Procedural non-compliance under the Motor Vehicles Act does not invalidate prosecution for rash driving under the Indian Penal Code, as both offences have distinct legal elements.

ORDER

The petitioner is the accused in S.T.No.2317/2019 on the files of the Judicial First Class Magistrate Court, Mavelikkara. The offences alleged against him are under Section 279 of the Indian Penal Code , 1860(in short, ‘ IPC '), and Section 185 of the Motor Vehicles Act ,1988 (in short, ‘ MV Act ’). He seeks to quash the proceedings in the said case on the grounds of procedural irregularities on the part of the investigating agency.

2. The prosecution case is that on 26.09.2019, at about 8:30 p.m, the accused/petitioner was found to have been driving a motor car under the influence of alcohol, in a rash and negligent manner, likely to endanger human life, through Kallumala-Nalumukku public road. The Sub Inspector of Police, Mavelikkara, and his team are said to have intercepted the vehicle and arrested the accused. However, no breath analyser test or laboratory test to ascertain the alcohol content in the blood of the petitioner, was done. Instead, it appears that the petitioner was thereafter released on bail. Later on, the Sub Inspector of Police, Mavelikkara, filed a final report before the learned Magistrate alleging the commission of offence under Section 279 IPC and Section 185 of the MV Act .

3. In the present petition, the petitioner would contend that the prosecution initiated against him is bad in the eye of law due to procedural non-compliance of the mandatory requirements of the statute. It is also stated that the offence under Section 279 IPC has no independent existence in the facts and circumstances of the case, when it is found that Section 185 of the MV Act cannot be invoked due to procedural infraction.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. The crime involved in this case is alleged to have been committed on 26.09.2019, that is, after the amendment made to Section 185 of the Motor Vehicles Act vide Act 32 of 2019 came into force. As the law which stands on 05.03.2020, (a) of the MV Act mandated the detection of alcohol content in the blood of the offender as exceeding 30 mg per 100 ml through a breath analyser test or any other test including a laboratory test. As far as the present case is concerned, none of the aforesaid tests were done by the investigating agency to ascertain the alcohol content in the blood of the petitioner. Therefore, it is apparent that the procedural requirements to bring home the offence under of the MV Act are lacking in the present case.

6. It is pertinent to note that the petitioner has been booked not only for drunken driving, but also for rash and negligent driving as envisaged under Section 279 IPC . The learned counsel for the petitioner would argue that the allegation of rash and negligent driving has its basis on driving under the influence of alcohol, and hence it is not possible to prosecute the petitioner for the offence under , when it is found that the prosecution under Section 185 of the MV Act is not maintainable against him. I am not inclined to accept the above hypothesis canvassed by the learned counsel for the petitioner. This is because of the reason that the ingredients of the offence under are totally distinct from the essential requirements of of the MV Act . The offence under is attracted whenever it is shown that a person was found to have driven a vehicle on any public way in a manner so rash and negligent as to endanger human life, or in a manner likely to cause hurt or injury to any person. The reason for such rash and negligent driving is immaterial as far as is concerned. The cause for rash and negligent driving by an offender can be drunkenness, sleeplessness, lack of concern about the safety of others, or even a feeling of egoistic thrill. But such cause never matters while deciding the question whether the offence under is attracted. Therefore, there is no basis for the argument that, since the rash and negligent driving in the present case wa