K.V.Abraham v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934** **Crl.Rev.Pet.No. 186 of 2004 (C)** **------------------------------CRA.359/2003 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM CC.767/2001 of J.M.F.C.,KOTTAYAM** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **K.V.ABRAHAM, S/O. VARKEY,** **KANNAMBADOM HOUSE, THOTTAPPALLY BHAGOM, VELLOORKARA PAMPADY.** **BY ADV. SRI.K.M.VARGHESE** ## **COMPLAINANT(S)/RESPONDENT/COMPLAINANT::** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SRI.BIJU MEENATOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** S.SIRI JAGAN, J. ================== Crl.R.P.No. 186 of 2004 ================== Dated this the 7[th] day of November, 2012 **==> picture [68 x 11] intentionally omitted <==** The accused in C.C.No.767/2001 before the Judicial First Class Magistrate's Court-I, Kottayam is the petitioner in this Criminal Revision Petition. He was prosecuted for offences punishable under Sections 184 and 185(a) of the Motor Vehicles Act. 2. The prosecution case was as follows:- On 11.8.2001 at about 7.45 p.m., the accused was driving autorickshaw bearing registration No.KL 5/G 692 in a dangerous manner, while he was in a drunken state, along the Meenadom-Pampady public road, which was detected by CW4 at Manjadikavala. Thus, the petitioner committed the offences alleged against him. 3. The prosecution examined PWs 1 to 4 and marked Exts.P1 to P4 documents. The defence did not adduce any evidence. After considering the evidence, the Magistrate found the petitioner guilty of the offences punishable under Sections 184 and 185(a) of the Motor Vehicles Act and sentenced him to undergo simple imprisonment for a period of two months under Crl.R.P.186/04 - : 2 :- Section 184 of the Motor Vehicles Act and to undergo simple imprisonment for a period of two months under Section 185(a) of the Motor Vehicles Act. The sentences were directed to be undergone concurrently. The petitioner filed Crl.Appeal No.359/2003 before the Additional Sessions Judge (Special), Kottayam. The Additional Sessions Judge dismissed the appeal. The petitioner is challenging the judgments of the courts below. 4. The petitioner raises the following contentions. The first is that the entire prosecution is vitiated for non-compliance with the mandatory procedure prescribed under Section 155(2) of the Cr.P.C., insofar as, before initiating prosecution in noncognisable offences, which the offences in this case, the police did not obtain an order from the concerned Magistrate, which is mandatory. The petitioner relies on the decision of this Court in **Mehaboob V. State,** 2011 (2) KLT 236. The second is that the prosecution failed to prove the ingredients of the offences. According to the petitioner, for finding the petitioner guilty under Section 184, 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 Crl.R.P.186/04 - : 3 :- be in the place has also to be proved, which has not been done in this case. For conviction under Section 185, the prosecution has to prove that the blood sample of the petitioner contained alcohol exceeding 30mg/100 ml. of blood, which has not been proved in this case. It is further submitted that there is no clear evidence to prove that the petitioner was under the influence of liquor to such an extent as to be incapable of exercising proper control over the vehicle. It is pointed out that the blood sample of the petitioner has not been tested for alcohol. It is further submitted that under Section 209 of the Motor Vehicles Act, for conviction under Section 184, the petitioner should have been warned at the time of commission of the offence that the question of prosecuting him would be taken into consideration, which has not been done. 5. The learned Public Prosecutor would contend that none of the grounds raised by the petitioner is sustainable in law. He relies on the judgment of this Court in Crl.R.P.No.102/2003, wherein this Court had considered the question of validity of a conviction for a non-covnisable offence for not complying with the mandatory procedure under Section Crl.R.P.186/04 - : 4 :- 155(2) of the Cr.P.C. He points out that in that decision, this Court has categorically held that the question of prosecution being vitiated for want of compliance with Section 155(2) in a non-cognisable case does not arise after the trial is completed without noticing the illegality and the application of that Section would arise only if the accused points out the said illegality during the trial itself. He points out that the decision in **Mehaboob's case** (supra) was in a case, where the illegality was brought to the notice of the court at the time of trial itself. The learned Public Prosecutor points out that the petitioner's blood sample could not be tested only because the petitioner was not willing to provide a blood sample, which has been specifically stated by the witnesses as well as in Ext.P2 certificate issued by the doctor, who examined the petitioner. According to him, in such a case, Section 205 of the Motor Vehicles Act comes into play, which has been applied by the courts below. He submits that the ingredients of Sections 184 and 185 have been fully satisfied in this case. He submits that the very object of taking the petitioner to the doctor for examination and asking him to give a blood sample itself shows that the petitioner had been Crl.R.P.186/04 - : 5 :- duly warned about the possibility of him being prosecuted under Section 184 and, therefore, the stipulation in Section 209 has been fully complied with. He points out that, for attracting an offence under Section 185(a), it is not necessary that the driver should be under the influence of alcohol, but it would be sufficient if in his blood, alcohol exceeding 30 m.g. per 100 ml. is detected. In this case, since the petitioner refused to give his blood sample, Section 205 is attracted and, therefore, it must be presumed that had the petitioner given his blood sample for analysis, that would have incriminated him. 6. I have considered the rival contentions in detail. 7. As far as the first contention is concerned, that question was elaborately considered by me in Crl.R.P.No. 102/2003 and I have come to the conclusion that after trial, acquittal on the ground of want of compliance with the procedure prescribed under 152(2) does not arise unless failure of justice is proved by the accused on account of such noncompliance. In that decision, I have specifically adverted to the decision quoted by the petitioner and also other decisions including decisions of the Supreme Court, wherein it has been Crl.R.P.186/04 - : 6 :- specifically held that if the violation of the procedure prescribed under Section 155 is not brought to the notice of or adverted to by the Magistrate at the stage of trial and the trial is concluded, that trial cannot be said to be vitiated on account of defect in the investigation precedent to trial, since such defect could be cured by S.463 of the new Code, unless failure of justice has been occasioned thereby. Therefore, for holding that the trial is vitiated for want of compliance with Section 155(2) of the Crl.P.C., the petitioner will have to necessarily prove that, on account of procedural violation, failure of justice has been occasioned. Here, no prejudice whatsoever has been caused to the petitioner on account of non-compliance with Section 155(2). The petitioner did not raise that contention before the courts below and the trial was concluded without the Magistrate having been appraised of the illegality of the matter or without the Magistrate adverting to the same. That being so, going by the decision quoted above, the trial cannot be held to be vitiated. Therefore, there is no merit in the first contention of the petitioner. 8. I am fully satisfied that the ingredients of Sections Crl.R.P.186/04 - : 7 :- 184 and 185(a) are fully satisfied in the action of the petitioner. The petitioner did not seriously contest the allegation that he was driving the vehicle after consuming alcohol. The witnesses examined have given evidence to the effect that he was driving the vehicle in a zig-zag manner, without control, in a public road, which was likely to cause danger to the public. In fact, a learned Judge of this Court has held in **Abraham Varghese v State of Kerala** , 1987 (2) KLT 840, that drunkenness by itself constitutes rashness in driving the vehicle. When the petitioner was asked to give his blood sample for analysis, he refused to give the same, which is clear from the evidence of the Inspector and the doctor. It has been specifically stated so in Ext.P2 certificate issued by the doctor also. That being so, it is clear that the petitioner refused to give blood sample only because if he gives blood sample, the result would be against him. Therefore, the provisions of Section 205 of the Motor Vehicles Act are attracted in the petitioner's case. The very fact that the petitioner had been taken to the doctor for medical examination and he was asked to give a blood sample themselves would go to show that the petitioner was warned at the time of commission of the Crl.R.P.186/04 - : 8 :- offence that the question of prosecuting him would be taken into consideration. In the above circumstances, I do not find any merit in any of the contentions of the petitioner. 9. The learned counsel for the petitioner makes a fervent plea for reducing the sentence. I do not find any reason to hold that the punishment imposed on the petitioner is excessive in the facts and circumstances of the case. In the above circumstances, this Criminal Revision Petition is dismissed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge