2013 Supreme(Bom) 63

High Court of Judicature at Bombay
ABHAY M. THIPSAY
Sandeep Indravadan Sagar & Others
Versus
State of Maharashtra & Others
Criminal Writ Petition Nos.1849 of 2010, 268 of 2009, 2003 of 2012, 42 of 2012 & 690 of 2010
Decided on : 10-01-2013

Headnote:Motor Vehicles Act, 1988 - Sections 185 and 202 - Cr PC, 1973, Sections 154, 157 and 173 - Drunken driving of motor vehicle.

       Since offence of drunken driving under Section 185 of Act is cognizable offence hence FIR is not necessary for investigation into a cognizable offence. - The investigation of or into a cognizable offence must be preceded by registration of the First Information Report, is not a sound proposition of law.

       It is true that ordinarily, it would only be on the basis of the First Information Report that the police machinery would be made aware of the offence and, therefore, ordinarily there would be a First Information Report recorded in accordance with the provisions of Section 154 of Cr PC, before the investigation into a cognizable offence or case commences. However, to suggest that the power to investigate flows from the registration of the First Information Report, would be totally incorrect.

       The receipt and recording of First Information Report is not a condition precedent for investigation into a cognizable offence. It is clear from the provisions of Section 157 of the Criminal Procedure Code, which speaks of the procedure for investigation, that the investigation can commence, if the officer in charge of a police station has reason to suspect the commission of a cognizable offence; and this reason can be formed from the information received or otherwise.

       If the offence punishable under Section 185 of the M.V. Act, is committed in the presence of a police officer in uniform, the offender can be arrested by such officer without a warrant.

       However, if it would not be committed in the presence of a police officer in uniform, then, the offender cannot be arrested. It has already been seen that going by the First Schedule to the Code, the offence punishable under Section 185 of the M.V. Act, would be non-cognizable. It is clear that the power to arrest for an offence punishable under Section 185 of the M.V. Act conferred on a police officer is not unqualified. It can be exercised only if two conditions are fulfilled viz :

       (i) the offence must have been committed in the presence of the police officer.

       (ii) when such police officer must be in uniform at that time.

       The question is whether the power to arrest for an offence under Section 185 of the M.V. Act given to a police officer would make the said offence cognizable, as defined in clause (c) of Section 2 of the Code, irrespective of the fact that such power can be exercised only under certain circumstances. The answer has to be in the negative. If the offence under Section 185 of the M.V. Act is to be treated as cognizable on the basis of such limited and circumscribed power to arrest for such offence, then it would result into anomalous situations. It would mean that when the offence takes place in the presence of a police officer in uniform, it becomes cognizable and in other cases, it remains non-cognizable.

       Section 202 of Motor Vehicles Act provides for the arrest of the offender, if such offence is committed in the presence of a police officer in uniform. The proviso to sub-section (1) of Section 202 of the M.V. Act mandates that the person so arrested by the police, in connection with an offence punishable under Section 185 of the M.V. Act, shall, within two hours of his arrest, be subjected to a medical examination referred to in Section 203 and 204 by a registered medical practitioner. It also provides that failing such subjection to a medical examination, the person arrested shall be released from custody.

       The position that emerges on a reading of Sections 202 to 204 is as follows :

       (i) That if the offence punishable under Section 185 of the M.V. Act, popularly called as ’drunken driving’ is committed by a person in the presence of a police officer in uniform, such police officer can arrest such person without a warrant.

       (ii) Such police officer, after the arrest, is required to subject such person to a medical examination referred to in Sections 203 and 204 of the M.V. Act i.e. the Breath Alcohol Analysis Test within two hours of his arrest. If the police officer fails to subject the arrested person to such test within two hours, such person shall be released from custody.

       (iii) If the result of the Breath Test indicates that the person subjected to the Breath Test had alcohol in his blood, the police officer may arrest that person without warrant.

       If both Sections 202 and 203 are considered together, the proper interpretation would be that the initial arrest under Section 202 of the M.V. Act, is only for the purpose of restricting the movements of the offender and for subjecting him to the Breath Test. It is after the result of the Breath Test, that he can be placed under arrest as contemplated under Section 203 of the M.V. Act, which would be the real arrest in respect of the said offence i.e. the arrest as an offender.

       Indeed, the holding of Breath Test and Laboratory Test, is a process of collection of evidence. It has to be accepted that it is a part of investigation. However, the contention that ’if the offence is held to be non-cognizable then, investigation into it cannot be carried out without an order from the Magistrate, in view of the bar created by sub-section (2) of Section 155 of the Code’, is not acceptable.

       Thus, the provisions in the M.V. Act regarding the investigation of the offences punishable under Section 185 of the M.V. Act, will prevail over the provisions in the Code, which prohibit investigation into a non-cognizable offence without an order of a Magistrate. There is, therefore, no illegality committed by the police in subjecting the persons apprehended on the allegation of having committed the offence punishable under Section 185 of the M.V. Act to Breath Test, and in having collected ’evidence’ of the offences.

       The aforesaid discussion lead to the following conclusion.

       (i) Since the power conferred on a police officer to arrest a person who has committed an offence punishable under Section 185 of the M.V. Act, is not an unqualified power, and is conditioned by two requirements :

       (a) That such offence must have been committed in the presence of such police officers.

       (b) That such police officer, at that time, must be in uniform.

       The offence punishable under Section 185 of the M.V. Act cannot be said to be a ’cognizable’ offence.

       (ii) However, though the offence is ’non-ognizable’, still, in view of the special procedure for the investigation into such offences, provided under the M.V. Act itself, it would be perfectly legitimate to carry out investigation into such offences in accordance with the said provisions - and only to the extent provided therein - without any order from the competent Magistrate. The special procedure prescribed in the M.V. Act for the investigation into such offences, would override the bar created by Section 155(2) of the Code in view of the provisions of Sections 4 and 5 of the Code.

       In all these cases, the accused persons are being prosecuted on the basis of a document, called as ’charge-sheet’. The police report under Section 173(2) of the Criminal P.C. is popularly known as ’charge-sheet’ in common parlance. Obviously, such a police report can be filed only in respect of cognizable offences. The form of the "charge-sheet" that is being used in connection with the offences punishable under Section 185 of the Motor Vehicles Act has been approved for cognizable offences punishable under the City of Bombay Police Act. Since the offence punishable under Section 185 of the Motor Vehicles Act cannot be called as a ’cognizable offence, there would be no question of filing a police report, in respect of such an offence.

       Since the offence punishable under Section 185 of the Motor Vehicles Act cannot be termed as a ’cognizable’ offence, the ’charge-sheet’ cannot be construed as a ’police report’ as defined in Section 2(r) of the Cr PC. After having considered all the relevant aspects of the matter, the so called ’charge-sheet’ falls in the category of a ’complaint’ as defined under Section 2(d) of the Cr PC. In any case, whether the documents submitted to the Magistrate is a police report, or whether it is a complaint, has nothing to do with the power, authority or jurisdiction of the Magistrate to take cognizance of the alleged offence.

       Thus, even if termed as a ’charge-sheet’, the document forwarded to the Magistrate in that regard amounts to a complaint, and the Magistrate would be competent to take cognizance of the alleged offence on that basis. Thus, on this ground, the prosecutions covered by the present petitions/applications are not liable to be quashed.

       In all these cases without furnishing the copy of the so-called ’charge-sheet’, the applicants/petitioners were asked whether they were pleading guilty to the accusation of the said offence. This cannot be justified. This procedure will not be in accordance with law.

       In the instant cases, the provisions of Section 207 of the Code, would not be applicable as the cases have not been instituted on a police report. However, the special provisions regarding investigation appearing in the Motor Vehicles Act create a peculiar situation inasmuch as though there would be no police report in respect of such offences, there would be some material which has been collected by the Investigating Agency, i.e. police. Such material is sent to the Magistrate alongwith the complaint (termed as charge-sheet) and this material is proposed to be used against the accused.

       It would be necessary for the accused to know what that material is, and to have copies of the so called ’charge-sheet’ and the accompanying documents without delay and free of cost. In spite of the inapplicability of the provisions of Section 207 of the Code, it is impossible to hold that the accused need not be given copies of the relevant documents before his plea is recorded. However, it is directed that in all such cases i.e. cases under the Motor Vehicles Act, the Magistrate concerned shall forthwith furnish a copy of the "charge-sheet" and the documents on which the prosecution relies to an accused as soon as he appears before the Magistrate.

       It is thereafter that the Magistrate shall state the particulars of the offence (as may be disclosed from the so-called ’charge- sheet’ and the documents accompanying it, if any) to the accused, and record his plea in terms of Section 251 of the Code. If the accused needs some time to go through the "charge-sheet" and, therefore, prays for a postponement of the recording of plea, the Magistrate should ordinarily grant such request.