शनिवार, 27 मार्च 2010

112. Jurisdiction of BFIR vis a vis High Court

Sick Industrial Companies (Special provisions) Act, 1984 (SICA) has overriding effect when there arises a question of jurisdiction of BFIR under SICA vis a vis the High Court under s 391 of companies Act.
In Tata Motors Ltd v. Pharmaceutical Products of India Ltd. & Anr
2008 AIR 2805, 2008(9 )SCR267 , 2008(7 )SCC619 , 2008(9 )SCALE262 , 2008(9 )JT227, the respondent being unable to pay the dues made a reference in terms of Section 15 of SICA before the Board for Industrial and Financial Reconstruction (BIFR). The BIFR passed an order recommending winding up of the respondent. An appeal was preferred there against before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR).

Respondent, however, filed an application before the High Court of Judicature at Bombay purported to be in terms of Section 391 of the 1956 Act during the pendency of the said appeal. Scheme proposed by the respondent was approved by the single judge as well as in intra court appeal .

The Supreme Court held that:

‘SICA furthermore was enacted to secure the principles specified in Article 39 of the Constitution of India. It seeks to give effect to the larger public interest. It should be given primacy because of its higher public purpose. Section 26 of SICA bars the jurisdiction of the Civil Courts.

What scheme should be prepared by the operating agency for revival and rehabilitation of the sick industrial company is within the domain of BIFR. Section 26 not only covers orders passed under SICA but also any matter which BIFR is empowered to determine.
The jurisdiction of civil court is, thus, barred in respect of any matter for which the appellate authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited. Section 15 of SICA provides for making reference by the Board of Directors of the Company on becoming an industrial company, a sick industrial company, to the Board for determination of the measures to be adopted with respect to the company. Section 16 provides for making inquiry into the working of sick industrial company by the Board after receiving reference.

Section 17 of SICA provides for powers of Board to make suitable order on the completion of inquiry. Section 18 thereof provides for preparation and sanction of Scheme. Section 19 provides for rehabilitation by giving financial
assistance. According to sub section (1), Where the scheme relates to preventive, ameliorative, remedial and other measures with respect to any sick industrial
company, the scheme may provide for financial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifices from the Central Government, a State Government, any scheduled bank or other bank, a public financia institution or State level institution or any institution or other authority (any Government, bank, institution or other authority required by a scheme to provide for such financial assistance being hereafter in this section referred to as the person required by the scheme to provide financial assistance) to the sick industrial company.

The supreme court held that :
“The provisions of a special Act will override the provisions of a general Act. A later of it will override an earlier Act. 1956 Act is a general Act. It consolidates and restates the law relating to companies and certain other associations. It is prior in point of time to SICA.
……… Wherever any inconstancy is seen in the provisions of the two Acts, SICA would prevail. SICA furthermore is a complete code. It contains a non-obstante clause in Section 32.
……..SICA is a special statute. It is a self contained Code. The jurisdiction of the Company Judge in a case where reference had been made to BIFR would be subject to the provisions of SICA.”


In NGEF Ltd. vs. Chandra Developers (P) Ltd. : (2005) 8 SCC 219 (see also, Morgan Securities and Credit Pvt. Ltd. v. Modi Rubber Ltd. [AIR 2007 SC 683), in regard to the jurisdiction of the Company Court it was held :-
"39. The provisions of SICA contain non obstante clauses. It is a special statute. It is a complete code in itself. The jurisdiction of the Company Court in such matters would arise only when BIFR or AAAIFR, as the case may be, has exercised its jurisdiction under Section 20 of SICA recommending winding up of the Company upon arriving at a finding that there does not exist any chance of revival of the Company."

It was further held:
The satisfaction arrived at by BIFR that the Company is not likely to become viable in future and it is just and equitable that the Company should be wound up must be based on objective criteria. The High Court indisputably on receipt of such recommendation of BIFR would initiate a proceeding for winding up in terms of
Section 433 of the Companies Act. Sub-section (2) of Section 536 ipso facto does not confer any jurisdiction upon the Company Court to direct sale of the assets of the sick company. It has to exercise its power thereunder subject to the provisions of the special statute governing the field. Despite the fact that the procedures laid down under the Companies Act would be applicable therefore but they must be read with sub-section (4) of Section 20 of SICA which contains a non obstante clause and in
terms thereof, BIFR is authorised to sell the assets of the sick industrial company in such a manner as it may dee fit. By reason of the said provision, BIFR is also empowered to forward the sale proceeds to the High Court for orders for distribution in accordance with Section 529-A and other provisions of the Companies Act which in no uncertain terms would mean that the distribution of the sale proceeds would be for the purpose of meeting the claims of the creditors in the manner laid down therein. The intention of Parliament in enacting the said provision becomes clear as in terms of Section 22-A of SICA, BIFR is empowered to issue any direction in the interest of the sick industrial company or its creditors or shareholders and direct the sick industrial company not to dispose of its assets except with its assent. Section 32, contains a non obstante clause. The scheme suggests that BIFR retains control over the assets of the Company and in terms of the aforementioned provisions may either sick industrial company. Such a power in BIFR remains till a winding-up order is passed by the High Court and a stage arrives for the High Court for issuing orders for
distribution of the sale proceeds.
………SICA was furthermore enacted subsequent to the provisions of the Companies Act. It is not, thus, possible to accept the submission that the High Court exercises a concurrent jurisdiction."

It was ruled that the Company Court and the BIFR do not exercise concurrent jurisdiction. It was held that: It may be true that the High Court's jurisdiction is that of the Appellate Authority but keeping in view the terminology contained in sub- section (4) of Section 20 read with Section 32 of the Act, it leaves no manner of doubt that the provisions of SICA shall prevail over the provisions of the Companies Act. For the aforementioned purpose, it was not necessary for Parliament to mention specifically the provisions of sub-section (4) of Section 20 that the same shall prevail over Section 536 of the Companies Act…..”

“BIFR admittedly had the power to sell the assets of the Company but the High Court until a winding-up order is issued does not have the same.”

In Bombay Dyeing & Manufacturing Co. Ltd. vs. Bombay Environmental Action
Group : (2006) 3 SCC 434 It was held that:
“13. The 1993 Act was enacted to provide for and regulate the payment of interest on delayed payments to small-scale and ancillary industrial undertakings and for matters connected therewith.
14. The provisions of the 1993 Act, therefore, do not envisage a situation where an industrial company becomes sick and requires framing of a scheme for its revival.
15. It is no doubt true that an award in relation to a claim of a small-scale industry if made by the Council would be governed by the provisions of the Arbitration and Conciliation Act, 1996 .”

In Damji Valli Shah v. Life Insurance Corporation of India, [(1965) 2 SCR 665 ], the question which arose for consideration was as to whether a similar provision made in the Life Insurance Corporation Act, 1956 shall bar the jurisdiction of the Company Court in terms of Section 446 (1) of the Companies Act. Referring to Section 41 of the Life Insurance Corporation Act, 1956 it was stated that the Tribunal constituted under the LIC Act will have exclusive jurisdiction.
प्रस्तुतकर्ता पर कोई टिप्पणी नहीं:

शनिवार, 6 मार्च 2010

111. Cancellation of petrol pump dealership- prier notice of test is mandatory

Case - M/s Hindustan Petroleum Corpn. Ltd. & Ors v. M/s Super Highway Services & Anr. decided on 19/02/2010


An inspection of petrol pump was made and dealership was cancelled on the ground that high speed diesel was found contaminated. The High allowed the writ petition of the on the ground that notice of the Laboratory Test to be conducted at the Barauni Terminal had not been served upon thepetitioner, which has caused severe prejudice to him since its dealership agreement was terminated on the basis of the findings of such Test. Admittedly the dealership agreement was terminated on the ground that the product supplied by the petitioner corporation was contaminated by the respondent. Such contamination was sought to be proved by testing the T.T. retention sample in the laboratory at Barauni Terminal.

Dismissing the SLP of the Corporation the Supreme Court held that : “The Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. In the present case, there is no admissible evidence to prove service of notice on the respondent or refusal of notice by the respondent. Further, the notice dated 28.05.2008 which was allegedly refused by respondent, did not give him adequate time to arrange for the presence of himself or his representative during the test to be conducted at 3.00 PM on 29.05.2008. It is also to be noted that the endorsement regarding the alleged refusal is dated 29.05.2008 itself. Thus, the termination of the dealership agreement of the respondent was arbitrary, illegal and in violation of the principles of natural justice.”
प्रस्तुतकर्ता पर 1 टिप्पणी:

शनिवार, 13 फ़रवरी 2010

110. Principle of negative equality

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 concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial 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 in Gursharan Singh & Ors. v. NDMC & Ors. [1996 (2) SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:

"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by 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. Daulat Mal Jain & Ors. [1997 (1) SCC 35] this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:

"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot

the land to the respondents."

In State of Haryana & Ors v. Ram Kumar Mann[1997 (3) SCC 321] this Court observed:

"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to 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 of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."

प्रस्तुतकर्ता पर कोई टिप्पणी नहीं:

शनिवार, 16 जनवरी 2010

109. NI Act - Limitation starts from first notice

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.”
प्रस्तुतकर्ता पर 1 टिप्पणी:

सोमवार, 4 जनवरी 2010

List of legal articles by Dr. V.N. Tripathi

115. Compounding of offences u/s 138, NI Act

114. Restoration of criminal complaints on the line of civil suit

113. Disposal of seazed vehicles

112. Jurisdiction of BFIR vis a vis High Court

111. Cancellation of petrol pump dealership- prier notice of test is mandatory

110. Principle of negative equality

109. NI Act - Limitation starts from first notice

108. LIST / INDEX

107. Special Appeal in Allahabad High Court - when not maintainable

106. Penal provisions relating to road accidents
105. First Law maker of the world
104. The Court can not dismiss the suit when plaintiff fails to pay the costs
103. Shifted to other subject
102. --- do -----
101. --- do -----
100. --- do -----
99. Divorce in U.K. – Basic rules (2)
98. Divorce in United Kingdom - Basic rules (1)
97. Jurisdiction of Civil Court in labor matters - when not barred.
96. Insurer is not liable if DL expired
95. Writ of mandamus - some guide lines
94. Dissolution of unregistered firm
93. Right to water
92. Age in view of amendments in Juvenile Justice Act
91. s. 138,N.I.Act - when drower says cheque was lost
90. 'Post' and 'vacancy'
89. Sentencing - Provocation, a relevant consideration
88. Family law self help center
87. Precedents- some guidelines
86. Important points regarding s.138, NI Act
85. Remand of accused on change of investigating agency
84. Conditional legislation and delegated legislation
83. Blood test in paternity dispute
82. Fraud/cheating - simultanious civil and criminal case
81. 304 B, IPC - cruelty soon before death
80. MV Act- Compensation amount on death of children
79. Transplantation of human organs
78. Investigation by unauthorised officer
76. Supreme court's jurisdiction - general information
75. Final report and charge sheet
74. High Courts in India
73. Protest petition - a practice, not statutory rule
71. A concubine,whether can be prosicuted for u/s 498-A, IPC ?
70. Ad-hoc period - whether to be included in length of service
69. Applicability of limitation Act in Excise matters
68. Different standard of evidence at different stages of trial
67. Art. 161 c.f. Art. 72 in cases of death sentence
66. Transparency and accountability in a statute
65 Argument beyond pleadings
64 State Judicial Service - who is empowered to frame rules?
63 Welfare statutes
62 Will - Disinheritance of heirs of equal degree
61 Option between Ss. 163 – A and 166 of M.V. Act
60 Criminal prosecution of Company - Changing judicial views.
59 Evidence of defense at the stage of charge
58 Difference between inquiry officer and disciplinary authority
57 Interest under Land Acquisition Act
56 Territorial jurisdiction of High Court
56 Limitation Act – Art.58 v. Art. 113
54 Evidentiary value of certified copy of sale deed
53 quashing of FIR because of cross cases
52 Judicial interference in police investigation
51 Standard of proof at the stage of summoning order
50 Quashing of FIR when dispute is of civil nature
49 Inquest report - Object and scope
48. s. 156 (3) CrPC- Prospective accused has no standing
प्रस्तुतकर्ता पर कोई टिप्पणी नहीं:

107. Special Appeal in Allahabad High Court - when not maintainable

In SPECIAL APPEAL No.1942 of 2008 Sheet Gupta v. State Of U.P. & Others decided on 11/12/2009, the Full Bench of 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

प्रस्तुतकर्ता पर 2 टिप्‍पणियां:

मंगलवार, 24 नवंबर 2009

106. Penal provisions relating to road accidents

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) Indian Penal 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 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 six months, or with 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 any person by doing 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 two 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 of Haryana [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 licence or 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) of section 21, is convicted of an offence of causing, by such dangerous driving as is referred to in section 184 of any class or description of motor vehicle, the death of, or grievous hurt to, one or more persons, the Court by which such person is convicted may cancel, or suspend, for such period as it may think fit, the driving licence held by such person in so far as it relates to that class or description 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, or alteration of vehicle to, a condition contravening the Act; s. 192: using vehicle without registration; s. 192A: using vehicle without permit; 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 this behalf to seize and detain a motor vehicle, if he has reason to believe that it 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.

-----------------------------------------------------------------

1Naresh Giri v. State of M.P. 2007(13) SCALE 7 : (2008) 1 SCC 791

2 Ibid.

3 (2000) 5 SCC 82

4 Rattan Singh v. State of Punjab (1979) 4 SCC 719

5 B. Nagabhushanam v. State of Karnataka 2008 (7) SCALE 716

प्रस्तुतकर्ता पर कोई टिप्पणी नहीं:
सदस्यता लें संदेश (Atom)