IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.799 of 2008 RAJ KUMAR YADAV son of Ram Janam Yadav, resident of Village-Khajura Post, Karam Nasa, P.S. Durgawati, District Kaimur(Bihar) …Petitioner Versus 1. STATE OF BIHAR 2. The Assistant Superintendent of Police, Sasaram 3. The Officer Incharge of Sheo Sagar P.S., Rohtas, District Sasaram …Respondents ----------- 5 12-01-2009 In the instant writ petition, the petitioner prays for quashing of the F.I.R. of Sheo Sagar P.S. Case No. 81/08 dated 19.6.2008 under sections 419, 420, 467, 469, 411 and 120B of the Penal Code. Before, I consider the points raised by learned counsel for the parties, it would be necessary to notice the fact of the case in brief. The informant of the case is the Officer-Incharge of Sheo Sagar P.S. On 19.6.2008 at 8 A.M. he received telephonic message from ASP, Sasaram that several over loaded vehicles were plying on N.H.2. On receipt of the information, the informant with other police officials reached near Malwar gate near G.T.Road. In course of checking, one over loaded truck bearing U.P.65 AR 3585 was apprehended. The driver of the truck informed that he has loaded metal on the truck and is coming from Jama Doma, Jharia (Jharkhand) and going to Bijnaur (U.P.). On demand of documents, a slip of paper stating that carrier is a monthly vehicle of “under load” code of Raj Kumar Yadav who runs ghosh staff line hotel. He stated that the aforesaid Raj Kumar Yadav has taken a sum of 8,000/- for free passage of over loaded truck without any scrutiny. A slip/card code bore the mobile 2 number of Raj Kumar Yadav and others. He also sated that Raj Kumar Yadav along with his nephew Santosh and Harpeet Singh are engaged in business of providing easy passage to over loaded trucks in connivance with officials of transport department. The informant alleged that the aforesaid Raj Kumar Yadav and others in league with the Enforcement Officers are engaged in unauthorized checking of vehicle and collect money from overloaded trucks and thereafter allow them passage. In this way, they are causing heavy loss to the State exchequer. Learned counsel for the petitioner has sought quashing of the F.I.R. on the following grounds; firstly he submits that the case could have been instituted only under section 194 of the Motor Vehicles Act which deals with offences of driving vehicle exceeding permissible limit. Secondly, he submits that the petitioner has passed diploma course in Mechanical Engineering in Ist Division and has appeared in various interviews for a job. The diploma certificate and interview letters are annexed as Annexure-2 and 2/A to this application. He submits that he has given ghosh hotel to one Joga Singh on rent and has no concern with the aforesaid hotel. Thirdly, he submits that F.I.R. could have been instituted by a person authorized under Road Transport Act, 1950. He submits that special enactment will prevail over general enactment. In this respect, he relied upon a decision of the Apex Court in the case of Suresh Nanda Vs Central Bureau of Investigation, (2008)3 SCC 674 as well as in the case of Janardan Singh Vs State of Bihar passed in 3 Cr.Misc.No.28063 of 2004 dated 26.2.2007. Learned counsel for the State has filed counter affidavit. He submits that the allegation constitute ingredients of offences under which the F.I.R. has been instituted. He submits that the petitioner in connivance with the Enforcement Officer and other officers of the Transport Department collect money illegally from the overloaded trucks and ensure their easy passage through the check post and local area. The money so collected is pocketed by Raj Kumar Yadav, his relatives and officials of the Transport Department. These persons collect money from such over loaded trucks on monthly basis and ensure them free passage irrespective of number of times they ply to and fro. The issue is whether prosecution is only maintainable under section 194 of the Motor Vehicles Act or whether the petitioner could be prosecuted under the General Act namely the Penal Code. According to petitioner special enactment will prevail over general enactment; and if prosecution is provided under the Special Act then the case should be instituted only under the aforesaid provision. There is no denial of the fact that special Act would prevail over the general Act wherever it is applicable and covered. If special provisions are provided for a particular offence under a Special Act, the same should be applied. The maxim generalia specialibus non derogant is a well recognized maxim and is applicable if a case stands covered by provisions special enactment. 4 In the instant case the main allegation is that the petitioner in connivance with the Enforcement officials of the Transport Department collect and squeezes money from over loaded trucks and ensures their passage causing loss to the State exchequer. The officials of the Enforcement Wing and the Transport Department are supposed to check the over loaded trucks entering in the area and are further obliged to record such cases of over loading and to collect fine and to deposit the same in the State exchequer. The officials of the Transport Department instead of conforming to the Rules, in connivance with the petitioner and others illegally collect money from the over loaded vehicles and pocket themselves. Instead the petitioner and others have organized themselves in unison to scuttle the provisions of law under the Motor Vehicles Act. They even have adopted the practice of giving special private code for a free passage on monthly term on payment of illegal gratification. The allegation is not a mere violation of section 194 of the Motor Vehicles Act. It is not a simple case where merely a vehicle was found plying exceeding permissible weight. Had the case been so, the contention of the petitioner could have been well founded and the defaulter could have been prosecuted under Motor Vehicle Act by a person authorized to institute a complaint. In the instant case, the allegation is that the petitioner in connivance with the Transport officials and public carrier collect money, distributed among themselves and allow the vehicle to ply freely causing loss to the 5 State exchequer. The substantive allegation is of committing fraud, cheating and misappropriating money in connivance with each other. In such circumstances, the allegation contained in the F.I.R. constitutes ingredients of the penal offence and as such there is no infirmity in instituting a case under the Penal Code. The cases relied by the petitioner cannot be of any aid to him as they are not applicable in the facts and circumstances of the case. In the case of Suresh Nanda (Supra) the Apex Court was considering the case of impounding of passport. The passport of Suresh Nanda was seized in the year 2006 pursuant to sting operation carried out by a news portal. The passport seized during the search was retained by the C.B.I. The order in respect of release of passport in favour of appellant Suresh Nanda by the Special Judge, C.B.I. was reversed by the Delhi High Court. The Apex Court reversed the order of the Delhi High Court and directed the C.B.I. to hand over the passport to the appellant Suresh Nanda. In the aforesaid case, the Apex Court observed that impounding of passport is provided in section 10(3) of the Passport Act and the same being a special law will prevail over the provisions of Cr.P.C. It would thus appear that the Apex Court was dealing with a case of impounding of passport which was specially provided in the Passport Act. The case in hand more relates to fraudism and cheating entered between the petitioner, officials of the Transport Department and Public carrier causing 6 loss to the State exchequer then being a case of carrying vehicle beyond permissible limit. The petitioner and other accused persons have deviced fraudulent ways so that an over loaded truck may pass freely without the money going into the government treasury. The case of Janardan Singh Vs State of Bihar relied upon by the petitioner is also not applicable in the facts of the case. In the aforesaid case, the petitioner Janardan Singh had come against the order taking cognizance under sections 418, 416, 409 of the Penal Code stating that he could have been prosecuted only the Bihar Minor, Mineral and Concession Rules, 1972 and not under the General Act. The further submission of the petitioner Janardan Singh was that the offence alleged would come under Rule 37 and 39 of the aforesaid Minor, Mineral Rules. The allegation against the petitioner Janardan Singh was to maintain business of sand and to maintain records for the purpose of payment of royalty. In course of inspection, some discrepancies were found between Transport challan and sale register to the extent of 13400 Cft. This court observed that under the Minor and Mineral Rules, there is a provision for dealing with offence relating to filing wrong return or maintaining incorrect accounts or for failure to issue challan. Rule 37 provides for realization of rents, royalty and penalty. In view of nature of allegation, this court held that the offence is specially covered by the special provisions under the special law and as such the same would prevail over the general law. 7 KHAN This court once again reiterates that the offence alleged and the extent of its demeanour is not specially covered under section 194 of the Motor Vehicles Act but instead the ingredients constitute more an offence under the penal provisions. The case is still under investigation. The investigation is made of offence and mere labeling of section is not very material at threshold. Section 194 provides for prosecution against the person who drives a motor vehicle or causes or allows the motor vehicle to be driven in contravention of the provisions of sections 113, 114, 115 of the Motor Vehicles Act. In the instant case the allegation substantially is that the petitioner in league with the Transport officials has formed a nexus for collecting and extorting money illegally from the public carrier and in turn ensures their safe passage. As such, this court does not find any merit in the submission of learned counsel for the petitioner that prosecution ought to have been only under the Motor Vehicles Act and not under the Penal Code. For the reasons stated above, this writ petition is dismissed. However, it will be open to the petitioner to move appropriate application if subsequent cause of action arises. (S.P.Singh,J)