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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.3572 OF 2009
Shri Naresh Dinkar Tari ... Applicant
versus
State of Maharashtra ... Respondent
...
Mr.M.K. Kocharekar for petitioner
Ms.A.T. Jhaveri APP for the State.
CORAM : D.G. KARNIK, J.
DATED : 24th November 2009
ORAL ORDER:-
1. Admit. By consent, heard forthwith.
2. By this application under section 482 of the Code of Criminal
Procedure, the applicant challenges the order of conviction and
sentence imposed upon him by the Metropolitan Magistrate by his order
dated 9th July 2009 and confirmed in Criminal Revision Application no.
107 of 2009 by the learned Addl. Sessions Judge for Greater Mumbai on
31st July 2009.
3. At wee hours of 2.45 a.m., on 9th July 2009 the applicant was
sighted driving a motor cycle by a police officer. The applicant was
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accosted and was subjected to a breath analysis test which showed
presence of 499 milligram of alcohol per 100 ml in his blood. The
police officer directed the applicant to appear before the Special
Metropolitan Magistrate, Bandra at 11.00 a.m on 9th July 2009.
Accordingly, the applicant appeared before the Magistrate and his plea
was recorded forthwith. The applicant pleaded guilty whereupon he
was convicted and sentenced to Simple Imprisonment of 25 days with
a fine of Rs.2,000/- and in default to undergo Simple Imprisonment for
10 days. The licence of the applicant was also suspended for 10
months.
4.
Aggrieved by the order of conviction and sentence, the applicant
filed a revision application before the Court of Sessions Gr. Mumbai.
Before the Court of Sessions the applicant contended that he was
misguided by the police officer to plead guilty and further contended
that the particulars of offence of which he was accused and the
consequences of pleading guilty were not explained to him properly as
required u/s.251 of the Code of Criminal Procedure. By reason of the
faulty plea and on account of the misguidance of the police officer
present, the accused pleaded guilty. Rejecting the contentions the
revision application was dismissed. The applicant has therefore
approached this court.
5. Section 251 of the Code of Criminal Procedure reads thus:
251. Substance of accusation to be stated –
When in a summons-case the accused appears or is
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3offence of which he is accused shall be stated to him, and
he shall be asked whether he pleads guilty or has anydefence to make, but it shall not be necessary to frame a
formal charge”
In a summons case, charge is not required to be framed but a duty is
cast upon the Magistrate to state to the accused the particulars of the
offence of which he is accused and then ask him whether he pleads
guilty or has any defence to make. In the present case, the particulars
of alleged offence were explained to the applicant-accused.
“That you accused on 9th July 2009 at 2.45
hours at Vakola Junction Santacruz (E) Mumbaihave been driving vehicle under influence of
liquor and thereby committed offences
punishable u/s.185 of the Motor Vehicles Act”
The short question that arises for my consideration is whether the
particulars of offence of which the applicant was accused were properly
explained to the applicant-accused. The applicant was only told that he
was accused of committing an offence under section 185 of the Motor
Vehicles Act without explaining what were the essential ingredients of
that section. In my view, this was not proper for the reasons indicated
below:-
6. Section 185 of the Motor Vehicles Act after its amendment
made in the year 1994 reads as under:-
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185. Driving by a drunken person or by a
person under the influence of drugs – Whoever,
while driving, or attempting to drive, a motorvehicle –
(a) has, in his blood, alcohol exceeding 30 mg
per 100 ml of blood detected in a test by a breath
analyser, or)
(b) is under the influence of a drug to such an
extent as to be incapable of exercising proper
control over the vehicle,
shall be punishable for the first offence with imprisonment
for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both;
and for a second or subsequent offence, if committed
within three years of the commission of the previous
similar offence, with imprisonment for a term which may
extend to two years, or with fine which may extend tothree thousand rupees, or with both.
Clause (a) of section 185 of the Motor Vehicles Act prior to 14 th
November 1994 read thus:-
“(a) has, in his blood, alcohol in any quantity,
howsoever small the quantity may be, or”
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Prior to 14th of November 1994, a person was driving or attempting to
drive a motor vehicle with howsoever small quantity of alcohol in his
blood was guilty of an offence u/s.185. However, by reason of an
amendment made in section 185 by Act 54 of 1994 w.e.f. 14/11/1994 a
person is not guilty of an offence under section 185 of the Motor
Vehicles Act unless the quantity of alcohol in his blood exceeds 30 mg
per 100 ml of blood detected in a test by breath analyser. Thus a person
having driving or attempting to drive a motor vehicle even after
consuming alcohol is not guilty of an offence u/s.185 of the Motor
Vehicles Act unless the quantity of alcohol in his blood, as tested by a
breath analyser, exceeds 30 mg per 100 ml of blood. Presence of 30
mg or more of alcohol per 100 ml of blood is an essential requirement
of an offence under clause (a) of section 185 of the Motor Vehicles Act.
In the accusation which was explained by the Magistrate to the accused
it was not stated that the accusation against him was that he was
accused of having 30 mg or more of alcohol per 100 ml in his blood
while he was driving the motor vehicle. The essential ingredient of the
offence that the applicant had 30 mg or more of alcohol per 100 ml in
his blood was not at all stated to the applicant and was not explained to
him. It is possible that accused had consumed some alcohol which
would not have raised level of alcohol in his blood to less than 30 mg
per 100 ml of blood. But under a belief that presence of even a smallest
amount of alcohol in the blood while driving a motor vehicle is an
offence, the accused might have pleaded guilty without knowing that
presence of 30 mg of alcohol or more per 100 ml in the blood is an
essential ingredient of an offence u/s.185 of the Motor Vehicles Act. In
my view, therefore, the particulars of the offence of which he was
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accused were not properly explained to the applicant-accused by the
learned Magistrate and the trial is therefore vitiated.
7. Even the sentence imposed on the applicant appears to be
too harsh. This appears to be his first offence. Atleast there is nothing
on record to show that applicant was previously convicted of similar or
any other offence whatsoever. The applicant has not only been
sentenced to suffer Simple Imprisonment of 25 days, which appears to
be too harsh. If he is a government servant and remains in custody/jail
for more than 48 hours he may be suspended or dismissed. His licence
is also suspended for 10 months. The applicant is living in a
commercial city of Mumbai and may perhaps be required to commute
to his work everyday on a motorcycle. Considering awfully poor public
transport system, suspension of a licence for a long period of 10
months would be too harsh. If he is a salesman required to travel to
different places daily, he may be out of job. Several factors are
required to be taken into consideration while imposing a sentence. This
does not appear to have been done. Sub-section (2) of section 235 of
the Code of Criminal Procedure says that if the accused is convicted,
the Judge shall, unless he proceeds in accordance with the provisions of
section 360, hear the accused on the question of sentence and then pass
sentence on him according to law. The learned Judge merely recorded
the plea of the accused but thereafter did not put to him any question
regarding the sentence. There is nothing on record to show that
applicant was heard on the question of sentence. The accused was not
given an opportunity to show existence of any circumstance which
would deserve leniency or which would entitle him to an order of
probation u/s.360 of the Code of Criminal Procedure. The offence, the
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production of the accused before the court, recording of the plea, and
the order of conviction and sentence were passed on the same day and
in fact within few hours of the offence. The offence was allegedly
committed at 2.45 a.m on 9th July 2009, He was convicted and
sentenced by forenoon and in any event before the closing of the court
hours on the same day. Provisions of section 235(2) do not appear to
have been followed.
8. Consequently, application is required to be allowed and the
matter is required to be remanded back to the Magistrate for fresh trial
in accordance with law. The Magistrate shall state to the accused the
particulars of the offence alleged against the applicant and then record
his plea. If he does not plead guilty the Magistrate shall proceed with
the trial in accordance with law. If the applicant pleads guilty or on
trial is found guilty the Magistrate shall give him an opportunity of
hearing regarding the sentence in accordance with section 235(2) of
the Code of Criminal Procedure.
9. For these reasons, the order of conviction and sentence dated
9th July 2009 passed by the Special Metropolitan Magistrate, Bandra
Court, Mumbai in Criminal Case no.18692/H/09 and the order of the
Court of Sessions, Gr.Mumbai dated 31st July 2009 passed in Criminal
Revision Application 1107 of 2009 are set aside and the case is
remanded back to the Magistrate for fresh trial in accordance with the
observations made herein above.
(D.G. KARNIK,J.)
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