{"id":18759,"date":"2009-11-24T00:00:00","date_gmt":"2009-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-naresh-dinkar-tari-vs-state-of-maharashtra-on-24-november-2009"},"modified":"2018-04-24T20:46:28","modified_gmt":"2018-04-24T15:16:28","slug":"shri-naresh-dinkar-tari-vs-state-of-maharashtra-on-24-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-naresh-dinkar-tari-vs-state-of-maharashtra-on-24-november-2009","title":{"rendered":"Shri Naresh Dinkar Tari vs State Of Maharashtra on 24 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Naresh Dinkar Tari vs State Of Maharashtra on 24 November, 2009<\/div>\n
Bench: D.G. Karnik<\/div>\n
                                                1\n\n      mpt\n                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                 \n                         CRIMINAL APPELLATE JURISDICTION\n                    CRIMINAL APPLICATION NO.3572  OF  2009\n\n\n\n\n                                                         \n     Shri  Naresh Dinkar Tari                            ...      Applicant\n       versus\n\n\n\n\n                                                        \n     State of Maharashtra                                ...      Respondent\n\n\n                                               ...\n\n\n\n\n                                             \n     Mr.M.K. Kocharekar   for petitioner\n                          \n     Ms.A.T. Jhaveri   APP for the State.\n                         \n                                   CORAM :   D.G. KARNIK, J.\n<\/pre>\n
                                   DATED :   24th  November 2009<\/p>\n
     ORAL ORDER:-\n<\/p>\n
     1.     Admit.  By consent, heard forthwith.\n<\/p>\n
     2.     By   this   application   under   section   482   of   the   Code   of   Criminal <\/p>\n
     Procedure,   the   applicant   challenges   the   order   of   conviction   and
\n     sentence imposed upon him by the Metropolitan Magistrate by his order
\n     dated 9th July 2009 and confirmed in Criminal Revision Application no.\n<\/p>\n
     107 of 2009 by the learned Addl. Sessions Judge for Greater Mumbai on
\n     31st July 2009.\n<\/p>\n
     3.     At wee hours of   2.45 a.m., on 9th  July 2009 the applicant was
\n     sighted driving a motor cycle by a police officer.   The     applicant was <\/p>\n
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\n                                                 2<\/span><\/p>\n
     accosted   and  was   subjected   to   a   breath  analysis   test  which     showed
\n     presence   of   499   milligram   of   alcohol   per  100  ml   in   his   blood.     The <\/p>\n
     police   officer   directed   the   applicant   to   appear   before   the   Special
\n     Metropolitan   Magistrate,   Bandra   at   11.00   a.m   on   9th  July   2009.\n<\/p>\n
     Accordingly, the  applicant appeared before the Magistrate  and his plea
\n     was recorded forthwith.   The applicant pleaded guilty whereupon he
\n     was convicted and sentenced   to Simple Imprisonment of 25 days with <\/p>\n
     a fine of Rs.2,000\/- and in default to undergo Simple Imprisonment for
\n     10   days.     The   licence   of   the   applicant   was   also   suspended   for   10
\n     months.\n<\/p>\n
     4.<\/p>\n
            Aggrieved by the order of conviction and sentence, the applicant
\n     filed a revision application  before the Court of Sessions  Gr. Mumbai.\n<\/p>\n
     Before   the   Court   of   Sessions   the   applicant   contended   that   he   was
\n     misguided by the police officer to plead guilty and further   contended
\n     that   the   particulars   of   offence   of   which   he   was   accused   and   the <\/p>\n
     consequences of pleading guilty were  not explained to him properly as <\/p>\n
     required u\/s.251 of the Code of Criminal Procedure.  By reason of the
\n     faulty   plea   and   on   account   of   the   misguidance   of   the   police   officer
\n     present,   the   accused   pleaded   guilty.     Rejecting   the   contentions   the <\/p>\n
     revision   application   was   dismissed.     The   applicant   has   therefore
\n     approached this court.\n<\/p>\n
     5.     Section 251 of the Code of Criminal Procedure reads thus:\n<\/p>\n
                      251. Substance   of   accusation   to   be   stated   –
\n              When   in   a   summons-case   the   accused   appears   or   is
\n              brought   before   the   Magistrate,   the   particulars   of   the <\/p>\n
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\n                                                  3<\/span><\/p>\n
               offence of which he is accused shall be stated to him, and
\n               he   shall   be   asked   whether   he   pleads   guilty   or   has   any <\/p>\n
               defence to make, but it shall not be necessary to frame a
\n               formal charge”\n<\/p><\/blockquote>\n
     In a summons case, charge is not required to be framed but a duty is
\n     cast upon the Magistrate to state to the accused the particulars of the <\/p>\n
     offence  of  which he  is  accused and then  ask him whether he  pleads
\n     guilty or has any defence to make.  In the present case, the particulars
\n     of alleged offence were explained to the applicant-accused.\n<\/p>\n
                     “That   you   accused   on   9th  July   2009   at   2.45
\n                     hours at Vakola Junction Santacruz (E) Mumbai <\/p>\n
                     have   been   driving   vehicle   under   influence   of
\n                     liquor   and   thereby   committed   offences
\n                     punishable u\/s.185 of the Motor Vehicles Act”\n<\/p><\/blockquote>\n
     The   short   question   that   arises   for   my   consideration   is   whether   the
\n     particulars of offence of which the applicant was accused were properly
\n     explained to the applicant-accused.  The applicant was only told that he <\/p>\n
     was accused of committing an offence under section 185 of the Motor
\n     Vehicles Act without explaining what were the essential ingredients of
\n     that section.  In my view, this was not proper for the reasons indicated <\/p>\n
     below:-\n<\/p>\n
     6.         Section   185   of   the   Motor   Vehicles   Act   after   its   amendment
\n     made in the year 1994 reads as under:-\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:20:28 :::<\/span>
\n                                                  4<\/span><\/p>\n
                    185.           Driving   by   a   drunken   person   or   by   a <\/p>\n
                    person   under   the   influence   of   drugs   –   Whoever,
\n                    while   driving,   or   attempting   to   drive,   a   motor <\/p>\n
                    vehicle –\n<\/p><\/blockquote>\n
                    (a)       has, in his blood, alcohol exceeding 30 mg \n                    per 100 ml of blood detected in a test by a breath \n\n\n\n\n                                                         \n                    analyser, or)\n\n\n                    (b)       is under the influence of a drug to such an \n\n\n\n\n                                            \n                    extent   as   to   be   incapable   of   exercising   proper \n                           \n                    control over the vehicle,\n                          \n<\/pre>\n
               shall be punishable for the first offence with imprisonment
\n               for a term which may extend to six months, or with fine
\n               which may extend to two thousand rupees, or with both;\n<\/p><\/blockquote>\n
               and   for   a   second   or   subsequent   offence,   if   committed <\/p>\n
               within   three   years   of   the   commission   of   the   previous
\n               similar offence, with imprisonment for a term which may
\n               extend   to   two   years,   or   with   fine   which   may   extend   to <\/p>\n
               three thousand rupees, or with both.\n<\/p><\/blockquote>\n
     Clause   (a)   of   section   185   of   the   Motor   Vehicles   Act   prior   to   14 th <\/p>\n
     November 1994 read thus:-\n<\/p>\n
                “(a) has, in his  blood, alcohol in any quantity,
\n                howsoever small the quantity may be, or”\n<\/p>\n
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\n                                                  5<\/span><\/p>\n
     Prior to  14th of November 1994,  a person was driving or attempting to <\/p>\n
     drive a motor vehicle with  howsoever small quantity of alcohol in his
\n     blood   was   guilty   of   an   offence   u\/s.185.     However,   by   reason   of   an <\/p>\n
     amendment made in section 185 by Act 54 of 1994 w.e.f. 14\/11\/1994 a
\n     person   is   not   guilty   of   an   offence   under   section   185   of   the   Motor
\n     Vehicles Act unless the quantity of alcohol in his blood exceeds 30 mg <\/p>\n
     per 100 ml of blood detected in a test by breath analyser.  Thus a person
\n     having   driving   or   attempting   to   drive   a   motor   vehicle   even   after
\n     consuming   alcohol   is   not   guilty   of   an   offence   u\/s.185   of   the   Motor <\/p>\n
     Vehicles Act unless the quantity of alcohol in his blood, as tested by a <\/p>\n
     breath analyser, exceeds 30 mg per 100 ml of blood.     Presence of 30
\n     mg or more of alcohol per 100 ml of blood is an essential requirement <\/p>\n
     of an offence  under clause (a) of section 185 of the Motor Vehicles Act.
\n     In the accusation which was explained by the Magistrate to the accused
\n     it   was   not   stated   that   the   accusation   against   him   was   that   he   was <\/p>\n
     accused of having 30 mg or more of alcohol per 100 ml in his blood <\/p>\n
     while he was driving the motor vehicle.  The essential ingredient of the
\n     offence that the applicant had 30 mg or more of alcohol per 100 ml in
\n     his blood was not at all stated to the applicant and was not explained to <\/p>\n
     him.   It is possible that accused had consumed some alcohol   which
\n     would not  have raised  level of alcohol in  his blood to less than  30 mg
\n     per 100 ml of blood.  But under a belief that presence of even a smallest <\/p>\n
     amount of alcohol in the blood while driving a motor vehicle   is an
\n     offence, the   accused might have pleaded guilty without knowing that
\n     presence of 30 mg of alcohol or more per 100 ml in the blood is an
\n     essential ingredient of an offence u\/s.185 of the Motor Vehicles Act.  In
\n     my   view,   therefore,   the   particulars   of   the   offence   of   which   he   was <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:20:28 :::<\/span>
\n                                                   6<\/span><\/p>\n
     accused were   not properly explained to the   applicant-accused by the
\n     learned Magistrate and the trial is therefore vitiated.\n<\/p>\n
     7.              Even the sentence  imposed on the applicant appears to be <\/p>\n
     too harsh.  This appears to be his first offence.  Atleast there is nothing
\n     on record to show that applicant was previously convicted of similar or
\n     any   other   offence   whatsoever.     The   applicant   has   not   only   been <\/p>\n
     sentenced to suffer Simple Imprisonment of 25 days, which  appears to
\n     be too harsh.  If he is a government servant and remains in custody\/jail
\n     for more than 48 hours he may be suspended or dismissed.   His licence <\/p>\n
     is   also   suspended   for   10   months.     The   applicant   is   living   in   a <\/p>\n
     commercial city of Mumbai and may perhaps be required to commute
\n     to his work everyday on a motorcycle.  Considering awfully poor public <\/p>\n
     transport   system,   suspension     of   a   licence   for   a   long   period   of   10
\n     months would be too harsh.   If he is a salesman required to travel to
\n     different   places   daily,   he   may   be   out   of     job.     Several   factors   are <\/p>\n
     required to be taken into consideration while imposing a sentence.  This <\/p>\n
     does not appear to have been done.   Sub-section (2) of section 235 of
\n     the Code of Criminal Procedure says   that if the accused is convicted,
\n     the Judge shall, unless he proceeds in accordance with the provisions of <\/p>\n
     section 360, hear the accused on the question of sentence and then pass
\n     sentence on him according to law.  The learned  Judge merely recorded
\n     the plea of the accused but thereafter  did not put to him any question <\/p>\n
     regarding   the   sentence.     There   is   nothing   on   record   to   show   that
\n     applicant was heard on the question  of sentence.  The accused was not
\n     given   an   opportunity   to   show   existence   of   any   circumstance   which
\n     would   deserve   leniency   or   which   would     entitle   him   to   an   order   of
\n     probation u\/s.360 of the Code of Criminal Procedure.  The offence, the <\/p>\n
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\n                                                   7<\/span><\/p>\n
     production of the accused before the court, recording of the plea, and
\n     the order of conviction and sentence were passed on the same day and <\/p>\n
     in  fact within  few hours of the  offence.     The  offence was allegedly
\n     committed   at   2.45   a.m   on   9th  July   2009,     He   was   convicted   and <\/p>\n
     sentenced by forenoon and in any event before the closing of the court
\n     hours on the same day.  Provisions of section 235(2) do not appear to
\n     have been followed.\n<\/p>\n
     8.       Consequently,   application   is   required   to   be   allowed   and   the
\n     matter is required to be remanded back to the Magistrate for fresh trial <\/p>\n
     in accordance with law.   The Magistrate shall state to the accused the <\/p>\n
     particulars of the offence alleged against  the applicant  and then record
\n     his plea.   If he does not plead guilty the Magistrate shall proceed with <\/p>\n
     the trial in accordance with law.     If the applicant pleads guilty or on
\n     trial   is   found   guilty   the   Magistrate   shall   give   him   an   opportunity   of
\n     hearing regarding the   sentence in accordance with section 235(2) of <\/p>\n
     the Code of Criminal Procedure.\n<\/p>\n
     9.         For these reasons, the order of conviction and sentence  dated
\n     9th  July 2009  passed  by the  Special  Metropolitan   Magistrate,  Bandra <\/p>\n
     Court, Mumbai in Criminal Case no.18692\/H\/09 and the order of the
\n     Court of Sessions, Gr.Mumbai dated 31st  July 2009 passed in Criminal
\n     Revision   Application   1107   of   2009   are   set   aside   and     the   case   is <\/p>\n
     remanded back to the Magistrate for fresh trial in accordance with the
\n     observations made herein above.\n<\/p>\n
                                                            (D.G. KARNIK,J.)<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:20:28 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Naresh Dinkar Tari vs State Of Maharashtra on 24 November, 2009 Bench: D.G. Karnik 1 mpt 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-18759","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Naresh Dinkar Tari vs State Of Maharashtra on 24 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-naresh-dinkar-tari-vs-state-of-maharashtra-on-24-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Naresh Dinkar Tari vs State Of Maharashtra on 24 November, 2009 - 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