Dharampal Vs. State of UP, 2006 (2) ALL LJ 94, has found that no
prejudice has been caused to the defence of the applicant/accused or no
miscarriages of justice has occurred in this case by police investigating
the offence without obtaining permission from the Magistrate and
therefore, this would not be a case falling under the categories listed in
Section 461 Cr.P.C.3
6. Upon consideration of the case in its entirety, I could not
find any illegality or perversity in finding recorded in the order of
learned Sessions Judge with regard to investigating the case without
magistrate's permission, as no prejudice has been caused thereby to the
applicant/accused.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 4 OF 2016
MR. CHANDRAKANT DESAI, PRESENTLY
LODGED AT SUB JAIL SADA, VASCO GOA
V
STATE OF GOA,
Coram:- S. B. SHUKRE, J.
Date:- 15th February, 2016.
Citation:2016 CRLJ(NOC)351 Bom
2. Learned counsel for the revision applicant has assailed the
impugned judgment and order on two grounds (a) the investigation
could not have been carried out without sanction of the concerned
magistrate as the offence punishable under section 185 of the Motor
Vehicles Act is non cognizable and (b) secondly, no reliance could have
been placed upon the breathe test report, the same being not admissible
in evidence.2
3. Learned Addl. Public Prosecutor for the State has opposed
the application submitting that both these challenges have been
extensively dealt with by the learned Magistrate in the impugned order
and neither any illegality and/or incorrectness and/or impropriety could
be found in impugned order and therefore, this is not a fit case for
interfering with the impugned judgment and order.
4. On going through the impugned judgment and order, I find
substance in the argument of the learned Addl. Public Prosecutor for the
State and no merit in the argument of the learned counsel for the
revision applicant.
5. The learned Judicial Magistrate, by relying upon the case of
Dharampal Vs. State of UP, 2006 (2) ALL LJ 94, has found that no
prejudice has been caused to the defence of the applicant/accused or no
miscarriages of justice has occurred in this case by police investigating
the offence without obtaining permission from the Magistrate and
therefore, this would not be a case falling under the categories listed in
Section 461 Cr.P.C.3
6. Upon consideration of the case in its entirety, I could not
find any illegality or perversity in finding recorded in the order of
learned Sessions Judge with regard to investigating the case without
magistrate's permission, as no prejudice has been caused thereby to the
applicant/accused.
7. As regards the admissibility of the breathe test report under
section 202 of the M.V. Act also, I am of the view that since the offence
was committed in the presence of the police officer, the learned
Magistrate has rightly found the breathe test report as admissible in
evidence.
8. The next contention of the learned counsel for the applicant
is that the applicant is a man having his roots in the society and he has a
family of three members to support. He submits that the applicant's wife
is presently in advanced stage of pregnancy and she along with their one
child, a son, are suffering a lot of difficulty and also misery in the
absence of the applicant in their home. He also submits that this is the
applicant’s first offence and therefore, while sentencing the applicant,
leniency ought to have been shown.4
9. Learned Addl. Public Prosecutor submits that appropriate
order may be passed.
10. Having regard to the submissions of the learned counsel for
the applicant and also to the fact that there is no material on record to
enable me to reject these contentions, I am of the view that this is a fit
case in which leniency ought to have been shown. Therefore, I find that
if the sentence is modified by reducing the term of simple imprisonment
which is of one month to period of detention already undergone by the
applicant till the date, which is of three days, it shall meet the ends of
justice. Accordingly the following order is passed:
i) The revision application is partly allowed. The impugned orders
dated 22/7/15 passed by the JMFC at Pernem in Criminal Case
No.12/AOA/2013 and the order dated 12/2/2016 passed by the Addl.
Sessions Judge, Mapusa in Criminal Appeal No.131/2015 are hereby
partly quashed and set aside and now, the sentence of imprisonment
handed out to the applicant/accused by this Court shall stand modified
and be read as the sentence of imprisonment for a term restricted only to5
period of detention already undergone by the applicant/accused and thus
the applicant/accused shall now be released forthwith by the jail
authorities of Sub Jail, Sada, Vasco-da-Gama.
ii) The impugned orders in so far as they relate to imposition of fine of
Rs.2000/- upon the applicant/accused are confirmed, with a
modification that the applicant/accused shall deposit the fine amount in
the Trial Court within three days from the date of the order.
iii) The impugned orders to the extent they direct suspension of driving
licence of the revision applicant are also modified and now it is directed
that the driving licence of the applicant/accused shall be kept in
suspension for a period of only seven months from 27/7/2015, which
period shall expire on 26/2/2016. Thereafter, the driving licence of the
applicant/accused shall stand renewed and shall be returned to him.
11) Revision application is disposed of in these terms.
S. B. SHUKRE, J.
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