State vs Manoj Kumar
2011 Latest Caselaw 1074 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.APPEAL No.293/2011

                                                        Decided on 23.02.2011
IN THE MATTER OF :
STATE                                                       ..... Petitioner
                          Through: Mr. M.N. Dudeja, APP for the State

                   versus

MANOJ KUMAR                                                   ..... Respondent
                          Through: Mr. S.K. Anand, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          Yes

     3. Whether the judgment should be                  Yes
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present appeal arises out of the judgment and order dated

24.04.2007 passed by the learned Additional Sessions Judge, setting aside

the judgment of conviction dated 03.03.2007 passed by the learned

Metropolitan Magistrate in a case pertaining to an offence punishable under

Sections 66(1)/192-A/7/177 of the Motor Vehicle Act, 1988 (hereinafter

referred to as „the Act‟). While passing the judgment of conviction dated

03.03.2007, the learned Metropolitan Magistrate had held that there was no

evidence to show that the respondent/accused was not wearing the uniform

while driving the RTV and, therefore, charges under Sections 7/177 of the

Act were not proved. However, the respondent was held guilty for the

offence punishable under Sections 66/192-A of the Act. By the order on

sentence dated 24.03.2007, the respondent/accused was sentenced to pay a

fine of `5,000/- for the offence punishable under Sections 66/192-A of the

Act. Though the fine was deposited, the respondent/accused preferred an

appeal under Section 374 of the Cr.PC against the aforesaid judgment of

conviction and the order on sentence. The said appeal was allowed by the

impugned judgment and the judgment of conviction and the order on

sentence of the trial court were set aside. Aggrieved by the aforesaid

judgment of the Appellate Court, the State has preferred the present appeal.

2. Briefly stated, the facts of the case, as per the State, are that on

30.06.2004 at about 12:30 PM, the respondent/accused, while driving RTV

No.DL-1VA-2858, stopped the said vehicle at Ajmeri Gate Bus Stand and

started picking up passengers by calling them to be taken to Khajuri Khas

and Gagan, in violation of the permit conditions as the accused had been

given a C.C. permit only. He was also found to be not wearing his uniform

at the time of the said incident. The respondent was challaned for violation

of conditions of permit u/s 66/192A of the Act and his vehicle was

impounded as per Section 207 of the CrPC. Notice to show cause was served

on the respondent/accused, to which he pleaded not guilty and claimed trial.

The prosecution examined two witnesses namely, PW1, SI Attar Singh, the

officer who challaned the accused and PW-2, Ct.Kuldeep, who was

accompanying PW-1 during all the proceedings. After completion of the

evidence, statement of the accused was recorded by the learned

Metropolitan Magistrate. In his statement, the respondent/accused stated

that he had a C.C. permit only and that on 30.06.2004 at about 12:30 PM,

he had been carrying passengers in his RTV for the destination of Khajuri

Khas and Gagan by charging money from them.

3. The argument of the counsel for the respondent/accused before

the learned Metropolitan Magistrate was that not only was the RTV

improperly impounded, the challan issued to the respondent/accused was

also improper. In this regard, he sought to rely on the judgment of the

Supreme Court in the case of M.C. Mehta vs. Union of India & Ors. reported

as 69(1998) DLT 769, to state that as per the guidelines laid down

therein, flying squads made up of inter-departmental teams headed by an

SDM were to be constituted and only such squads could enforce the

guidelines/directions laid down by the Supreme Court and exercise powers

under Section 207 as well as Section 84 of the Motor Vehicles Act. The

aforesaid submission made on behalf of the respondent/accused was

rejected by the learned Metropolitan Magistrate, by holding that the

guidelines laid down in the aforesaid Supreme Court decision were in

addition to the other responsibilities enjoined on the owner and driver of the

vehicle under the Act and that the powers under Section 207 of the Act were

not meant to be only exercised by the SDM or ACP. In light of these

observations, it was held that the respondent/accused was not driving the

vehicle as per the scheme of C.C. permit. As a result, while acquitting the

respondent/accused in respect of charges against him under Sections 7/177

of the Act, for not wearing the uniform, he was held guilty for the offence

punishable under Sections 66/192-A of the Act.

4. In appeal, the learned Additional Sessions Judge differed from

the conclusion arrived at by the trial court and set aside the said judgment

on the ground that once a notice was given to the respondent/accused under

Section 251 of the Cr.PC, for violation of guidelines of the Supreme Court, it

was essential that the directions given in the case of M.C. Mehta (supra) be

followed in totality. It was held that since the respondent had been challaned

by an officer below the rank of the Assistant Commissioner of Police, his

conviction based on such a challan was bad in the eyes of law and hence,

ordered to be set aside.

5. Learned APP for the State submits that the Appellate Court erred

in reversing the findings of the learned Metropolitan Magistrate inasmuch as

the said Court erred in overlooking the fact that the respondent/accused was

not only issued a notice to show cause for violation of the guidelines laid

down by the Supreme Court in the case of M.C. Mehta (supra), but was also

challaned for violation of other relevant provisions under the Act and the

Delhi Motor Vehicle Rules and, therefore, merely because the challan was

issued by a Sub-Inspector to the respondent/accused would not make the

entire proceedings bad in law, as the challan was thereafter forwarded to the

court of competent jurisdiction for being tried in accordance with law.

6. This Court has perused the impugned judgment dated

24.04.2007 passed by the learned Additional Sessions Judge as also the

judgment of conviction dated 03.03.2007 and the order on sentence dated

24.03.2007 passed by the learned Metropolitan Magistrate. A perusal of the

notice to show cause dated 19.05.2005, issued by the learned Metropolitan

Magistrate to the respondent/accused, shows that he was informed that on

the relevant date, time and place, he was found picking and dropping

passengers and calling upon them and while doing so, he had stopped his

RTV away from the designated Bus Stop in violation of the guidelines issued

by the Supreme Court of India. Secondly, he was informed that on the

relevant date, time and place, he was unable to produce the original

documents in respect of the vehicle and was also found to be not wearing his

dress/uniform. As a result, he was issued a notice to show cause as to why

he should not be tried for the offences under Sections 66(1) read with

Section 192-A of the Act and Sections 7/130 of the Delhi Motor Vehicle Rules

read with Section 177 of the Act. As the respondent/accused pleaded that

he was not guilty and claimed trial, the matter was taken to trial.

7. The learned APP for the State has argued that at this stage, it

would not be correct for the appellant to argue that the challan issued to him

was vague and he was unaware of the line of defence that he could have

taken, as the notice to show cause issued to the respondent/accused,

specifically mentions the provisions of the Act in respect of which, it was

claimed that he had committed an offence. There is merit in the aforesaid

submission. Further, it is also settled law that unless the convict is able to

establish that defect in framing the charges has caused real prejudice to him

and that he was not informed as to what was the real case against him, as a

result of which he could not defend himself properly, no interference is

required on mere technicalities. This view was taken by the Supreme Court

in the case of Sanichar Sahni v. State of Bihar reported as (2009) 7 SCC

198 and reiterated in Annareddy Sambasiva Reddy v. State of A.P. reported

as (2009) 12 SCC 546, where it was held -

"55. In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if the accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned."

In the present case, the appellant was informed of the offences against him

in the notice to show cause, but even if the argument urged on his behalf is

accepted that he was unaware of the offences charged against him, then

also no prejudice caused to him has been shown on account of such an

omission, so as to render the conviction bad.

8. In the present case, vide order dated 19.05.2005, after hearing

the parties on the point of charge, the learned Metropolitan Magistrate found

that prima facie charge under Section 66/192 and Section 7/130 read with

Section 177 of the Act was made out against the respondent/accused.

Pertinently, the provision of Section 66 of the Act, which deals with necessity

for permits falls under Chapter V of the Act which deals with control of

transport vehicles and lays down that no owner of a motor vehicle would be

permitted to use the vehicle as a transport vehicle in any public place, save

in accordance with the permit granted, authorizing him to use the said

vehicle in the manner so permitted. Section 192A falls under Chapter XIII of

the Act, which pertains to offences, penalties and procedure. The aforesaid

provision stipulates that whoever drives a motor vehicle 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 `5,000/- but

shall not be less than `2,000/- and for second or subsequent offence with

imprisonment which may extend to one year or with fine which may extend

to `10,000/- but shall not be less than `5,000/- or both.

9. In the case of M.C. Mehta (supra), relied upon by the learned

counsel for the respondent, the Supreme Court, while exercising its powers

under Article 32 read with Article 142 of the Constitution of India, issued

directions to the police and all other authorities entrusted with the

administration and enforcement of the Motor Vehicles Act and generally with

the control of traffic, to take certain steps to ensure that transport vehicles

are used in a manner so as not to imperil public safety. One of the

guidelines of the Supreme Court was as below: -

".......

(e) Any breach of the aforesaid directions by any person, apart from entailing other legal consequences, be dealt with as contravention of the conditions of the permit, which could entail suspension/cancellation of the permit and impounding of the vehicle.

...

(g) To enforce these directions, flying squads made up for inter-departmental teams headed by an SDM shall be constituted and they shall exercise powers under Section 207 as well as Section 84 of the Motor Vehicle Act.

The Government is directed to notify under Section 86(4) the officers of the rank of Assistant Commissioner of Police or above so that these officers are also utilized for constituting the flying squads."

10. A perusal of the aforesaid guidelines shows that the Supreme

Court was mindful of the fact that the said guidelines were laid down and

were to be given effect to, over and above other legal provisions as set out

in the Statute. Therefore, the learned Metropolitan Magistrate was quite

justified in holding that the guidelines formulated by the Supreme Court in

the case of M.C.Mehta (supra) did not mandate that the provisions of the Act

would be set to naught or would stand substituted. Rather, the guidelines

were to be in addition to the mandate of the Statute. The intent and

purpose of constituting flying squads was to ensure enforcement of the

directions issued by the Supreme Court and for exercise of powers under

Section 207 of the Act as also Section 84 of the Act. Section 207 of the Act

empowers any police officer or other person authorized in this behalf by the

State Government to detain the vehicle used without certificate of

registration permit. Section 84 of the Act lays down general conditions

attaching to all permits. In such circumstances, it cannot be held that the

guidelines laid down by the Supreme Court were in derogation of the Act.

Rather, the said guidelines only supplemented the Motor Vehicle Act and

were laid down to ensure that transport vehicles followed public safety

norms on the roads of the NCR and NCT of Delhi by operating, within speed

limit, without overtaking any other four wheeled vehicle, by confining

themselves to bus lanes, and ensuring that the bus halted only at the bus

stops designated for the said purpose etc.

11. In the aforesaid facts and circumstances, this Court is inclined to

agree with the submission made on behalf of the State that merely because

the respondent was challaned by an officer of the rank of Sub-Inspector,

could not be treated as a ground to set aside the impugned judgment of

conviction and the order on sentence, as the notice to show cause

specifically mentioned the offences stated to have been committed by the

respondent/accused under the Act and based on the said notice to show

cause, the respondent was charged and after conducting the trial, he was

held guilty of the offence punishable under Sections 66/192-A of the Act,

and called upon to pay a fine of `5,000/-.

12. For the aforesaid reasons, the appeal is allowed and the

impugned judgment dated 24.04.2007 passed by the appellate Court is set

aside, while upholding the judgment of conviction dated 03.03.2007 and the

order on sentence dated 24.03.2007 passed by the learned MM.

13. As it is stated by the learned APP for the State that the

respondent/accused has withdrawn the fine of `5,000/- deposited by him

earlier, he is permitted to deposit the fine of `5,000/- in the concerned

court, within four weeks, or in the alternate, show proof of deposit made

earlier, to the said court.

14. The appeal is disposed of. There shall however be no order as to

costs.

                                                     (HIMA KOHLI)
FEBRUARY 23, 2011                                       JUDGE
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