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High Court of Judicature at Bombay
S.C. DHARMADHIKARI & G.S. PATEL, JJ.
Ms. Rani Shashank Doshi
Versus
State of Maharashtra & Others
Criminal Application No.467 of 2012
Decided on : 28-11-2013
In such circumstances whenever a person is found to be driving dangerously or in a drunken state or under the influence of drugs, that he can be proceeded in accordance with law. The offence is committed in the present case if any person while driving or attempting to drive the motor vehicle has in his blood alcohol exceeding 30 mg. per 100 ml. of blood and which is detected in the test by the Breath Analyzer. That the applicant was subjected to such test and the report indicated presence of alcohol exceeding the limits specified by clause (a) of Section 185, that the police officer decided to proceed against her.
The case is pending in the Trial Court. No opinion need be expressed on merits of the charges which are levelled against the applicant as they would prejudice the case of either side. The applicant voluntarily and on her own accompanied the Police Officer in uniform and subjected herself to the test and thereafter, further process of law. The incident has taken place on 27.4.2011 and on that date the applicant after subjecting herself to the test was not detained in custody or arrested, but allowed to go.
In that event the competent Court can make appropriate orders protecting life and liberty of an aggrieved person.
It is apparent that a person arrested in connection with an offence punishable under Section 185 of the MV Act has to be subjected to a medical examination referred to in Sections 203 and 204 by a registered medical practitioner. The Breath Test has to be carried out so as to ascertain whether there was presence of alcohol in his body or a person was under the influence of a drug. Therefore, this is not an absolute power to arrest without warrant, but subject to the conditions specified in law and there are inbuilt safeguards and protection so that a person is not deprived of his life and liberty. In these circumstances merely because the power to arrest without warrant is conferred in a police officer in uniform does not mean that the offence is cognizable. Even if a person is to be subjected to the tests, the Police Officer must have a reasonable cause to suspect him of having committed an offence punishable under Section 185. Therefore, if there is a reasonable cause to suspect a person having committed an offence punishable under Section 185, that he can be subjected to a Breath Test and by calling upon him or requiring him to subject himself to such test, is not necessarily arrest. He could be arrested provided a Breath Test carried out on him indicating presence of alcohol in his blood. He cannot be arrested if he is at a hospital as an indoor patient.
If the person concerned refuses to provide a specimen of breath for a Breath Test or fails to do so and a police officer has a reasonable cause to suspect him of having alcohol in his blood that he may arrest that person except while that person is in hospital as an indoor patient. Even after his arrest he shall while at police station be given an opportunity to provide a specimen of breath for a Breath Test. Therefore, with all this it is not as if the offence can be said to be cognizable. Additionally also because of the extent of punishment, namely, imprisonment for less than two years that a conclusion can safely be reached that an offence punishable under Section 185 of the MV Act is not cognizable.
Motor Vehicles Act, 1988 - Sections 202, 203 and 205 - Constitution of India, Article 21 - Drunken driving. - Breath analyzer test in a drunken driving case, not amounts to arrest or deprivation of right to life and liberty. - It is only when a police officer in uniform requires any person driving or attempting to drive a motor vehicle in a public place, to provide one or more specimens of breath for Breath Test there or nearby if such police officer or officer has any reasonable cause to suspect him of having committed an offence that the requirement of Breath Test has to be fulfilled. Secondly, that requirement is to be fulfilled in the event a motor vehicle is involved in accident in a public place and a police officer in uniform has a reasonable cause to suspect that a person who was driving the motor vehicle at the time of accident has alcohol in his blood or that he was driving the motor vehicle under the influence of drugs, that he may require the person driving the motor vehicle to provide specimen of his breath for Breath Test. Either which way, subjecting oneself to such tests by itself does not deprive a person of his liberty inasmuch as he is not arrested as claimed.
Power to arrest without warrant conferred by Section 202 of the MV Act is subject to certain conditions and it has been clarified that a person arrested by a police officer in connection with an offence punishable under Section 185 shall within two hours of his arrest be subjected to a medical examination referred to in Sections 203 and 204 by a registered medical practitioner. Failure to subject him to such test within the time specified would result in his release from custody. The proviso to sub-section (1) of Section 202 would show that it is only when a police officer in uniform on being satisfied that in his presence an offence punishable under Section 184, 185 or 197 is committed that he may arrest without warrant such person. However, in connection with the offence carved out by Section 185 a person arrested would have to be subjected to the tests. A person can be arrested if he refuses to give his name and address and equally what one finds is that the requirement for a Breath Test has to be made as soon as reasonably practicable after the commission of such offence. [See sub-section (1) of Section 203]. Therefore, the power to arrest without warrant in case of the offence punishable under Section 185 of the MV Act is only to enable a police officer in uniform to subject a person to the tests specified in Sections 203 and 204 of the M.V. Act. Thereafter, it is for the law to take its course. In such circumstances the argument that by subjecting the applicant in this case to a Breath Test means she was arrested and that power having been exercised without pre-registration of a First Information Report entails in deprivation of her life and liberty, cannot be accepted.
Motor Vehicles Act, 1988 - Sections 185, 202 to 205 - Cr PC, 1973, Sections 2(e) and 41, Sch. I, Part II - Offence of drunken driving. - An offence of drunken driving under Section 185 of Act, is a non-cognizance offence. - In any event, the offence of drunken driving under Section 185 of M.V. Act cannot be said to be cognizable only because a power is conferred to arrest any person committing such offence, without warrant. It is apparent that a person arrested in connection with an offence punishable under Section 185 of the MV Act has to be subjected to a medical examination referred to in Sections 203 and 204 by a registered medical practitioner. The Breath Test has to be carried out so as to ascertain whether there was presence of alcohol in his body or a person was under the influence of a drug. Therefore, this is not an absolute power to arrest without warrant, but subject to the conditions specified in law and there are inbuilt safeguards and protection so that a person is not deprived of his life and liberty. In these circumstances merely because the power to arrest without warrant is conferred on a police officer in uniform does not mean that the offence is cognizable. Even if a person is to be subjected to the tests, the Police Officer must have a reasonable cause to suspect him of having committed an offence punishable under Section 185. Therefore, if there is a reasonable cause to suspect a person having committed an offence punishable under Section 185, that he can be subjected to a Breath Test and by calling upon him or requiring him subject himself to such test, is not necessarily arrest. He could be arrested provided a Breath Test carried out on him indicating presence of alcohol in his blood. He cannot be arrested if he is at a hospital as an indoor patient. If the person concerned refuses to provide a specimen of breath for a Breath Test or fails to do so and a police officer has a reasonable cause to suspect him of having alcohol in his blood that he may arrest that person except while that person is in hospital as an indoor patient. Even after his arrest he shall while at police station be given an opportunity to provide a specimen of breath for a Breath Test. Therefore, with all this it is not as if the offence can be said to be cognizable. Additionally also because of the extent of punishment, namely, imprisonment for less than two years that a conclusion can safely be reached that an offence punishable under Section 185 of the MV Act is not cognizable.
S.C. Dharmadhikari, J.
1. In this Criminal Application the only point that arises for our consideration is whether an offence punishable under Section 185 of the Motor Vehicles Act, 1988 is cognizable or non-cognizable.
2. The facts that are necessary to appreciate this question are that on 27.04.2011 the Applicant was driving a motor vehicle when she was signalled to stop by an officer of the N.M. Joshi Marg Police Station, Mumbai. The Applicant was further put to a “Breath Alcohol Analysis Test” and after the test was conducted, no statement was recorded nor was any report given to the Applicant. The Applicant was further directed to deposit a sum of Rs.2000/- for which the Applicant was furnished a receipt. The Applicant was further directed to attend the Court of Special Metropolitan Magistrate (Morning Court), Bhoiwada, Mumbai on 03.05.2011. Thereafter, the Applicant was allowed to go as per the directions of the officers of Respondent No.3.
3. It is stated that on 03.05.2011 the Applicant attended the Court of Special Metropolitan Magistrate, Dadar, Mumbai where number of persons were present. The Applicant's name was called out, but no documents were furnished to the Applicant. The Applicant was asked whether she pleaded guilty to the charge under Section 185 of the Motor Vehicles Act, 1988. The Applicant pleaded not guilty and thereafter the Applicant was directed to attend the Court of Metropolitan Magistrate, 29th Court, Dadar Mumbai. A copy of charge sheet filed by the officers of Respondent No.3 dated 03.05.2011 is annexed as Annexure-A to the Criminal Application.
4. Mr. H.K. Prem, learned counsel appearing for the Applicant, has submitted that an offence punishable under Section 185 of the Motor Vehicles Act, 1988 (for short “the MV Act”) is a cognizable offence. This would be evident from the scheme of the MV Act vis-a-vis the Code of Criminal Procedure, 1973. Mr. Prem, inviting our attention to the definitions of the terms “cognizable offence” and “cognizable case” as appearing in Section 2(c) of the Code of Criminal Procedure, 1973, has submitted that by its very definition, an offence would be a cognizable offence if a police officer is empowered to arrest without warrant in accordance with the First Schedule of the Code of Criminal Procedure, 1973 or under any other law for the time being in force. The First Schedule comprises of two parts. Part-I tabulates the offences under the Indian Penal Code whereas Part-II provides for classification of offences falling in other laws or statutes. In other words, if a statute other than the Indian Penal Code does not categorically classify an offence as cognizable or non cognizable and further does not provide any mechanism to the police to arrest without warrant, Part-II of the First Schedule classifies the offences as cognizable or non cognizable on the basis of the punishment prescribed for the said offence. Thus, an offence other than provided in the Indian Penal Code would be cognizable if either the said statute expressly provides the said offence to be cognizable or empowers a police officer to arrest without warrant. In the alternative the same would be cognizable or non cognizable depending on the punishment prescribed in reference to Part-II of the First Schedule of the Code of Criminal Procedure, 1973.
5. Mr. Prem submitted that Section 41 of the Code of Criminal Procedure, 1973 provides for as to when the police could arrest without warrant. A closer look of Section 41 would demonstrate that the police are empowered to arrest without warrant essentially in connection with the commission of a cognizable offence. As such, Section 2(c) and Section 41 of the Code of Criminal Procedure, 1973 complement each other in laying down the mandate of law that an offence is cognizable where the police can arrest without warrant and vice versa. The conjoint reading of Sections 2(c) and 41, therefore, clearly demonstrates that the law mandates an offence to be c
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