{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1091 OF 2009 1. Sunil Pandharinath Patil PETITIONERS Age-32 years, Occ-Driver, R/o Sakri, Tq-Sakri, Dist-Dhule 2. Dadabhai Uttam Borse Age-36 years, Occ-Driver, R/o Kundane (Var) Tq & Dist-Dhule 3. Manohar Pandharinath Patil Age-35 years, Occ-Driver R/o Sakri, Dist-Dhule 4. Sunil Keshav Nerkar Age-34 years, Occ-Driver R/o Mohadi Upnagar, Dhule Dist-Dhule 5. Madhukar Khandu Mali Age-22 years, Occ-Driver R/o Ner, Tq & Dist-Dhule 6. Narayan Lalchand Patil Age-34 years, Occ-Driver R/o Kundane, Tq & Dist-Dhule 7. Dinesh Pandurang Wagh Age-27 years, Occ-Driver R/o Sakri, Dist-Dhule 8. Shailendra Dharma Deurkar Age-35 years, Occ-Driver {2} R/o Deur, Tq & Dist-Dhule 9. Vijay Vasant More Age-28 years, Occ-Driver R/o Mahindale, Tq & Dist-Dhule 10. Naresh Prakash Wagh Age-32 years, Occ-Driver R/o War Kundane, Tq & Dist-Dhule VERSUS 1. The State of Maharashtra RESPONDENTS 2. The Superintendent of Police, Dhule 3. Police Inspector, City Police Station, Dhule 4. Police Inspector City Traffic Branch, Dhule 5. N.S.Kale, Police Constable B.N.738 Dhule City Police Station, Dhule 6. Dharmendra Ambar Mohite Police Naik, B.No.650 Dhule City Police Station, Dhule 7. Ananda Kathu More Police Constable B.No.709 Dhule City Police Station, Dhule 8. Anil Kailas Pawar Police Constable B.No.768 Dhule City Police Station, Dhule {3} 9. B.C.Patil, Police Naik, B.No.472 Dhule City Police Station, Dhule 10. N.B.Mahajan, Police Constable B.No.1134 Dhule City Police station, Dhule 11. Kailas Manik Patil Police Constable B.No.854 Dhule City Police Station, Dhule ....... Mr. S.P.Chapalgaonkar, Advocate for the petitioners Mr. B.V.Wagh, APP for respondents State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 30 th September 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. This is a petition filed under Article 226 of the Constitution of India by which the petitioners pray for issuance of a writ at prayer clause “B”, “C” and “D”. “B-By appropriate writ of mandamus, the respondents be directed to follow the amendment in Sec.192 of the Motor Vehicles Act which came into effect from 14.11.1994 and specially the circular dated 06.12.2000 issued by the Superintendent of Police, Dhule. C- By appropriate writ of prohibition, the respondents be directed not to file challans using sections of the Motor Vehicles Act which are not applicable in the instances cited therein. {4} D-The prosecution against these petitioners, as detailed at paragraph 11 of this writ petition (Copies of the challan at Exhibit-B collectively) may kindly be quashed. 2. The petitioners contend that cases have been filed against the petitioners for offence punishable u/s 66 and 192 of the Motor Vehicles Act. According to learned counsel for the petitioners the provisions of section 192 of the Motor Vehicles Act are not applicable to the cases of the petitioners. Therefore, a relief is prayed for issuance of a writ of mandamus directing the respondents to file appropriate provision of law and file challans under the said provision. According to us, the aforesaid reliefs which the petitioners have prayed for vide prayer clause “B” and “C”, cannot be granted to the petitioners. The authorities investigating the matter have the discretion of filing the challans in respect of violation of the provision, which according to them has been violated by the offender. It is ultimately for the court to decide if the violation alleged is in fact violation or not. The petitioners have appropriate remedy when the matters are placed before the Magistrate and the cases will be tried. In respect of the relief, which the petitioners have sought at prayer clause “D” to the petition, we are informed by the learned counsel for the parties that the cases are pending decision before the Magistrate. In that light of the matter, therefore, according to us, no relief can be granted to the petitioners. {5} 3. Present Section 192 and section 192-A came to be amended and these sections replaced the original section 192. The original section 192 has now been split in these two sections i.e. sections 192 and 192-A. The present section 192-A contemplates that if a motor vehicle is used in contravention of the provisions of sub section (1) of the section 66 in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punished. Section 66 of the Motor Vehicles Act reads thus - 66. Necessity for permits. (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contact carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. (2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: {6} [Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi- trailer] (3) The provisions of sub-section (1) shall not apply- (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleaning, road watering or conservancy purposes; (c) to any transport vehicle used solely for police, fire brigade or ambulance purposes; (d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses; (e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety; (f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf; (g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms; {7} (j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods; (k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination; (n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify; (o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or (p) to any transport vehicle while proceeding empty to any place for purpose of repair. 4. Subject to the provisions of sub-section (3), sub section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.” 4. Section 66 clearly indicates that no motor vehicle shall be used in contravention of the condition of permit whether or not the motor vehicle is actually carrying any passengers or goods. Section 192-A is limited in respect of the contravention of the permit relating to the route or area or the purpose for which the {8} vehicle is permitted to be used. The petitioners obviously have been challaned for carrying passengers in excess of the permissible limit, as prescribed by the conditions of the permit. 5. Since the criminal cases are pending decision before the Court, we refrain from deciding the question as to whether the contravention of the petitioners in carrying passengers in excess of the permissible limits as per the permit would amount to violation for which cases are pending before the Court. 6. For the reasons, which are stated above, we see no merit in the present petition and the petition, therefore, is dismissed. Any observation made by us, touching the merit of the matter, shall be ignored by the trial magistrate while deciding the cases pending against the petitioners. Rule, therefore, stands discharged with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/cwp1091-09