Case Title: Fasaludheen A. & Anr. v. State of Kerala & Anr. and other connected matters
Summary
The Kerala High Court has ruled that vehicle proprietors are prosecutable under Section 113(3) of the Motor Vehicles Act, 1988 if they allow the vehicle to be driven with excess weight. This decision was made in response to a series of petitions challenging proceedings initiated under Sections 113(3)(b) r/w. Section 194(1) of the Motor Vehicles Act. The court stated that the presumption contemplated under Section 113 (4) will not affect the commission of the offense and may be relevant during the trial.
The petitioners challenged the prosecution instituted against them by the Motor Vehicles Inspector, alleging that the offenses were punishable under Sections 113(3)(b) in conjunction with Section 194(1) of the MV Act, 1988. The court stated that the prosecution was initiated as a result of complaints submitted by the Motor Vehicle Inspector and that none of them are founded on a police report.
The petitioners also argued that the complainant was improperly assuming a presumption at the time of submitting the complaint, as Section 113 (4) requires the Court to draw a presumption. However, the court stated that the complaint contains materials for attracting the ingredients contemplated under Sub section (3) of Section 113 of the Act, and therefore the complaint can be proceeded with, independent of the presumption.
The court declined to accept the submission that the issuance of an order to off-load the excess weight is a subsequent event that occurs after the offense has been detected. The offense under Subsection (3) of Section 113 would be attracted once the vehicle was discovered to be carrying excess weight, and the proceedings would not be vitiated.
About the case
The Kerala High Court on Friday noted that the proprietors of the vehicles are also prosecutable under Section 113(3) of the Motor Vehicles Act, 1988 if they have allowed the vehicle to be driven with an excess weight.
The court stated that the complaints raise specific allegations against the registered owners of the vehicles that they had permitted the vehicle to be driven with excess weight. This was in response to a series of petitions that challenged the proceedings that were initiated under Sections 113(3)(b) r/w. Section 194(1) of the Motor Vehicles Act.
The Court may “presume that the offense was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer” when the driver or person in charge of the vehicle being driven in contravention to the stipulations of the provision is not the owner, as Justice Ziyad Rahman A.A. noted in Section 113(4).
The court was informed that the presumption is exclusively applicable to the offense under Section 113(3)(a), which pertains to the unladen weight of the vehicle. It was further contended that the proprietor of the vehicle in question cannot be prosecuted in the absence of any presumption.
It is clear that both the acts of driving a vehicle with excess weight (unladen or laden) and causing or allowing the driving of a vehicle with excess weight would result in the aforementioned offenses. These offenses are distinct and could be committed by various individuals. Upon reviewing the complaints submitted in each of these cases, the court found that the registered owners have been accused of allowing the vehicle to be driven with an excess weight. Consequently, the registered owners are subject to prosecution for the offense under Subsection (3) of Section 113 of the Motor Vehicles Act, as stipulated in Subsection (3).
The court declared that the ‘presumption’ contemplated under Section 113 (4) will “not affect the commission of the offence” and that it may be relevant during the trial.
“The prosecution’s burden to establish the offense is significantly reduced when a presumption is in their favor.” Nevertheless, the absence of the circumstances necessary to attract the presumption does not result in a determination that no offense is attracted. Conversely, the absence of the presumption would increase the burden of prosecution. Consequently, the offense would be identified in this instance if the complaint contains the elements outlined in Subsection (3) of Section 114. In this scenario, the prosecution may be initiated against all individuals who committed the aforementioned offenses, regardless of whether the presumption, as per Subsection (4) of Section 113 of the Motor Vehicles Act, is invoked or not. Given these circumstances, I do not believe that the aforementioned assertions are valid.
The petitioners had challenged the prosecution instituted against them by the Motor Vehicles Inspector, alleging that the offenses were punishable under Sections 113(3)(b) in conjunction with Section 194(1) of the MV Act, 1988. In these cases, the petitioners, who are the registered proprietors and drivers of the vehicles, are accused of carrying an excessive amount of cargo in their goods carriages, which resulted in the commission of the offenses.
The counsel for the petitioners argued that the proceedings begun against them are not legally viable due to the non-cognizable nature of the offenses alleged against them. Consequently, the Magistrate was unable to consider the final report of the Motor Vehicle Inspector.
Nevertheless, the Court stated that the prosecution was initiated as a result of complaints submitted by the Motor Vehicle Inspector and that none of them are founded on a police report, as is provided in Section 173(2) of the Cr.P.C.
The petitioners also argued that the complainant was improperly assuming a presumption at the time of submitting the complaint, as Section 113 (4) requires the Court to draw a presumption.
The Court stated that the complaint in none of the cases under challenge was submitted in accordance with the presumption established in the provision.
“On the other hand….the complaint contains materials for attracting the ingredients contemplated under Sub section (3) of Section 113 of the Act, and therefore the complaint can be proceeded with, independent of the presumption as referred to above,” according to the court.
The petitioners also argued that the complaint specifies the penalty that the accused will be required to pay in the event of a guilty verdict. Additionally, the complaint includes a prayer requesting that the accused pay the fine in accordance with the rates outlined in a government order. A submission was made that such a supplication is not permissible.
The court stated that, despite the fact that the government order was referenced in certain complaints, they cannot be considered vitiated for this reason.
“If there are sufficient averments in the complaint for prosecuting the accused on the basis of materials placed on record, nothing would preclude the court from taking cognizance,” according to the court.
The petitioner’s attorneys subsequently argued that, in accordance with Section 114 of the M.V. Act, 1988, “the Officer concerned may, by an order, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced or the vehicle or trailer has been otherwise dealt with.”
No document has been produced to indicate compliance in any of the cases in which it was submitted.
Nevertheless, the court declined to accept the submission, stating:
“…in my opinion, it cannot be regarded as a violation that would invalidate the prosecution.” The issuance of an order to off-load the excess weight is a subsequent event that occurs after the offense has been detected. The offense under Subsection (3) of Section 113 would be attracted once the vehicle was discovered to be carrying excess weight. The proceedings would not be vitiated and the offense already committed by the accused persons would not be erased simply because the officer in question failed to issue an order directing the driver to off-load the excess weight.
The Court further stated that the provision can only be interpreted as “an enabling provision that empowers the Officer concerned to pass such a direction so as to avoid continued violation of Subsection (3) of Section 113 of the Motor Vehicles Act” due to the use of the term “may.”
The Court, as a result, dismissed the petitions.
