In any event, the
offence cannot be said to be cognizable only because a power is conferred
to arrest any person committing such offence, without warrant. It is
apparent that a person arrested in connection with an offence punishable
under Section 185 of the MV Act has to be subjected to a medical
examination referred to in Sections 203 and 204 by a registered medical
practitioner. The Breath Test has to be carried out so as to ascertain
whether there was presence of alcohol in his body or a person was under
the influence of a drug. Therefore, this is not an absolute power to arrest
without warrant, but subject to the conditions specified in law and there
are inbuilt safeguards and protection so that a person is not deprived of
his life and liberty. In these circumstances merely because the power to
arrest without warrant is conferred in a police officer in uniform does not
mean that the offence is cognizable. Even if a person is to be subjected to
the tests, the Police Officer must have a reasonable cause to suspect him
of having committed an offence punishable under Section 185. Therefore,
if there is a reasonable cause to suspect a person having committed an
offence punishable under Section 185, that he can be subjected to a
Breath Test and by calling upon him or requiring him subject himself to
such test, is not necessarily arrest. He could be arrested provided a Breath
Test carried out on him indicating presence of alcohol in his blood. He
cannot be arrested if he is at a hospital as an indoor patient. If the person
concerned refuses to provide a specimen of breath for a Breath Test or
fails to do so and a police officer has a reasonable cause to suspect him of
having alcohol in his blood that he may arrest that person except while
that person is in hospital as an indoor patient. Even after his arrest he
shall while at police station be given an opportunity to provide a
specimen of breath for a Breath Test. Therefore, with all this it is not as if
the offence can be said to be cognizable. Additionally also because of the
extent of punishment, namely, imprisonment for less than two years that
a conclusion can safely be reached that an offence punishable under
Section 185 of the MV Act is not cognizable.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.467 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ms.Rani Shashank Doshi,
Versus
State of Maharashtra.
CORAM : S.C.DHARMADHIKARI
&
G.S.PATEL, JJ.
Pronounced on : 28th November, 2013.
In this Criminal Application the only point that arises for our
consideration is whether an offence punishable under Section 185 of the
Motor Vehicles Act, 1988 is cognizable or noncognizable.
2
The facts that are necessary to appreciate this question are
that on 27.04.2011 the Applicant was driving a motor vehicle when she
was signalled to stop by an officer of the N.M.Joshi Marg Police Station,
Mumbai. The Applicant was further put to a “Breath Alcohol Analysis
Test” and after the test was conducted, no statement was recorded nor
was any report given to the Applicant. The Applicant was further directed
to deposit a sum of Rs.2000/ for which the Applicant was furnished a
receipt. The Applicant was further directed to attend the Court of Special
Metropolitan Magistrate (Morning Court), Bhoiwada, Mumbai on
03.05.2011. Thereafter, the Applicant was allowed to go as per the
It is stated that on 03.05.2011 the Applicant attended the
directions of the officers of Respondent No.3.
Court of Special Metropolitan Magistrate, Dadar, Mumbai where number
of persons were present. The Applicant's name was called out, but no
documents were furnished to the Applicant. The Applicant was asked
whether she pleaded guilty to the charge under Section 185 of the Motor
Vehicles Act, 1988. The Applicant pleaded not guilty and thereafter the
Applicant was directed to attend the Court of Metropolitan Magistrate,
29th Court, Dadar Mumbai. A copy of charge sheet filed by the officers of
Respondent No.3 dated 03.05.2011 is annexed as AnnexureA to the
Criminal Application.
Mr.H.K.Prem, learned counsel appearing for the Applicant,
has submitted that an offence punishable under Section 185 of the Motor
Vehicles Act, 1988 (for short “the MV Act”) is a cognizable offence. This
would be evident from the scheme of the MV Act visavis the Code of
Criminal Procedure, 1973. Mr.Prem, inviting our attention to the
definitions of the terms “cognizable offence” and “cognizable case” as
appearing in Section 2(c) of the Code of Criminal Procedure, 1973, has
submitted that by its very definition, an offence would be a cognizable
offence if a police officer is empowered to arrest without warrant in
accordance with the First Schedule of the Code of Criminal Procedure,
1973 or under any other law for the time being in force. The First
Schedule comprises of two parts. PartI tabulates the offences under the
Indian Penal Code whereas PartII provides for classification of offences
falling in other laws or statutes. In other words, if a statute other than the
Indian Penal Code does not categorically classify an offence as cognizable
or non cognizable and further does not provide any mechanism to the
police to arrest without warrant, PartII of the First Schedule classifies the
offences as cognizable or non cognizable on the basis of the punishment
prescribed for the said offence. Thus, an offence other than provided in
the Indian Penal Code would be cognizable if either the said statute
expressly provides the said offence to be cognizable or empowers a police
officer to arrest without warrant. In the alternative the same would be
cognizable or non cognizable depending on the punishment prescribed in
reference to PartII of the First Schedule of the Code of Criminal
Procedure, 1973.
Mr.Prem submitted that Section 41 of the Code of Criminal
Procedure, 1973 provides for as to when the police could arrest without
warrant. A closer look of Section 41 would demonstrate that the police
are empowered to arrest without warrant essentially in connection with
the commission of a cognizable offence. As such, Section 2(c) and Section
41 of the Code of Criminal Procedure, 1973 complement each other in
laying down the mandate of law that an offence is cognizable where the
police can arrest without warrant and vice versa. The conjoint reading of
Sections 2(c) and 41, therefore, clearly demonstrates that the law
mandates an offence to be cognizable if the police are empowered to
arrest without warrant.
Mr.Prem submitted that in view of the above position, the
provisions of the MV Act especially Sections 202 and 203 thereof require a
closer look. Howsoever, similar or dissimilar Sections 202 and 203 may
appear, the Legislature has incorporated them by segregating them
distinctively and in different spheres. The Legislature by virtue of Section
202 has expressly empowered the police to arrest without warrant for
offences punishable under, inter alia, Section 185. However, at the same
time, the Legislature, in its own wisdom, has qualified the provision of
arrest without warrant by restricting the said power to a police officer in
uniform. Thus, though a police officer is empowered to arrest without
warrant for the commission of offences of, inter alia, Section 185 of the
MV Act, at the same time the said arrest can be effected only by a police
officer in uniform. It is submitted that merely by virtue of this
qualification that is embargoed on the police, the same would not change
the complexion of the offence from a cognizable to a noncognizable one.
Mr.Prem submitted that it would be also imperative to note
the distinction between Section 202 and 203 for the purposes of the
present challenge. Section 202(1) empowers the police officer in uniform
to arrest without warrant, any person “who in his presence” commits an
offence. That would mean for the purposes of the present challenge, that
for a police officer in uniform to arrest a person under Section 202, an
offence has to be committed in the presence of the said Police Officer. As
and by way of illustration, if a person whilst driving a motor vehicle,
consumes alcohol, and the said act of driving and consumption of alcohol
is committed in the presence and/or in the sight of the Police Officer, the
said Police Officer is empowered to arrest the said person under the
provisions of Section 202 of the MV Act. The proviso thereafter provides
for such a person arrested to be subjected to a medical examination as
contemplated under Sections 203 and 204 of the MV Act within two
hours of his arrest.
Mr.Prem submitted that on the other hand, Section 203 is
distinctively different from Section 202 for the purposes of the present
challenge. Here again, the Legislature in its wisdom has qualified a Police
Officer to be a Police Officer in uniform or an officer of the Motor Vehicle
Department for the purposes of obtaining specimens of breath for Breath
test. However, at the same time, the arrest which is contemplated under
Section 203 is only by a Police Officer in uniform without empowering the
officer of the Motor Vehicle Department therefor. Subclause (3) of
Section 203 provides for a police officer in uniform to arrest a person if
the said person in consequence of the breath test carried out on him
shows the presence of alcohol in his blood. Thus, Mr.Prem submitted that
on one hand, Section 202 provides for the immediate arrest of an offender
whereas Section 203 provides for the arrest of an offender after the
breath test which is carried out on the said person. The distinction is
essentially with respect to the commission of an offence under Section
185 in the presence of the police officer as contemplated by Section 202
of the MV Act whereas on the other hand, Section 203 provide for
subjecting an offender to a breath test on a reasonable suspicion of the
offender having committed an offence and thereafter, arresting the said
offender. In both the cases, offenders are arrested without warrant by a
Mr.Prem submitted that an analogous reading of Sections 202
police officer albeit in uniform.
and 203 of the MV Act visavis Section 41 of the Code of Criminal
Procedure, 1973 would clearly show that the offence under Section 185 is
intended by the Legislature to be cognizable. The arrest without warrant
by the police officer under Section 202 of the MV Act would be analogous
to the arrest by a police officer under Section 41(1)(a) of the Code of
Criminal Procedure, 1973. Both the provisions contemplate the arrest of
an offender who commits in presence of a Police Officer a cognizable
offence. On the other hand, Section 203 of the MV Act is analogous with
Section 41(1)(b)(ii)(b) of the Code of Criminal Procedure, 1973. Both the
provisions contemplate the arrest of a person without warrant by the
Police Officer who is satisfied that such an arrest is necessary for proper
investigation of the offence.
Mr.Prem, thus, submitted that Section 185 is a cognizable
offence as it provides for a Police Officer in uniform to arrest an offender
without warrant. If such a provision stands enacted by the Legislature, it
would be an error to fall back on PartII of the First Schedule to the Code
of Criminal Procedure, 1973 for the determination of the classification of
Section 185 of the MV Act as cognizable or non cognizable.
Mr.Prem submitted that if an offence is a cognizable offence,
the Police Officer would be under a mandate to register a First
Information Report under Section 154(1) of the Code of Criminal
Procedure, 1973 for the purposes of investigating the same. After having
registered such an offence under Section 154(1) of the Code of Criminal
Procedure, 1973, the officer in charge of the Police Station under Section
156(1) of the Code of Criminal Procedure, 1973 has a statutory right to
investigate the said cognizable case without requiring a sanction of a
Magistrate. However, this statutory right under Section 156(1) is subject
to the fulfillment of a prerequisite condition contemplated under Section
157(1) of the Code of Criminal Procedure, 1973. The condition is that the
officer in charge of a Police Station before proceeding to investigate the
facts and circumstance of the case should have “reason to suspect” the
commission of an offence which he is empowered under Section 156 of
the Code of Criminal Procedure, 1973 to investigate. It is settled law as
decided by the Honourable Supreme Court in the matter of Bhajanlal v/s
State of Haryana reported in AIR 1992 SC 604 that the condition
precedent to the commencement of an investigation under Section 157(1)
of the Code of Criminal Procedure, 1973 is the existence of the reason to
suspect the commission of a cognizable offence which has to be prima
facie disclosed by the allegations made in the First Information lead
before the police officer under Section 154(1) of the Code of Criminal
Procedure, 1973. In other words, if an offence is cognizable, the
investigation thereof can proceed only after the registration of an FIR as
contemplated under Section 154 of the Code of Criminal Procedure,
1973. Without such registration of an FIR, no investigation can be
commenced for cognizable offences.
12
Mr.Prem submitted that in the present case though the
offences under Section 185 of the MV Act are cognizable, no FIR as
mandated under Section 154 of the Code of Criminal Procedure, 1973
was registered nor any investigation as contemplated by Section 156
undertaken nor a report as mandated under Section 157 sent to the
Magistrate. The proceedings are, therefore, abjectly illegal and deserve to
13
be quashed and set aside.
Mr.Prem submitted that if the offence under Section 185 was
to be noncognizable, then in that case, the police would not be
empowered to arrest without warrant. A harmonious reading of the
provisions of the MV Act and more particularly Sections 202 and 203 vis
avis Section 2(c) and 41 of the Code of Criminal Procedure, 1973 would
make it abundantly clear that an offence under Section 185 is cognizable.
To contend that the offence is a noncognizable offence and at the same
time empowering the police to arrest an offender without warrant would
be in the teeth of Section 2(c) of the Code of Criminal Procedure, 1973
and the said provisions would be rendered ultra vires.
Lastly, Mr.Prem submitted that be that as it may, assuming for
14
the sake of argument the offence to be noncognizable (notwithstanding
the power to arrest without warrant) the Code of Criminal Procedure,
1973 provides a mechanism for investigating the same. Section 155
requires an officer in charge of the Police Station to refer the said offence
to the Magistrate and is estopped by virtue of Section 155(2) of the Code
of Criminal Procedure, 1973 from investigating a noncognizable case
without an order of the Magistrate. In the present case, no such procedure
has admittedly been followed and as such the present proceedings are
rendered abjectly illegal and deserve to be quashed forthwith.
Mr.Prem submitted that the charge sheet which is filed by the
police in the present case before the Magistrate is abjectly illegal
inasmuch as the Code of Criminal Procedure, 1973 does not contemplate
such a proceeding in any manner at all. Either the police ought to register
an FIR, investigate the FIR under the provisions of Sections 156, 157, etc.
of the Code of Criminal Procedure, 1973 and file a police report as
contemplated by Section 173 by complying with the provisions of the
Code of Criminal Procedure, 1973 or if the police investigate a non
cognizable case under Section 155(2), the police have to file a complaint
before the learned Magistrate which would be treated in the nature of
Section 2(d) for which a cognizance would be taken under Section 190(1)
(a) of the Code of Criminal Procedure, 1973.
On the other hand, Mrs.Kejriwal, learned APP appearing on
behalf of the Respondents/State, submitted that the controversy as to
whether an offence is cognizable or noncognizable has been decided by
the learned Single Judge of this Court in the case of Sandeep Indravadan
Sagar v/s State of Maharashtra in Criminal Writ Petition No.1849/2010
along with connected Criminal Writ Petitions and Applications decided on
10.01.2013. This particular Application was also on Board, but could not
be taken up. Therefore, a different view is not permissible. In any event,
the argument raised that the learned Single Judge's judgment is erroneous
and incorrect and is, therefore, required to be overruled, should not be
accepted.
Mrs.Kejriwal submits that in the present case on her own
showing the Applicant was driving the motor vehicle under the influence
of alcohol. If that was the offence, then, the Applicant was stopped by the
officer concerned and subjected to a Breath Test for detecting presence of
alcohol in her blood. The Applicant submitted to all this voluntarily. There
was no question of any arrest. The Applicant was then directed to attend
the Court of Special Metropolitan Magistrate (Morning Court), Bhoiwada
on 03.05.2011. She attended the Court and was asked whether she
pleaded guilty to a charge under Section 185 of the MV Act. She pleaded
not guilty. Therefore, she was directed to attend the Court of Metropolitan
Magistrate, 29th Court, Dadar on 03.05.2011 and a copy of the charge
sheet has been annexed as AnnexureA to this Criminal Application.
Mrs.Kejriwal submits that the view taken by the learned Single Judge is
the only view in the given facts and circumstances. There is no question of
any arrest being effected and therefore, the provisions with regard to a
power of arrest without warrant need not be adverted to. When an
offence is noncognizable, the view taken by the learned Single Judge is
correct. It does not require any reconsideration. The Criminal Application
be, therefore, dismissed.
For properly appreciating the rival contentions, a reference
will have to be made to the Motor Vehicles Act, 1988. This is an Act to
consolidate and amend the law relating to Motor Vehicles. The Old Act
1939 came to be amended in 1988. It was further amended in 1994. The
statement of objects and reasons for the Amendment Act 54 of 1994 reads
thus:
“Amendment Act 54 of 1994
Statement of Objects and Reasons.
2.
The Motor Vehicles Act, 1988 (59 of 1988)
consolidated and rationalised various laws regulating
road transport. The Act came into force with effect
from 1st July, 1989 replacing the Motor Vehicles Act,
1939.
After the coming into force of the Motor Vehicles Act,
1988, Government received a number of
representations and suggestions from the State
Governments, transport operators and members of
public regarding the inconvenience faced by them
because of the operation of some of the provisions of
the 1988 Act. A Review Committee was, therefore,
constituted by the Government in March, 1990 to
examine and review the 1988 Act.
The recommendations of the Review Committee were
forwarded to the State Governments for comments
and they generally agree with these
recommendations. The Government also considered a
large number of representations received, after
finalisation of the Report of the Review Committee,
from the transport operators and public for making
amendments in the Act. The draft of the proposals
based on the recommendation of the Review
Committee and representations from the public were
placed before the Transport Development Council for
seeking their views in the matter. The important
suggestions made by the Transport Development
Council relate to, or are on account of,–
(a) the introduction of newer type of vehicles and
fast increasing number of both commercial and
personal vehicles in the country;
(b) providing adequate compensation to victims of
road accidents without going into longdrawn
procedure;
(c) protecting consumers’ interest in Transport
Sector;
(d) concern for road safety standards, transport of
hazardous chemicals and pollution control;
(e) delegation of greater powers to State Transport
Authorities and rationalising the role of public
authorities in certain matters;
(f) the simplification of procedures and policy
liberalisation in the field of Road Transport;
(g) enhancing penalties for traffic offenders.
3.
Therefore, the proposed legislation has been prepared
in the light of the above background. The Bill inter
alia provides for –
(a) modification and amplification of certain
definitions of new type of vehicles;
(b) simplification of procedure for grant of driving
licences;
(c) putting restrictions on the alteration of
vehicles;
(d) certain exemptions for vehicles running on non
polluting fuels;
(e) ceilings on individuals or company holdings
removed to curb “benami” holdings;
(f) States authorised to appoint one or more State
Transport Appellate Tribunals;
(g) punitive checks on the use of such components
that do not conform to the prescribed standards by
manufactures, and also stocking / sale by the traders;
(h) increase in the amount of compensation of the
victims of hit and run cases;
(i) removal of time limit for filing of application
by road accident victims for compensation;
(j) punishment in case of certain offences is made
stringent;
(k) a new predetermined formula for payment of
compensation to road accident victims on the basis of
age / income, which is more liberal and rational.
The Law Commission in its 119th Report had
recommended that every application for a claim be
made to the Claims Tribunal having jurisdiction over
the area in which the accident occurred or to the
Claims Tribunal within the local limits of whose
jurisdiction the claimant resides or carries on business
or within the local limits of whose jurisdiction the
defendant resides, at the option of the claimant. The
Bill also makes necessary provision to give effect to
the said recommendation.”
5.
Thus, the amendment envisages stringent punishment in case
of certain offences.
20
We are, in this case, concerned with the provisions which are
contained in ChapterXIII of the MV Act entitled “offences, penalties and
procedure”. Section 177 with which this Chapter opens makes general
provisions for punishment of offences. Section 178 provides for penalty
for travelling without pass or ticket and for dereliction of duty on the part
of conductor and refusal to ply contract carriage, etc.. Section 179 makes
disobedience of orders, obstruction and refusal to give information an
offence. Allowing unauthorized persons to drive vehicles is an offence
punishable under Section 180. Driving vehicles in contravention of
Section 3 or Section 4 is also made punishable with imprisonment for a
term which may extend to three months or with fine or with both and
that is by Section 181. Section 182 deals with offences relating to
licences. Section 182A provides for punishment for offences relating to
construction and maintenance of vehicles. Section 183 makes driving at
excessive speed an offence. Section 184 makes driving dangerously also
an offence.
21
Then, comes Section 185 and which has substituted clause
(1). This substitution is by Act 54 of 1994. Section 185 reads thus:
“185. Driving by a drunken person or by a person under the
influence of drugs. –
[(a)
(b)
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,
or]
is under the influence of a 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
year, 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.”
There are then several provisions enabling dealing with cases
of driving vehicles when a person is mentally or physically unfit and
punishment for offences relating to accidents and punishment for
abatement of certain offences.
We are not concerned with other offences. Sections 202 and
203 of the MV Act read as under:
“202. Power to arrest without warrant. –
(1)
A police officer in uniform may arrest without
warrant any person who in his presence commits an
offence punishable under section 184 or section 185
or section 197:
Provided that any person so arrested in connection
with an offence punishable under section 185 shall,
within two hours of his arrest, be subjected to a
medical examination referred to in sections 203 and
204 by a registered medical practitioner failing which
he shall be released from custody.
(2) A police officer in uniform may arrest without
warrant any person, who has committed an offence
under this Act, if such person refuses to give his name
and address.
(3) A police officer arresting without warrant the driver
of a motor vehicle shall if the circumstances so require
take or cause to be taken any steps he may consider
Breath tests. –
A police officer in uniform or an officer of the Motor
Vehicle Department, as may be authorised in this
behalf by that Department, may require any person
driving or attempting to drive a motor vehicle in a
public place to provide one or more specimens of
breath for breath test there or nearby, if such police
officer or officer has any reasonable cause to suspect
him of having committed an offence under section
185:
203.
(1)
proper for the temporary disposal of the vehicle.”
If a motor vehicle is involved in an accident in a
public place and a police officer in uniform has any
reasonable cause to suspect that the person who was
driving the motor vehicle at the time of the accident
had alcohol in his blood or that he was driving under
the influence of a drug referred to in section 185 he
may require the person so driving the motor vehicle,
to provide a specimen of his breath for a breath test –
(a) in the case of a person who is at a hospital as
an indoor patient, at the hospital,
(b) in the case of any other person, either at or
near the place where the requirement is made, or, if
the police officer thinks fit, at a police station
specified by the police officer :
(2)
Provided that requirement for breath test shall be
made (unless it is made) as soon as reasonably
practicable after the commission of such offence.
Provided that a person shall not be required to
provide such a specimen while at a hospital as an
indoor patient if the registered medical practitioner in
immediate charge of his case is not first notified of the
proposal to make the requirement or objects to the
provision of a specimen on the ground that its
provision or the requirement to provide it would be
prejudicial to the proper care or treatment of the
patient.
(4) If a person, required by a police officer under sub
section (1) or subsection (2) to provide a specimen of
breath for a breath test, refuses or fails to do so and
the police officer has reasonable cause to suspect him
of having alcohol in his blood, the police officer may
arrest him without warrant except while he is at a
hospital as an indoor patient.
(5) A person arrested under this section shall while at a
police station, be given an opportunity to provide a
specimen of breath for a breath test there.
(6) The results of a breath test made in pursuance of the
provisions of this section shall be admissible in
evidence.
If it appears to a police officer in uniform, in
consequence of a breath test carried out by him on
any person under subsection (1) or subsection (2),
that the device by means of which the test has been
carried out indicates the presence of alcohol in the
person’s blood, the police officer may arrest that
person without warrant except while that person is at
a hospital as an indoor patient.
(3)
24
Explanation. For the purposes of this section “breath test”,
means a test for the purpose of obtaining an
indication of the presence of alcohol in a person’s
blood carried out, on one or more specimens of breath
provided by that person, by means of a device of a
type approved by the Central Government, by
notification in the Official Gazette, for the purpose of
such a test.”
A perusal of these provisions in the backdrop of the
Statement of Objects and Reasons would enable us to hold that Section
185 makes it an offence if a motor vehicle is driven by a person under the
influence of alcohol or by a person under the influence of drugs. What is
further material is the fact that the offence is committed while driving or
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*17*
apl.467.12.db..sxw
attempting to drive a motor vehicle. Therefore, the offence is of driving or
attempting to drive a motor vehicle in a drunken state or under the
influence of drugs.
25
The menace of drunken driving has been considered by the
Honourable Supreme Court in the case of the State through PS Lodhi
Colony, New Delhi v/s Sanjeev Nanda reported in AIR 2012 SC 3104 :
(2012) 8 SCC 450. The Honourable Supreme Court has observed thus:
......... This court in Kurban Hussain Mohamedalli
Rangawalla v. State of Maharashtra [AIR 1965 SC
1616] approved the plea that simply because of the
fact that no untoward incident had taken place prior
to the occurrence of the accident, one cannot infer
that the accused was sober and not in a drunken
state. In the instant case, the presence of alcohol
content was much more (i.e. 0.115%) than the
permissible limit and that the accused was in an
inebriated state at the time of accident due to the
influence of liquor and in the accident, six human
lives were lost.
ig
85.
86.
Drunken driving has become a menace to our society.
Every day drunken driving results in accidents and
several human lives are lost, pedestrians in many of
our cities are not safe. Late night parties among
urban elite have now become a way of life followed
by drunken driving. Alcohol consumption impairs
consciousness and vision and it becomes impossible
to judge accurately how far away the objects are.
When depth perception deteriorates, eye muscles lose
their precision causing inability to focus on the
objects. Further, in more unfavourable conditions like
fog, mist, rain, etc., whether it is night or day, it can
reduce the visibility of an object to the point of
being below the limit of discernibility. In short,
alcohol leads to loss of coordination, poor judgment,
slowing down of reflexes and distortion of vision.
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*18*
Punishment meted out to a drunken driver, is at least
a deterrent for other such persons getting away with
minor punishment and fine. Such incidents are
bound to increase with no safety for pedestrians
on the roads. The contention raised by learned senior
counsel that the accused was not under the
influence of liquor or beyond the limit prescribed
under the Motor Vehicles Act and he was in his senses
and the victims were at fault being on the middle of
the road, is without any substance and only to
be rejected.”
The question before us is because Section 202 confers the
ig
26
87.
apl.467.12.db..sxw
power in a police officer in uniform to arrest any person without warrant,
whether the offence is of the nature urged before us. That power is
conferred if the offence punishable under Section 184 or 185 or 197 is
committed in the presence of a police officer in uniform. Section 197 is an
offence of taking vehicle without authority whereas Section 184 is an
offence committed because of dangerous driving. The Legislature has
advisedly inserted this provision so as to enable a police officer in uniform
to arrest any person who in his presence commits this offence. In case of
an offence punishable under Section 185, however, a police officer has to
be vigilant and within two hours of arrest of such person, he should be
subjected to a medical examination referred to in Sections 203 and 204
by a registered Medical Practitioner, failing which he shall be released
from custody.
27
By subsection (2) of Section 202, a police officer in uniform
is given discretion to arrest without warrant any person who has
committed an offence under the MV Act if such person refuses to give his
name and address. The power is also conferred in a police officer by sub
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*19*
apl.467.12.db..sxw
section (3) of Section 202 to take or cause to be taken any steps for the
temporary disposal of the vehicle. This power is to be exercised if the
28
circumstances so require.
By Section 203(1) of the MV Act the power is given to both, a
police officer in uniform or an officer of the Motor Vehicle Department as
may be authorized in this behalf by that Department, to require any
person driving or attempting to drive a motor vehicle, to provide one or
more specimens of breath for a Breath Test there or nearby if such police
ig
officer or officer has any reasonable cause to suspect him of having
29
committed an offence punishable under Section 185.
By subsection (2) of Section 203, if a motor vehicle is
involved in an accident in a public place and a police officer in uniform
has any reasonable cause to suspect that a person has alcohol in his blood
or was driving under the influence of drugs, then, he may require such
person to provide a specimen of his breath for a breath test.
30
By subsection (3) of Section 203, a police officer in uniform,
in consequence of a breath test carried out by him indicating presence of
alcohol in blood, may arrest that person without warrant except if such
person is admitted in a hospital as an indoor patient. In view of sub
section (4) of Section 203, refusal or failure to provide specimen of breath
within the meaning of this provision would also result in a person being
arrested.
31
Therefore, it is not as if by calling upon somebody to subject
himself to a breath test on account of a reasonable cause and suspicion of
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having committed an offence punishable under Section 185 that arrest is
imminent or must follow. Therefore, the Legislature has authorized such
specimens being collected not only by a police officer in uniform but an
officer of the Motor Vehicle Department. Thereafter, it is only in certain
circumstances and events that an arrest is permitted. Even Section 202
has clarified that the power has to be exercised only when a police officer
in uniform finds that the offence punishable under Sections 184 or 185 or
197 is committed by a person in his presence. The arrest cannot continue
unless a person suspected of having committed an offence punishable
32
Sections 203 and 204.
ig
under Section 185 is subjected to a medical examination referred to in
To our mind, therefore, there is nothing in these provisions
which would enable us to hold that a person suspected of driving in a
drunken state or found to have been driving in such state or under the
influence of drugs, is to be arrested forthwith. If his arrest is not
immediate or imminent, but all that is provided is to subject him to
certain tests, then it is difficult to conceive that the Legislature intended
such offence to be cognizable. The Legislature was aware of the gravity
and seriousness of such offence, and therefore, provided for punishment
as enumerated therein.
33
The argument is that the offence is cognizable and that is
evident by the fact that a police officer is empowered to arrest without
warrant. It is contended that subsection (1) of Section 202 empowers
police officer in uniform to arrest without warrant any person who in his
presence commits an offence. In these circumstances the further
argument is that the definition of the term “cognizable offence and non
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cognizable offence” as appearing in the Code of Criminal Procedure, 1973
should not be taken assistance of. That is taken assistance of by the
learned Single Judge, and therefore, his judgment requires
reconsideration.
34
Before Honourable Mr. Justice A.M.Thipsay, the Petitioner
was arrested by the Charkop Division of Malwani Police Station on the
allegation of having committed an offence punishable under Section 185
of the MV Act. He was released on a cash bond of Rs.2000/. As per the
ig
terms of the Bond, he appeared before the Special Metropolitan
Magistrate, Borivali. On that date, the police filed the charge sheet
against him and the learned Single Judge was concerned with the
questions as to whether, the charge sheet can be filed without any First
Information Report; can in a Summons Triable Case, the charge sheet be
filed; and can in a trial an order of conviction and sentence be made in
advance. It is in that context the question of offence being cognizable and
noncognizable arose for the learned Single Judge's consideration.
35
The learned Single Judge noted the contentions and held that
the investigation in relation to the offence punishable under Section 185
need not precede the registration of a First Information Report within the
meaning of Section 154 of the Code of Criminal Procedure, 1973. That is
not the requirement even when the investigations are commenced in a
cognizable offence. In other words, the investigations into a cognizable
offence need not be preceded by the registration of a First Information
Report.
36
Our attention has been invited to several judgments and one
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of which is reported in AIR 1981 SC 368 (State of Gujarat v/s Lalsingh
Kashansingh). The learned counsel for Applicant submitted that in this
judgment the Honourable Supreme Court considered its earlier decisions
and held as under:
In Abasbhai's case (ibid), a SubInspector got a
warrant issued under Section 6 of the Bombay
Prevention of Gambling Act, which authorised him to
search certain premises. In execution of that warrant
the SubInspector raided a house and arrested three
persons who were found therein. The case was tried
by the Magistrate concerned as a cognizable one. At
the trial at the stage of arguments, it was contended
on behalf of the accused that offences under Sections
4 and 5 were noncognizable, and since the procedure
of warrant case had been followed by the Magistrate,
the trial was illegal. The trial court accepted the
argument and acquitted the accused. In appeal before
the High Court, it was agitated that the offence
was a cognizable one. The High Court reasoned –
and we think rightly – that since under S.6 of the
Act the Commissioner of Police has power to issue
special warrants of search and also to arrest, he is
competent to do personally, what he may authorise
others to do by special warrant. It followed the
dictum of Deodhar Singh's case ((1899) ILR 27 Cal.
144), in regard to the interpretation of the words "a
police officer" in the definition of "cognizable offence"
given in the Code of Criminal Procedure. On these
premises, the High Court held that offences under
Sections 4 and 5 are cognizable.
ig
“18.
19. In Emperor v. Ismail (AIR 1930 Bom. 49) (ibid), a
Division Bench of the Bombay High Court, reaffirmed
the dictum of Abasbhai's case (AIR 1926 Bom. 195),
that an offence punishable under Section 4 of the Act,
is cognizable.
20. In Delhi Administration v. Parkash Chand (AIR 1967
Delhi 151), H. R. Khanna, J., following the dictum of
the Calcutta High Court in Deodhar Singh's case
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((1899 ILR 27 Cal 144), and of Bombay High
Court in Abasbhai's case, held that offences under
Sections 3 and 4 of Delhi Gambling Act are
'cognizable offences' as Section 5 of the Delhi Act gives
the Superintendent of Police power to arrest or
authorise any officer of police, not below the rank
of SubInspector, to arrest without a warrant.
apl.467.12.db..sxw
It is argued on behalf of the appellantState that the
ratio of the aforesaid decisions in Deodhar Singh's
case and Parkash Chand's case is not applicable to
offences under the Bombay Prevention of Gambling
Act, because the Bengal Act and the Delhi Act
expressly empower the Superintendent of Police either
to arrest himself or direct arrest by another police
officer of requisite rank; whereas in Section 6(1) of
the Bombay Prevention of Gambling Act there are no
express words giving an option, to the Commissioner
of Police to effect arrest, personally.
22. We are unable to accept this argument. The
difference pointed out, is a distinction without a
difference. What was explicit in the Bengal Gambling
Act and the Delhi Gambling Act, is implicit in Section
6(1) of the Bombay Prevention of Gambling Act.
ig
21.
23.
It will now be appropriate to notice this Court's
decision in Union of India v. I. C. Lala (AIR 1973 SC
2204). In that case, two army officers and one
businessman were charged with the conspiracy of
the offences punishable under Sections 120B and
420 of the Indian Penal Code, read with Section 5(2)
of the Prevention of Corruption Act. The officer who
investigated these offences was an Inspector of the
Delhi Police Establishment. Under S.5A of the
Prevention of Corruption Act, before its amendment
in 1974, no officer below the rank of Deputy
Superintendent of Police could investigate an offence
punishable under Sections 161, 165 and 165A of the
Indian Penal Code and under Section 5(2) of the
Prevention of Corruption Act, without the order of the
Presidency Magistrate or a Magistrate of the First
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ig
Class. The question before the Court was, whether
sanction under Section 196A of the Code was
necessary. The answer to this question turned upon
whether an offence under Section 5(2) of the
Prevention of Corruption Act was noncognizable or
cognizable. The High Court held that an offence
under Section 5(2) of that Act was noncognizable
because it was not an offence for which any police
officer could arrest without a warrant. The same
argument which was canvassed before the High Court
was repeated before this Court. And it was contended
that the words 'a police officer' in Section 4(1)(f) of
the Code mean 'any' police officer. This argument was
repelled by this Court and it was held that such an
approach could not be a criterion for deciding
whether the offence is cognizable or non cognizable.
It was observed:
“If we pursue the same line of argument and
look at the definition of noncognizable offence in S.
4(1)(a) which defines noncognizable offence an
offence for which a police officer, within or without a
presidency town, may not arrest without warrant, it
might mean that as these are cases where a police
officer of the rank of Dy. Superintendent and above
can arrest without warrant these are not non
cognizable offences either. How can there be a case
which is neither cognizable nor non cognizable. It
was sought to be argued that these offences would be
cognizable offences when they are investigated by the
Deputy Superintendents of Police and superior officers
and non cognizable when they are investigated by
officers below the rank of Deputy Superintendents.
We fail to see how an offence would be cognizable in
certain circumstances and noncognizable in certain
other circumstances... We do not consider that this is
a reasonable interpretation to place.””
apl.467.12.db..sxw
37
We are of the view that the question that was raised before
the Honourable Supreme Court in the case of Lalsingh Kashansingh
(supra) was a distinct one. There, certain premises were raided because
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of suspicion that gambling activities were going on therein. The persons
were arrested and instruments of gaming were also seized. Further, the
issue was that an application was made to the Police Inspector requesting
him to enlarge them on bail. He did not consider their application nor did
he pass any order. At about noon, the Respondents before the Supreme
Court were produced before the Magistrate and he released them on bail.
The said Police Inspector did not consider releasing them on bail because
he was prohibited by the circular issued by the Superintendent of Police
directing all Police Sub Inspectors not to release any person arrested in
ig
connection with offences punishable under Sections 4 and 5 of the
Bombay Prevention of Gambling Act, 1887 on bail, as in the Form of
Warrant prescribed under Section 6 of the said Act it is mentioned that
the arrested persons should be produced before the Magistrate. It is in
these circumstances the circular was impugned by filing a Writ Petition
under Article 226 of the Constitution of India before the High Court of
Gujarath. The Honourable Supreme Court while dealing with the
contentions with regard to the legality and validity of the circular made
the said observations. These observations must be seen in the context of
competence of the officers empowered to exercise the powers under the
Bombay Prevention of Gambling Act, 1887. It was not as much a
discussion and conclusion on the offence being cognizable. The
Honourable Supreme Court did refer to definition of the term
“cognizable”, but it was in the context of the meaning of the term “police
officer” as appearing in the Code of Criminal Procedure, 1898 and
particularly in the definition of the term “cognizable offence”. The
Honourable Supreme Court was not considering any issue other than the
legality and validity of the circular. This would be evident from the
discussion in paragraphs reproduced above. This judgment is not an
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The learned Single Judge of this Court referred to the
38
authority on the point.
definition of the term “cognizable offence” as appearing in the Code of
Criminal Procedure, 1973 and proceeded to hold that merely because
Section 202 of the Motor Vehicles Act, 1988 in the present case empowers
a police officer to arrest a person without warrant provided he commits
an offence in his presence, will not make the offence punishable under
Section 185 cognizable. The learned Single Judge has referred to the
ig
scheme of the Motor Vehicles Act, 1988 and has found that the MV Act
does not make offence cognizable. Therefore, one has to necessarily fall
back on PartII of the First Schedule to the Code of Criminal Procedure,
1973. The learned Single Judge in paragraph 19 of his judgment rightly
held that the power to arrest given to a police officer under Section 202 is
not an unqualified power. That power can be exercised only if the offence
is committed in the presence of a police officer and when such police
officer is in uniform.
39
We need not go into larger question and issue raised by the
learned counsel for Applicant because in the facts before us, it is conceded
that the Applicant was driving the motor vehicle. She was signalled to
stop by the officer of N.M. Joshi Marg Police Station. She was further put
to Breath Test and after the test was conducted, she was directed to
deposit a sum of Rs.2000/ and receipt was furnished to her. She was
directed to attend the Court of Special Metropolitan Magistrate (Morning
Court), Bhoiwada. She attended the Court and it was asked whether she
pleads guilty to the charge. She did not plead guilty, therefore, she was
directed to attend the Court of Metropolitan Magistrate, 29 th Court, Dadar
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and the copy of charge sheet filed was provided to her. The documents
that are handed over to us as a compilation would indicate that at no
point the Applicant was arrested as claimed by her. She accompanied the
officer voluntarily and subjected herself to the Breath Test. She also
collected the receipt for deposits and thereafter, attended the Court. She
relies upon the true copy of charge sheet filed in the Court and therefore,
it is urged that same would evidence her arrest and release on bail.
It is not possible to accept this contention. The whole
40
ig
criminal application and contentions raised before us appear to be an
afterthought. The documents have been obtained and thereafter, contrary
to the initial assertions, what is argued is that the Applicant was arrested.
The additional grounds incorporated by way of amendment are based on
these documents. However, we are of the opinion that in the facts of this
case there was no arrest. The Applicant was apprehended while driving
the vehicle. She was asked to accompany the officer who admittedly was
a police officer and it is not disputed that he was in his uniform. He
stopped the vehicle and thereafter, put the Applicant to the test. The test
was conducted and the Applicant was directed to deposit a sum of
Rs.2000/. Thereafter, she went away. Now the contention that the
amount of Rs.2000/ was Cash Bail Sum and thus, the Applicant was
arrested, is clearly an afterthought. The power to arrest without warrant
conferred in a police officer in uniform is to take care of the acts specified
in Sections 184, 185 and 197 of the MV Act. Each of these acts endanger
safety of public. It is common ground that driving a motor vehicle at
speed or in a manner which is dangerous to public, results in accident.
Such accident may result in casualty. In such circumstances whenever a
person is found to be driving dangerously or in a drunken state or under
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the influence of drugs, that he can be proceeded in accordance with law.
The offence is committed in the present case if any person while driving
or attempting to drive the motor vehicle has in his blood alcohol
exceeding 30 mg. per 100 ml. of blood and which is detected in the test
by the Breath Analyzer. That the Applicant was subjected to such test and
the report indicated presence of alcohol exceeding the limits specified by
clause (a) of Section 185, that the police officer decided to proceed
against her. However, we do not find that she was arrested as is now
claimed. The case is pending in the Trial Court. No opinion need be
ig
expressed on merits of the charges which are levelled against the
Applicant as they would prejudice the case of either side. We are of the
opinion that the Applicant voluntarily and on her own accompanied the
Police Officer in uniform and subjected herself to the test and thereafter,
further process of law. The incident has taken place on 27.04.2011 and on
that date the Applicant after subjecting herself to the test was not
detained in custody or arrested, but allowed to go. She was free
throughout and even when she has not accepted guilt, but claimed to be
tried. In these circumstances to now urge that she was arrested, would
not be proper. The Applicant has understood the whole matter in the
perspective in which she has seen it and as narrated in paragraphs 2 and
3 of this Criminal Application. In these circumstances we do not see how
any prejudice has been caused.
41
The argument that subjecting oneself to the test itself is
deprivation of life and liberty, cannot be accepted in the teeth of the clear
language of Sections 185, 202 and 203 of the MV Act. It is only when a
police officer in uniform requires any person driving or attempting to
drive a motor vehicle in a public place, to provide one or more specimens
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of breath for Breath Test there or nearby if such police officer or officer
has any reasonable cause to suspect him of having committed an offence
that the requirement of Breath Test has to be fulfilled. Secondly, that
requirement is to be fulfilled in the event a motor vehicle is involved in
accident in a public place and a police officer in uniform has a reasonable
cause to suspect that a person who was driving the motor vehicle at the
time of accident has alcohol in his blood or that he was driving the motor
vehicle under the influence of drugs, that he may require the person
driving the motor vehicle to provide specimen of his breath for Breath
ig
Test. Either which way, subjecting oneself to such tests by itself does not
deprive a person of his liberty inasmuch as he is not arrested as claimed.
If that was the intent, then, the Legislature would not have incorporated
or inserted subsections (3) and (4) in Section 203. The consequences are
provided by subsection (5) of Section 203. Thus, the arrest is
contemplated only so as to carryout the Breath Test. The results of Breath
Test may in pursuance of the provisions of Section 203 shall be admissible
in evidence and by the explanation provided below subsection (6) of
Section 203, it would be apparent as to why Section 203 has been
brought on the statute book. The Breath Test and Laboratory Test are both
provided in order to obtain a proof of person being in such state as could
be termed as unfit to drive a motor vehicle.
42
Section 205 of the MV Act makes the matter more clear. It
reads as under:
“205. Presumption of unfitness to drive. –
In any proceeding for an offence punishable under
section 185 if it is proved that the accused, when
requested by a police officer at any time so to do, had
refused, omitted or failed to consent to the taking of
or providing a specimen of his breath for a breath test
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43
or a specimen of his blood for a laboratory test, his
refusal, omission or failure may, unless reasonable
cause therefor is shown, be presumed to be a
circumstance supporting any evidence given on behalf
of the prosecution or rebutting any evidence given on
behalf of the defence, with respect to his condition at
that time.”
apl.467.12.db..sxw
A bare reading thereof would enable us to hold that
presumption of unfitness to drive the motor vehicle can be raised in any
proceedings for an offence punishable under Section 185 if it is proved
ig
that the accused, when requested by a police officer at any time so to do,
had refused, omitted or failed to consent to the taking of or providing a
specimen of his breath for a Breath Test or a specimen of his blood for a
Laboratory Test, then, his refusal, omission or failure may, unless
reasonable cause therefor is shown, is presumed to be a circumstance as
indicated in Section 205. Thus, the presence of alcohol or drug would
lead the competent court to conclude that the vehicle was driven by a
person, who has alcohol in his blood or was under the influence of a drug
to such an extent so as to render him incapable of exercising proper
control of the vehicle. By Section 184, the offence is of dangerous driving.
However, in order to find out whether a person was under the influence
of alcohol that the tests are provided. Moreover, a complete reading of the
statutory provisions in question would denote that there is no arrest or
deprivation of life and liberty. If that were to be the intent, the words
“unless reasonable cause therefor is shown” would not appear in Section
205. In these circumstances by mere subjecting oneself to the tests, the
right to life and liberty guaranteed by Article 21 of the Constitution of
India is not in any way jeopardized.
44
Even the power to arrest without warrant conferred by
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Section 202 of the MV Act is subject to certain conditions and it has been
clarified that a person arrested by a police officer in connection with an
offence punishable under Section 185 shall within two hours of his arrest
be subjected to a medical examination referred to in Sections 203 and
204 by a registered medical practitioner. Failure to subject him to such
test within the time specified would result in his release from custody. The
proviso to subsection (1) of Section 202 would show that it is only when
a police officer in uniform on being satisfied that in his presence an
offence punishable under Section 184, 185 or 197 is committed that he
ig
may arrest without warrant such person. However, in connection with the
offence carved out by Section 185 a person arrested would have to be
subjected to the tests. A person can be arrested if he refuses to give his
name and address and equally what one finds is that the requirement for
a Breath Test has to be made as soon as reasonably practicable after the
commission of such offence. (see subsection (1) of Section 203).
Therefore, the power to arrest without warrant in case of the offence
punishable under Section 185 of the MV Act is only to enable a police
officer in uniform to subject a person to the tests specified in Sections 203
and 204 of the MV Act. Thereafter, it is for the law to take its course. In
such circumstances the argument that by subjecting the Applicant in this
case to a Breath Test means she was arrested and that power having been
exercised without preregistration of a First Information Report entails in
deprivation of her life and liberty, cannot be accepted.
45
If it cannot be accepted in this case and for the reasons
aforestated, then, any larger issue or wider controversy need not be gone
into. In a given case and if the arrest effected by taking recourse to
Section 202 and subsections thereof continues, then, depending upon the
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circumstances in each case a conclusion can be drawn that a person is
deprived of his life and liberty without due process of law. In that event
the competent court can make appropriate orders protecting life and
liberty of an aggrieved person. Beyond that we do not think any academic
discussion and with regard to the correctness of the view taken by the
learned Single Judge of this Court is necessary. We are of the opinion that
the learned Single Judge has not observed anything contrary to the
mandate flowing from Sections 185, 202 and 203 of the MV Act insofar as
subjecting a person to the tests enumerated therein. The learned Single
Judge's observations thereafter need not detain us because once the above
view on facts can be taken, then, the further aspects of the question as to
whether the offence punishable under Section 185 of the MV Act is
cognizable or noncognizable need not be decided. In any event, the
offence cannot be said to be cognizable only because a power is conferred
to arrest any person committing such offence, without warrant. It is
apparent that a person arrested in connection with an offence punishable
under Section 185 of the MV Act has to be subjected to a medical
examination referred to in Sections 203 and 204 by a registered medical
practitioner. The Breath Test has to be carried out so as to ascertain
whether there was presence of alcohol in his body or a person was under
the influence of a drug. Therefore, this is not an absolute power to arrest
without warrant, but subject to the conditions specified in law and there
are inbuilt safeguards and protection so that a person is not deprived of
his life and liberty. In these circumstances merely because the power to
arrest without warrant is conferred in a police officer in uniform does not
mean that the offence is cognizable. Even if a person is to be subjected to
the tests, the Police Officer must have a reasonable cause to suspect him
of having committed an offence punishable under Section 185. Therefore,
if there is a reasonable cause to suspect a person having committed an
offence punishable under Section 185, that he can be subjected to a
Breath Test and by calling upon him or requiring him subject himself to
such test, is not necessarily arrest. He could be arrested provided a Breath
Test carried out on him indicating presence of alcohol in his blood. He
cannot be arrested if he is at a hospital as an indoor patient. If the person
concerned refuses to provide a specimen of breath for a Breath Test or
fails to do so and a police officer has a reasonable cause to suspect him of
having alcohol in his blood that he may arrest that person except while
that person is in hospital as an indoor patient. Even after his arrest he
shall while at police station be given an opportunity to provide a
specimen of breath for a Breath Test. Therefore, with all this it is not as if
the offence can be said to be cognizable. Additionally also because of the
extent of punishment, namely, imprisonment for less than two years that
a conclusion can safely be reached that an offence punishable under
Section 185 of the MV Act is not cognizable.
46
For the aforesaid reasons, we find no merit in this criminal
(G.S. Patel, J)
(S.C. Dharmadhikari, J)
application. The Criminal Application is dismissed. Rule is discharged.
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