stay application stands disposed of. 31. Petitioner's application filed under Section 446(3) of the Code also stands disposed of accordingly. S.B. Criminal Misc. (Pet.) Nos.2954/2023 & 4855/2023: 32. Consequent to the order passed in S.B. Criminal Misc. Petition No. 4332/2022, learned counsel for the petitioner does not press the present petitions. 33. The same are dismissed as not pressed. 34. The stay petitions also stand dismissed.