A Division Bench of the Allahabad High Court in Shripal Vaish v. U.P. Power Corpn. Ltd. (2009) 4 UPLBEC 3267 held that if a person is not entitled to payment in view of a particular provision, he can not claim parity that under similar circumstances payment is being made to others. The court relied on decision of the apex court in State of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 . In Kameshwar Prasad’s case it was held that:
“ The concept of equality as envisaged under Article 14 of the Constitution is a positive conceptwhich cannot be enforced in a negative manner.When any authority is shown to have committed any illegality or irregularity in favourofany individual or groupofindividualsother cannotclaim the same illegality or irregularity onground ofdenial thereof to them.Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.”
In this regard the Supreme Court inGursharan Singh& Ors.v.NDMC & Ors.[1996 (2) SCC 459] held that citizenshave assumed wrong notions regarding the scopeof Article 14of the Constitution whichguaranteesequality beforelawto all citizens. Benefitsextendedtosome persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14of the Constitution by way of writ petition filed in the High Court.The Court observed:
"Neither Article 14 of the Constitution conceives within theequalityclause this concept nor Article 226empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continueand perpetuate an illegal procedure or anillegal orderforextending similar benefits to others.Beforea claimbasedonequalityclause isupheld, itmustbe establishedby the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur v.DaulatMal Jain & Ors.[1997 (1) SCC 35] thisCourt consideredthe scope of Article 14 of the Constitution and reiteratedits earlier position regarding the conceptof equality holding:
"Sufficeit to hold that the illegal allotmentfounded uponultravires and illegal policy of allotmentmadeto someother persons wrongly, would not form a legalpremise toensureit to the respondent or to repeat orperpetuate suchillegalorder, nor could it be legalised.Inother words,judicial process cannot be abused to perpetuate the illegalities.Thus considered, we hold that the High Court wasclearlyin error in directing the appellants toallot
the land to the respondents."
In Stateof Haryana & Ors v.Ram Kumar Mann[1997 (3) SCC 321] this Court observed:
"Thedoctrineof discriminationisfoundedupon existence of an enforceable right.He was discriminated and deniedequality as some similarly situated persons had been giventhesame relief.Article 14 would applyonly when invidiousdiscriminationismetedoutto equals and similarlycircumstancedwithoutany rationalbasisor relationshipin that behalf.The respondent has noright, whatsoeverand cannot be given the relief wrongly givento them,i.e., benefit of withdrawal of resignation.The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination.If we cannot allow a wrong to perpetrate,an employee, after committing mis-appropriation ofmoney,is dismissed from service and subsequently that orderiswithdrawn and he is reinstated into theservice. Canasimilarly circumstanced person claim equalityunder Section 14 for reinstatement?The answer is obviously "No". Ina converse case, in the first instance, one may be wrong butthewrong order cannot be the foundation forclaiming equalityforenforcementof the same order. Asstated earlier, his right must be founded upon enforceable right to entitle himtotheequality treatmentfor enforcement thereof.A wrong decision by the Government does not give a righttoenforcethe wrong orderandclaimparityor equality.Two wrongs can never make a right."
Whether after the notice issued under clause (b) of Section 138 of the Negotiable Instruments Act,1881 is received by the drawer of the cheque, the payee or holder of the cheque, who does not take any action on the basis of such notice within the period prescribed under Section 138 of the Act, is entitled to send a fresh notice in respect of the same cheque and, thereafter, proceed to file a complaint under Section 138 of the Act?
Above question has been answered in negative by the Supreme Court in CRIMINAL APPEAL NO.46 OF 2010 (@ SPECIAL LEAVE PETITION (CRL) NO.6676 OF 2008), Tameeshwar Vaishnav Vs. Ramvishal Gupta (Decided on 8/1/10) wherein relying on two earlier decisions it has been held that under s 138 , NI Act, the cause of action arises only once. In this case first notice was issued on 22th march 2006 but complaint was not filed within 30 days and subsequently the cheque was again presented and dishonored and fresh notice was issued on 14th June 2006 and on that basis a complint was filed on 10th July 2006. The Supreme Court accepted the argument that when the complainant did not take any action on the basis of the first notice a second notice in regard to the self-same cheque was barred under the proviso to Section 138 of the Act. In Sadanandan Bhadran vs. Madhavan Sunil Kumar [(1998) 6 SCC 514], it was held that the cause of action to file complaint on non-payment despite issue of notice, arises but once. Another cause of action would not arise on repeated dishonour on re-presentation. It was also held that while the payee was free to present the cheque repeatedly within its validity period, once notice had been issued and payments not received within 15 days of the receipt of the notice, the payee has to avail the very cause of action arising thereupon and file the complaint. Dishonour of the cheque on each re-presentation does not give rise to a fresh cause of action. This view was reiterated in Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4 SCC 417].
Following above decisions in Tameeshwar case (supra) the Supreme Court held that:
“The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c) provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed.”
The Supreme Court hald that : “In the instant case, it is clear that the fresh (sic) notices were received by the Appellant on 14th June, 2006, whereas the complaints were filed on 10th July, 2006. It must, therefore, be held that the complaints were filed beyond the period of limitation and the learned Magistrate erred in taking cognizance on the complaints filed on the basis of the second notices issued on 7th June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate.”
In SPECIAL APPEAL No.1942 of 2008 Sheet Gupta v. State Of U.P. & Others decided on 11/12/2009,the Full Benchof Allahabad High Court resolved the controversy regarding maintainability of Special Appeal (Letters Patent Appeal or Intra-Court Appeal ) against a judgment of single judge of the High Court. The question was referred to Full Bench as there were two contradictory decisions of coordinate two judge benches. The referred question was as under:
"Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?"
Laying down general rules regarding maintainability of Special Appeal the Full Bench held that :
“from the perusal of Chapter VIII Rule 5 of the Rules of Allahabad High Court, a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1.The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2.the order made by one Judge in the exercise of revisional jurisdiction;
3.the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4.the order made by one Judge in the exercise of criminal jurisdiction;
5.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator
made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."
Answering the referred question the Full Bench held that: “---- the Essential Commodities Act, 1955 is a Central Act referable to Entry 33 of the Concurrent List in the Seventh Schedule to the Constitution of India. ---In the present case, we find that the Commissioner had exercised powers conferred under Clause 28 of the Distribution Order, 2004, which order has been passed under the provisions of the Act, therefore, the appellate power has been exercised under the Act and, thus, no special appeal would lie. It may be mentioned here that right of an appeal is a statutory right and not a vested right and can be hedged by conditions as held by the Apex Court in the cases of Smt. Ganga Bai[1]and Vijay Prakash & Jawahar. [2]"
[1]Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126.
[2]Vijay Prakash D. Mehta and Jawahar D. Mehta vs. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010
Penal provisions to combat road accidents can be found in following three enactments:
(i)Indian Penal Code, 1860
(ii) Motor Vehicles Act, 1988
(iii) National Highways Act, 1956
(i) IndianPenal Code, 1860
Sections 279, 304A, 336, 337, 338, IPC are deal with cases of road accidents . These provisions are as under:
Section 279. Rash driving or riding on a public way. “Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
Section 304A. Causing death by negligence. “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Section 336. Act endangering life or personal safety of others. “Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and
fifty rupees, or with both.”
Section 337. Causing hurt by act endangering life or personal safety of others. “Whoever causes hurt to any person by doing anyact so rashly or negligently as to endanger human life, or thepersonal safety of others, shall be punished with imprisonment ofeither description for a term which may extend to six months, orwith fine which may extend to five hundred rupees, or with both.”
Section 338. Causing grievous hurt by act endangering life or personal safety of others. “Whoever causes grievous hurt to anyperson by doing any act so rashly or negligently as to endangerhuman life, or the personal safety of others, shall be punished withimprisonment of either description for a term which may extend totwo years, or with fine which may extend to one thousand rupees,or with both.”
*****
Rash or negligent act is an ingredient in all the above sections. A rash act is primarily an overhasty act, opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness, the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. Negligence means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent or reasonable man would not do. Culpable negligence is acting without consciousness that illegal or mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent on him, and that if he had, he would have had the consciousness. Generally, in the case of rashness, the guilty person does an act and breaks a positive duty; in the case of negligence, he does not do an act which he was bound to do, because he adverts not to it. ‘Rashness’ conveys the idea of recklessness or the doing of an act without due consideration; ‘negligence’ connotes want of proper care or
the standard of conduct which a reasonably prudent person would exercise in a similar situation.
To be guilty of an offence under section 279, IPC the accused must drive a vehicle in such a rash or negligent manner as to endanger human life or to be likely to cause hurt or injury to any other person. Driving at a high speed or non-sounding of horn by itself does not mean that the driver is rash or negligent. Place, time, traffic and crowd are important factors to determine rashness or negligence.
Section 304A, which was inserted in the IPC by Act 25 of 1870, postulates a rash and negligent act entailing death of another. The provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death; it should not amount to culpable homicide. Section 304A is directed at offences outside the range of sections 299 and 300, IPC.[1]
Section 279 covers only those cases which relate to driving on public way endangering human life, while offence under section 304A extends to any rash or negligent act falling short of culpable homicide.
Rash and negligent acts which endanger human life, or the personal safety of others, are punishable under section 336 even though no harm follows, and are additionally punishable under sections 337 and 338 if they cause hurt, or grievous hurt. Element of volition or intention is foreign to the set of offences under sections 336 to 338, IPC. Offences defined by these sections as well as section 279 are minor offences in comparison with the offence under section 304A where death is caused by a rash or negligent act.
Recently, the Supreme Court has observed that if a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act would amount to culpable homicide.[2]
Dealing with sentencing of a convict for offences under sections 279 and 304A, IPC, the Supreme Court in Dalbir Singh v. State ofHaryana [3] held:
“When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
…
13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of
Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.”
In Rattan Singh v. State of Punjab [4], the Supreme Court had held:
“5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the
punishment is for driving offences.”
Recently, the Supreme Court upheld the sentence of imprisonment awarded to the driver of a bus convicted for offences under sections 279 and 304A, IPC, following the above dicta.[5]
(ii) Motor Vehicles Act, 1988
The Motor Vehicles Act, 1988 (MVAct) is the principal instrument for regulating motor vehicles. Chapter II relates to licensing of drivers of motor vehicles, wherein section 19 confers power on the licensing authority to disqualify any person from holding a driving licenceor revoke such licence, if he -
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance; or
(c) is using or has used a motor vehicle in the commission of a cognizable offence; or
(d) has, by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or
(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or
(f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or
(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of Section 22; or
(h) being a person under the age of eighteen years who has been granted a learner’s licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care.
Section 20. Power of Court to disqualify. “(1) Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, the Court by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorized by law, declare the person so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence: Provided that in respect of an offence punishable under section 183 no such order shall be made for the first or second offence.
(2) Where a person is convicted of an offence under clause (c) of sub-section (1) of section 132, section 134 or section 185, the Court convicting any person of any such offence shall order the disqualification under sub-section (1), and if the offence is relatable to clause (c) of sub-section (1) of section 132 or section 134, such disqualification shall be for a period of not less than one month, and if the offence is relatable to section 185, such disqualification shall be for a period of not less than six months.
(3) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person,-
(a) who having been convicted of an offence punishable under section 184 is again convicted of an offence punishable under that section;
(b) who is convicted of an offence punishable under section 189; or
(c) who is convicted of an offence punishable under section 192:
Provided that the period of disqualification shall not exceed, in the case referred to in clause (a), five years, or in the case referred to in clause (b), two years or, in the case referred to in clause (c), one year.
(4) A Court ordering the disqualification of a person convicted of an offence punishable under section 184 may direct that such person shall, whether he has previously passed the test of competence to drive as referred to in sub-section (3) of section 9 or not, remain disqualified until he has subsequent to the making of the order of disqualification passed that test to the satisfaction of the licensing authority.
….”
Section 21. Suspension of driving licence in certain cases.
“(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended,-
(a) for a period of six months from the date on which the case is registered; or
(b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be.
….”
Section 22. Suspension or cancellation of driving licence on conviction.
“(1) Without prejudice to the provisions of sub-section(3) of section 20, where a person, referred to in sub-section (1) ofsection 21, is convicted of an offence of causing, by suchdangerous driving as is referred to in section 184 of any class ordescription of motor vehicle, the death of, or grievous hurt to, oneor more persons, the Court by which such person is convicted maycancel, or suspend, for such period as it may think fit, the drivinglicence held by such person in so far as it relates to that class ordescription of motor vehicle.
(2) Without prejudice to the provisions of sub-section (2) of section 20, if a person, having been previously convicted of an offence punishable under section 185, is again convicted of an offence punishable under that section, the Court, making such subsequent conviction, shall, by order, cancel the driving licence held by such person.
….”
Section 23. Effect of disqualification order. “(1) A person in respect of whom any disqualification order is made under section 19 or section 20 shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall cease to be effective to such extent and during such period.
….”
Chapter VIII of the MVAct deals with the control of traffic. Section 112 pertains to limits of speed and prohibits driving of a motor vehicle or it being allowed to be driven in any public place at a speed exceeding the maximum permissible speed. Rule 118 of the Central Motor Vehicles Rules, 1989 provides for notified transport vehicles to be fitted with a speed governor in such a manner that the speed governor can be sealed with an official seal in such a way that it cannot be removed or tampered with without the seal being broken.
Section 113 provides for limits of weight and limitations on use. Section 118 confers power on the Central Government to make regulations for the driving of motor vehicles. Accordingly, the Rules of the Road Regulations, 1989 have been made. Section 119 provides for the duty to obey traffic signs. Section 129 provides for the wearing of helmets. Various other provisions are contained in Chapter VIII for regulation of traffic.
The Rules of the Road Regulations, 1989 contain detailed provisions regulating driving of motor vehicles, like keeping left, overtaking prohibited, caution at road junction, right of way to pedestrians, signals to be given by drivers, parking, visibility of lamps and registration marks, lane driving, respecting stop sign on road surface, distance from vehicles in front, no abrupt brake except for safety reasons, no projection of loads, non-carriage of dangerous substances on any public service vehicle, restriction on driving backwards, carrying of documents, viz., driving licence, certificate of registration, certificate of insurance of the vehicle and in case of transport vehicle the permit and
fitness certificate also.
Chapter XIII of the MVAct relates to offences, penalties and procedure. Section 177 contains the general provision for punishment of offences, which is available in the absence of any specific provision for punishment applicable in a given case; the punishment is a maximum fine of Rs. 100/- for the first offence and for the subsequent offence it is only Rs. 300/-. Section 183 provides the punishment for contravention of the speed limits referred to in section 112. Section 184 provides for punishment for dangerous driving and section 185 for driving by a drunken person or a person under the influence of drugs. These sections read as under:
Section 184. Driving dangerously. “Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, 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 one thousand rupees, and for any second or subsequent offence, if committed within three years of the commission of a previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees,
or with both.”
Section 185. Driving by a drunken person or by a person under
the influence of drugs. “Whoever, while driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer, or
(b) is under this influence of 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 to three thousand rupees, or with both.
Explanation.- For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”
Section 184 deals with reckless driving dangerous to the public having regard to all the circumstances of the case. Offence defined under section 184 and the offence under section 279, IPC are essentially the same. No person is supposed to drive a motor vehicle on any public way in a manner which may endanger human life or is likely to cause hurt or injury to any other person. The law casts a duty on every user of the road
or public way to exercise due care and caution while driving a motor vehicle. The amount of care and caution required to be exercised by a driver while driving on a public way would, of course, depend upon the situation and circumstances in which he is driving. The doctrine of contributory negligence has no application in criminal law. Contributory
negligence may be a factor for consideration in determining the sentence, but it is not a defence entitling the accused to an acquittal.
Certain other provisions of Chapter XIII providing punishments are:
s. 180: allowing unauthorized persons to drive vehicles;s. 181: driving vehicles in contravention of section 3 (necessity for driving licence) or section 4 (age limit in connection with driving of motor vehicles); s. 182: offences relating to licences; s. 182A: offences relating to construction and maintenance of vehicles; s. 186: driving when mentally or physically unfit to drive; section 187: offences relating to accident; s.188: abetment of offence unders. 184, 185 or 186; s. 189: racing and trials of speed; s.190: using vehicle in unsafe condition; s. 191: sale of vehicle in, oralteration of vehicle to, a condition contravening the Act; s. 192:using vehicle without registration; s. 192A: using vehicle withoutpermit; section 193: agents and canvassers acting without proper authority; section 194: driving vehicle exceeding permissible weight; section 196: driving uninsured vehicle; s. 197: taking vehicle without authority; s. 198: unauthorized interference with vehicle; s. 201: causing obstruction to free flow of traffic. S. 207 confers power on any police officer or other person authorized in thisbehalf to seize and detain a motor vehicle, if he has reason to believe thatit has been or is being used in contravention of the specified provisions,posing a serious threat to the public.
(iii) National Highways Act, 1956
Section 8B of the National Highways Act, 1956, which provides that whoever commits mischief by doing any act which renders or which he knows to be likely to render a national highway in relation to whose development and maintenance there is an agreement, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may
extend to five years, or with a fine, or with both.
There is a debate as to who was the first Law maker of the world. In Sanatan Dharma , Manu is commonly referred as first. But, a few scholars say that Manu had reproduced the rules made by Bhrigu. The last verse of Manusmriti itself referres Bhrigu and says that what have been taught in it was told earlier by Bhrigu .
In this regard I would submit my conclusion as under:
1. There are inferences by scholars that many verses in Manusmriti might have been subsequently added to the original script. Even there may have been manipulation by biased scholars with a view to override the religious practices preferred by their rival pandits. Therefore the possibility of addition of one verse at the end of the text can not be ruled out . The text that I have with me is published by “Thakur Prasad Book sellers” who are a popular publishers ofVaranasi. There may be some difference in other publications.
2.All the puranas and other epics unanimously refer the manu as first and principal creator of manav shastra or dharm shastra.
3. In sanatan dharma no one is first. There is a cycle ofhappenings and exploration of knowledge. All the scriptures authored by Badrayan ( = Krishna dvaipayan = Vedvyas ) are compilations of pre-existing knowledge and stories. But, He is known as the author of 18 purans and several other epics. In Geeta, Krishna himself said that he is exploring the pre-existing knowledge and there is nothing new in his teachings.But, Geeta and it’s principles are identified with Krishna. Patanjali was also compiler of the principles of yoga – the practices taught by him were practiced earlier to him - Hiranyagarbh can be referred as original acharya of yoga . But, yoga shastra is identified with Patanjali
4.Similarly manu would have been first compiler of rules of ethical tradition and there may have been many earlier rulers and rishis including Bhrigu who would have made rules according to needs of the time.
Section 35B of CPC deals with costs for causing delay. Relevant portion of the said section extracted below :
"35B. Costs for causing delay. - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit--
(a) fails to take the step which he was required by or under this Code to take on that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,
the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of--
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,
(b) the defence by the defendant, where the defendant was ordered to pay such costs.
----------------------------"
Thus, section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff. If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the Legislature would have said so. On the other hand, Legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law. With the above observations the Supreme Court in CIVIL APPEAL NO. 7554-7555 OF 2009 Manohar Singh v. D. S. Sharma & Anr. Decided on 13/11/2009, rejected the contention of the that section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff.
The Supreme Court also discussed some incidental and related provisions and said that when section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC. Having regard to the scheme and object of section 35B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under section 35B were itself levied for causing delay.
Referring to the provisions of Rule 1 of Order XVII of CPC which deals with grant of time and adjournments, the Court observed that it is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination. But where a genuine and bona fide request is made for adjourment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs.
Thus the Supreme Court held that “a conspectus of the above provisions clearly demonstrates that under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross- examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.
In this case, the supreme court observed that “the plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff's right to cross-examine DW2 stood forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit.” In view of the above, the Supreme Court allowed the appeals and set aside the judgments of the High Court and the trial court and restored the suit to its file, subject to the following :
“ (i) The right of the plaintiff to cross-examine DW2 stands forfeited and he is barred from prosecuting the suit further.
(ii) The trial court shall however permit the defendants to let in any further evidence, hear arguments and then dispose of the suit.
(iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 CPC, the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2.”
