Manoj vs State Of Kerala on 16 March, 2010

Kerala High Court

Manoj vs State Of Kerala on 16 March, 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 633 of 2010()

1. MANOJ, S/O. BALAKOMALAN,

... Petitioner
Vs

1. STATE OF KERALA, REPRESENTED BY

...
Respondent
For Petitioner

:SRI.S.RAJEEV

For Respondent

:PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :16/03/2010
O R D E R
M.Sasidharan Nambiar, J.
-------------------------Crl.M.C.No.633 of 2010
-------------------------ORDER

Petitioner, the accused in S.T.No.546/2005 on the file of Judicial First Class Magistrate's Court-II,
Ernakulam, filed this petition under Section 482 of Code of Criminal Procedure to quash the
cognizance taken for the offences under Sections 184 and 185 of Motor Vehicles Act on Annexure-III
final report. Prosecution case is that on 31.7.2004 at about 9.30 p.m., petitioner was found driving
motor cycle KL-7/AF 6435 in a zig-zag manner, along Banerji Road, Ernakulam under the influence
of alcohol and thereby committed the offences.
2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.
3. Argument of the learned counsel is that Annexure-II Certificate of Drunkenness issued by the
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Manoj vs State Of Kerala on 16 March, 2010

Doctor establishes that there was only smell of alcohol and petitioner was not under the influence of
alcohol and in the absence of any evidence to prove that he was either under the influence of alcohol
or at that time percentage of alcohol in his blood exceeded 30 mg./100 ml., he cannot be prosecuted
for the offence under Section 185 of Motor Vehicles Act and therefore, prosecution is only an abuse
of process of the court. Petitioner would also contend that as the medical certificate does not
establish that petitioner was under the influence of alcohol and the only allegation is that he was
driving the vehicle under the influence of alcohol, offence under Section 184 of Motor Vehicles Act is
also not attracted.
4. Learned Public prosecutor submitted that Annexure-II Certificate of Drunkenness issued by the
Doctor does not establish that petitioner was under the influence of alcohol so as to be incapable of
exercising proper control over the vehicle or the percentage of alcohol in his blood at that time
exceeded 30 mg./100 ml. But, it is submitted that petitioner was driving the vehicle, as found by the
Traffic Police Constable, in a manner which is dangerous to the public on Banerji Road and
therefore, an offence under Section 184 of Motor Vehicles Act is attracted and hence, the said
offence cannot be quashed.
5. Section 185 of Motor Vehicles Act provides punishment for driving by a drunken person or by a
person under the influence of drugs. Under clause
(a), whoever, while driving or attempting to drive a motor vehicle, has, in his blood, alcohol
exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, is liable for the
punishment provided therein.
6. Annexure-II Certificate of Drunkenness does not show that percentage of alcohol in the blood of
the petitioner exceeded 30 mg./100 ml. as provided under clause (a) of Section 185 of Motor
Vehicles Act.
7. Under clause (b) of Section 185 of Motor Vehicles Act, whoever, while driving or attempting to
drive a motor vehicle, is under the influence of a drug to such an extent as to be incapable of
exercising proper control over the vehicle is liable for the punishment provided therein.
8. Annexure-II Certificate of Drunkenness does not establish that petitioner was under the influence
of a drug to such an extent as to be incapable of exercising proper control over the vehicle. In such
circumstances, even if petitioner is to be tried, he cannot be convicted for an offence under Section
185 of Motor Vehicles Act. Therefore, prosecution of the petitioner for the said offence can only be
quashed.
9. Section 184 of Motor Vehicles Act provides that 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 as provided therein.

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Manoj vs State Of Kerala on 16 March, 2010

11. Argument of the learned counsel is that the allegation in the final report is only that petitioner
was driving the vehicle dangerously due to the influence of alcohol and when Annexure-II Certificate
of Drunkenness establishes that petitioner was not under the influence of alcohol, prosecution for
the offence under Section 184 of Motor Vehicles Act is only an abuse of process of the court. But, to
convict a person for an offence under Section 184, that person need not be under the influence of
alcohol. If it is proved that petitioner was driving the motor vehicle either at a speed or in a manner,
which is dangerous to the public, he is liable to be convicted for the offence. While considering the
question whether the vehicle was being driven in a manner which is dangerous to the public, due
regard must be given to the nature, condition and use of the place where the vehicle was driven and
the amount of traffic which actually was at the time or which might reasonably be expected to be in
the place. Prosecution case is that petitioner was driving the motor cycle along the Banerji Road at
about 9.30 p.m. Even if it could be said that the charge does not contain an allegation that public
was present at the road, it cannot be disputed that the traffic expected to be in Banerji Road at that
time is not a relevant fact to be considered to decide whether the driving of the vehicle in a zig-zag
manner was dangerous to the public or not. If that be so, I cannot agree with the argument of the
learned counsel that an offence under Section 184 of Motor Vehicles Act is not attracted. Therefore,
the cognizance taken for the offence under Section 184 of Motor Vehicles Act cannot be quashed.
12. Learned counsel then submitted that petitioner was not intimated within fifteen days as
provided under Section 210 of Motor Vehicles Act. But, such a contention is not taken in the
petition. Therefore, it is not possible for this Court to consider whether petitioner was intimated as
provided under Section 210 of Motor Vehicles Act or not. Petitioner is at liberty to raise the
contention before the learned Magistrate.
Petition is allowed in part. The cognizance taken for an offence under Section 185 of Motor Vehicles
Act in S.T.No.546/2005 on the file of Judicial First Class Magistrate's Court-II, Ernakulam is
quashed. It is made clear that Magistrate can proceed with the cognizance taken for the offence
under Section 184 of Motor Vehicles Act.
16th March, 2010 (M.Sasidharan Nambiar, Judge) tkv

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