STATE Vs. R P SHARMA

JUDGEMENT

(1.) This appeal is directed against thejudgment dated 5/12/1995 passed by the learned Metropolitan Magistrate, Delhi acquitting the respondent for offenceunder section 190(2) of the Motor Vehicles Act, 1988. Brieflythe facts are that the respondent had been summoned under section 2:) Criminal Procedure Code . on me allegation that on 21/07/1995 atabout 9.55 A.M. he was fomia driving vehicle No. DL-2CD 2892at the Raja Garden Chowk, New Delhi The vehicle driven by therespondent was found emitting excessive smoke density in violation of Rule 115 of the Central Motor Vehicles Rules, 1989hereinafter referred to as the CMV Rules). The respondent pleaded not guilty and claimed trial. On checking for pollution thevehicle driven by the accused was found to be emitting smokedensity of Carbon Monoxide 5.7 per cent which is far in excessto the standard prescribed in sub-rule (2) of Rule 115 accordingto which it should not exceed 3 per cent by volume.

(2.) On facts there is no dispute in this case because in hisstatement under section 313 Criminal Procedure Code . the accused admitted thathe was driving the Maruti Van No. DL-2CD 2892 and pollutionof the same was checked and was found as per the meter to be6 5.7 per cent smoke density. The learned Metropolitan Magistrateacquitted the accused purely on the basis of a construction ofRules 115 and 116 of the CMV Rules. The learned counsel forthe appellant has challenged the interpretation placed' by thelearned Metropolitan Magistrate on the said Rules and the reasoning contained in the impugned judgment. Since a pure question of law regarding interpretation of the said Rules is involvedit will be appropriate to reproduce the relevant portoions of theRules:

(3.) The learned Metropolitan Magistrate posed the followingquestions for consideration in the case "the only question whichis required to be answered by this Court is whether Inspectors ofState Transport Authority are empowered to challan the driverof the vehicles, which are found emitting smoke density withoutfollowing the procedure laid down under rule 116 of the CMVRules ? The Question was answered holding the the Inspectorsof the State Authority cannot challan the motorists for violationof the provisions of sub-rule (2) of sub-rule F7) of Rule 115without following the procedure laid down under Rule 1)6. Onthe basis of the opening words of Pule 116, i.e,, "Notwithstandinganything contained in sub-rule (7) of Rule 115 any officer. . . .who has reason to believe that a motor vehicle is not complyingwith the provisions of sub-rule (2) of sub-rule (7) of Rule 115may in writing direct. . . . . . it was held that Rule 116 has anover-riding effect and in every case where Rule 1 15 is to be invokedthe inspectors must first follow the procedure proscribed underRule 116. The learned judge further concluded that from a barereading of Rule 116 it becomes char that Inspectors of motorvehicles have no power to circumvent the procedure laid downA under Rule 116. They cannot challan anybody directly underRule 115 read with section 190 Motor Vehicles Act without following the procedure laid down in Rule 116. The learned Metropolitan Magistrate was conscious of the consequences of his decision because he observed in the impugned judgment that tillRule 116 is in force, it will not be possible to control pollutioneffectively and, therefore, he recommended that Rule 116 shouldbe abolished.