Kerala High Court
Majitha vs State Of Kerala on 8 December, 2023
Author: P. V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
CRL.MC NO. 9950 OF 2023
CRIME NO.290/2023 OF MANKADA POLICE STATION, Malappuram
AGAINST THE ORDER IN CC 476/2023 OF JUDICIAL MAGISTRATE OF
FIRST CLASS COURT-II, PERINTHALMANNA
PETITIONER/ACCUSED:
MAJITHA, AGED 36 YEARS, W/O.HMAZA
(LATE),ULLATTUPARA HOUSE , PALAKKATHADAM,
MANKADA, MALAPPURAM DISTRICT, PIN - 679324
BY ADV P.ABDUL NISHAD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER,
MANKADA POLICE STATION, PERINTHALAMANNA TALUK,
MALAPPURAM DISTRICT, PIN - 679324
OTHER PRESENT:
SRI MP PRASANTH, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 08.12.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.MC 9950/2023 2
P. V. KUNHIKRISHNAN, J.
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Crl.M.C.No.9950 of 2023
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Dated this the 8th day of December, 2023
ORDER
This Criminal Miscellaneous Case is filed under Section 482 of
the Code of Criminal Procedure, 1973 ("the Code" for the sake of
brevity).
2. The petitioner is the accused in C.C.No.476/2023 on the
file of the Judicial First Class Magistrate Court-II, Perinthalmanna
arising from Crime No.290/2023 of Mankada Police Station,
Malappuram. The above case is registered alleging offences
punishable under sections 199A(1), 199A(2), 5 r/w 180 of the Motor
Vehicles Act, 1988.
3. The prosecution case is that, on 18.04.2023 at about 5
p.m., the petitioner permitted her minor boy, who is immature and
not having valid driving license, to ride scooter bearing registration
no.KL-53D-3410 and thereby causing danger to the public.
Annexure-A1 is the FIR and Annexure-A2 is the final report in this
case. The contention of the petitioner is that, Annexure-A2
chargesheet is not maintainable against the petitioner because in
order to charge the offence against the guardian of a minor, offence
must have been committed by a juvenile and only thereupon, the
charge under section 199A of the Motor Vehicles Act can be imposed
upon the the guardian of such juvenile.
4. The petitioner relied on the judgment of this Court dated
20.06.2023 in Crl.M.C.No.4779/2023 in which an order passed in
Crl.M.C.No.7479/2022 is relied. Hence this criminal miscellaneous
case.
5. Heard the learned counsel appearing for the petitioner
and the learned Public Prosecutor.
6. After hearing both sides, I think Annexure-A2 final report
will not stand in the light of the dictum laid down in
Crl.M.C.No.7479/2022 which is followed in Crl.M.C. No.4779/2023.
It will be better to extract the relevant portion of the judgment in
Crl.M.C.No.7479/2022:
"4. The contention put forward by the learned
counsel for the petitioner is that none of the offences
alleged against him would be attracted against him. The
crux of the contention of the learned counsel for the
petitioner is that Section 199A of the Motor Vehicles Act
requires that an offence must have been committed by a
Juvenile and only thereupon the charge under Section
199A can be imposed upon the guardian of such juvenile. It
is pointed out that, in this case, no such offences are
charged against the juvenile and in the absence of such
prosecution, the proceedings against the petitioner cannot
be continued. On the other hand, the learned Public
Prosecutor would oppose the same.
5. After considering the relevant aspects, I find some
force in the contention put forward by the learned counsel
for the petitioner. Section 199A of the Motor Vehicles Act
reads as follows:
"199-A. Offences by juveniles.--(1) Where an
offence under this Act has been committed by a
juvenile, the guardian of such juvenile or the owner
of the motor vehicle shall be deemed to be guilty of
the contravention and shall be liable to be proceeded
against and punished accordingly: Provided that
nothing in this sub-section shall render such
guardian or owner liable to any punishment
provided in this Act, if he proves that the offence was
committed without his knowledge or that he
exercised all due diligence to prevent the
commission of such offence.
Explanation.-- For the purposes of this
section, the Court shall
presume that the use of the motor vehicle by
the juvenile was with the consent of the guardian of
such juvenile or the owner of the motor vehicle, as
the case may be.
(2) In addition to the penalty under sub-
section (1), such guardian or owner shall be
punishable with imprisonment for a term which may
extend to three years and with a fine of twenty-five
thousand rupees.
(3) The provisions of sub-section (1) and sub-
section (2) shall not apply to such guardian or owner
if the juvenile committing the offence had been
granted a learner's licence under section 8 or a
driving licence and was operating a motor vehicle
which such juvenile was licensed to operate.
(4) Where an offence under this Act has been
committed by a juvenile, the registration of the
motor vehicle used in the commission of the offence
shall be cancelled for a period of twelve months.
(5) Where an offence under this Act has been
committed by a juvenile, then, notwithstanding
section 4 or section 7, such juvenile shall not be
eligible to be granted a driving licence under section
9 or a learner's licence under section 8 until such
juvenile has attained the age of twenty-five years.
(6) Where an offence under this Act has been
committed by a juvenile, then such juvenile shall be
punishable with such fines as provided in the Act,
while any custodial sentence may be modified as per
the provisions of the Juvenile Justice Act, 2000 (56
of 2000).]"
As per section 199A, the guardian of a juvenile can
be implicated in for the said offence only if a juvenile has
committed the offence under the Motor Vehicles Act. It is
to be noted that, the said provision starts with the words
"Where an offence under this act has been committed by
juvenile". In this case, even though it is stated that the
juvenile drove the vehicle, no offence is charged against the
said juvenile. In the absence of any charge against the
juvenile for the commission of an offence under the Motor
Vehicles Act, no offence under section 199A against the
guardian of such juvenile would be attracted. In other
words, the commission of the offence by the juvenile is the
most crucial ingredient for attracting the offence under
section 199A of the Motor Vehicles Act.
6. Besides the above ground, there is yet another
aspect in this case.No materials were produced to
substantiate the age of the petitioner's son, who allegedly
drove the vehicle. In the absence of any documents to
prove the age of the son of the petitioner, it cannot be
concluded that a juvenile drove the vehicle. Since the
commission of an offence under the provisions of the
Motor Vehicles Act by a juvenile is a mandatory
requirement for attracting the offence under Section 199A
of the Act, the absence of such an offence and the materials
to substantiate the commission of such an offence by a
juvenile would cut the root of the prosecution case.
Therefore, under no circumstances can the petitioner be
prosecuted for the offences under Section 199A of the
Motor Vehicles Act.
7. The remaining offence is under Section 336 of the
Indian Penal Code, which reads as follows:
"336. Act endangering life or personal safety of
others.-- Whoever does any act so rashly or
negligently as to endanger human life or the personal
safety of others, shall be punished with imprisonment
of either description for a term which may extend to
three months, or with fine which may extend to two
hundred and fifty rupees, or with both.
The specific contention of the learned counsel for the
petitioner is that, apart from the allegation that the
petitioner permitted his minor son to drive the vehicle,
there is no allegation to attract the aforesaid offences. To
constitute the said offence, there must be a specific
allegation that the accused committed a rash and negligent
act to endanger human life or the personal safety of others.
In this case, even though it is stated that the driving of the
vehicle by the son of the petitioner was in a rash and
negligent manner, the said rashness or negligence was
attributed to the driver of the vehicle, only because of the
reason that he was a juvenile and was not having a driving
license. As far as the question of the minority of the driver
is concerned, absolutely no documents are produced to
substantiate the same and in the absence of such materials,
it cannot be concluded that the person driving the vehicle
was a juvenile at the relevant time. As rightly pointed out
by the learned counsel for the petitioner, in the statements
of the witnesses, apart from the fact that the driver was a
minor, no other acts which would qualify the rashness or
negligence are specified. In such circumstances, I am of the
view that the offence under Section 336 of the Indian Penal
Code also would not be attracted. "
7. As held by this Court, the guardian of a juvenile can be
proceeded against only if a juvenile has committed the offence under
the Motor Vehicles Act. In the case on hand, there is no case for the
prosecution that the juvenile has committed any offence. No
proceeding has been initiated against the juvenile either.
Furthermore, no materials have been placed before this Court to
substantiate that the person who rode the motor cycle is a juvenile.
As far as Section 336 of the IPC is concerned, a specific allegation is
necessary that the accused had committed a rash and negligent act
intending to endanger human life or the personal safety of others. As
there is no material to show that the person who drove the motor
cycle is a juvenile and that he is not having a driving license, the
offence under Section 336 of the IPC will not be attracted. Hence
this Criminal Miscellaneous case is to be allowed.
Therefore, this Criminal Miscellaneous Case is allowed. All
further proceedings against the petitioner in C.C.No.476/2023 on the
file of the Judicial First Class Magistrate Court-II, Perinthalmanna
arising from Crime No.290/2023 of Mankada Police Station,
Malappuram are quashed.
Sd/-
P. V. KUNHIKRISHNAN
JUDGE
Sbna/
PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF THE FIRST INFORMATION
REPORT IN CRIME NO. 290 / 2023 OF
MANKADA POLICE STATION DATED 18-04-2023
Annexure A2 THE CERTIFIED COPY OF THE FINAL REPORT
FILED BY INVESTIGATION OFFICER IN CRIME
NO. 476 / 2023 OF MANKADA POLICE STATION
DATED 19-04-2023
Annexure A3 THE TRUE COPY OF THE ORDER IN CRL MC NO.
7479/2022 OF THIS HON'BLE COURT DATED
24-11-2022
