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Allahabad High Court · body

1994 DIGILAW 684 (ALL)

Jugal Kishore v. State of U. P.

1994-10-04

J.S.SIDHU, V.N.KHARE

body1994
JUDGMENT : V.N. Khare, J. When these petitions were filed, this Court directed the learned Standing Counsel to file counter affidavit on behalf of the Respondents. In pursuance of those orders Respondents have filed a counter affidavit in Civil Misc. Writ Petition No. 30122 of 1994. Learned Standing Counsel submitted that since the stand taken by the Respondents is identical in all the writ petitions the counter affidavit filed in Writ Petition No. 30122 of 1994 may be read in all the petitions In which counter affidavits had been called for. Learned Counsel for the Petitioner does not propose to file any rejoinder affidavit. Learned Counsel for the parties are agreed that these petitions may be disposed of at the admission, stage. Accordingly, we propose to decide all these petitions finally. 2. These petitions can be split into three sets of writ petitions. The first set consists of writ petitions No. 30109 of 1994, 30122 of 1994, 30135 of 1994, 30149 of 1994, 30151 of 1994, 30317 of 1994, 30670 of 1994, 31034 of 1994, 31131 of 1994, 31123 of 1994, 31024 of 1994, 31125 of 1994, and 31129, of 1994 and 30933 of 1994 the second set of writ petitions are 30111 of 1994, 31318 of 1994 and the third set of writ petition are 30016 of 1994 A 30676 of 1994. 3. The Petitioners in all these writ petitions are carrying on transport business. For that purpose they hold temporary/permanent contracts or stage carriage permits and are operating on different routes within the State of Uttar Pradesh It appears that while the Petitioners were plying their vehicles the Respondents seized their vehicles either on the ground that vehicles were being plied in contravention of Sections 3 and 4 of Section 39 or without the permits required by Sub-section (1) of Section 66 of the Act (Motor Vehicles Act 1988) or in contravention of condition of the permits relating to the routes. It it that stage the Petitioners approached this Court by means of these petitions under Article 226 of the Constitution and prayed 'or issue of directions either to the Respondents or to the appropriate Court for releasing their vehicles so seized. In the first set of writ petitions the prayer is that the person authorised by the State Government may be directed to release/their vehicles. In the first set of writ petitions the prayer is that the person authorised by the State Government may be directed to release/their vehicles. In the second set of writ petitions the prayer is that the Circular dated 18th August 1994 may be quashed and further the matter may be referred to the respective Courts for trial of the offences in accordance with the provisions of the Code of Criminal Procedure while in the third group, it is alleged that the Petitioners moved applications before the respective Chief Judicial Magistrate for release of their vehicles u/s 451 Code of Criminal Procedure but that their applications were turned down on the ground that Courts were not competent to deal with the matter. 4. Sri L.P. Naithani, learned Counsel for the Petitioners urged that police officers or persons authorised by the State Government have no power to release the vehicle so seized and as it is incumbent upon the police officers or the persons so authorised to refer the complaints to the competent court of law for trial of offence. In substance the argument is that executive authorities have no jurisdiction to try the offences alleged to be committed by the Petitioners, On the other hand, the stand of Respondents is that It is only the police officers or persons so authorised who are competent to try the offence. 5. Section 207 of the Motor Vehicles Act 1988 (hereinafter referred to as the Act) provides that any police officer or person so authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 40 or without the permit required by Sub-section (1) of Section 66 or 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, seized and detain the vehicle. It may be seen, there are three situations where a vehicle may be seized and detained, firstly when he has reason to believe that the motor vehicle has been used in contravention of the provisions of Section 3 or Section 4 or Section 39 Of the Act, facedly, when the vehicle has been or is being used without permit required by Sub-section (1) of Section 66 of the Act and thirdly, when the vehicle has been or is begot used in contravention of any condition of such permit relating to the route en which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle. Thus a police officer or person authorised can exercise power of seizure and detention in three situations, namely when he has reason to believe that the motor vehicle has been used in contravention of the provisions of Section 3 or Section 4 or Section 39 of the Act, secondly when the Vehicle has been or is being used without permit required by Sub-section (1) of Section 66 of the Act and thirdly when the vehicle has been or is being used 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. Sections 177 to 210 (Chapter XIII) of the Act lay down that contravention of any provision of the Act or of any rule, regulation or notification made thereunder shall constitute an offence and provide the penalties for the offences so committed and the procedure therefor. Sections 177 to 210 (Chapter XIII) of the Act lay down that contravention of any provision of the Act or of any rule, regulation or notification made thereunder shall constitute an offence and provide the penalties for the offences so committed and the procedure therefor. u/s 192 of the Act the offence committed by driving a motor vehicle or causing or allowing a motor vehicle to be used in contravention of the provisions of Section 39 or without the permit required by sub-section (1) of lection 66 or 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 or to the maximum number of passengers and maximum weight of luggage that may be carried on the chicly, is punishable for the first offence with, fine which may extend to two the thousand rupees and for any second or subsequent offence with imprisonment which may extend to six months or with fine which may extend to three thousand rupees, or with both with the proviso that no Court shall, except for reasons to be Mated in writing, impose a fine of lee than five hundred rupees for any such second or subsequent offence. Section 200(1) of the Act provides that any offence whether committed before or after the commencement of this Act punishable u/s 177, Section 178, Section 179, Section 180, Section 181, Section 182, Sub-section (1) or Sub-section (2) of Section 183, Section 184, Section 187, Section 189, Section 191, Section 192. Section 194, Section 196 or Section 198 of the Act may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may by notification in the Official Gazette specify in this behalf. Section 200(2) of the Act further provides that where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. 6. Section 200(2) of the Act further provides that where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. 6. By virtue of the aforenoticed provisions the plying of vehicle by any person without a permit or without registration certificate or contrary to the conditions of the permit is an offence and any police officer or person authorised by the State Government is empowered to seize and detain the vehicle if he has reason to believe that the motor vehicle has been or is being used in contravention of the provisions of the Act. 7. The next question is what further course is to be adopted after a police officer or authorised person has seize and detained a vehicle as contemplated u/s 207 of the Act. The purpose of seizure of a vehicle interlaid is to prevent the repetition of commission of offence, to prohibit the plying of the vehicle again, to utilise the seized vehicle as a material evidence when the offence is tried in the court of law and to enable the court to pass appropriate order for its disposal. The seizure and detention of a vehicle u/s 207 of the Act is for a temporary period that is, till the time the owner of the vehicle satisfies the police officer or authorised person that no offence such as that mentioned in Section 207 of the Act has been or was being committed or the offence is compounded or the matter is decided by a court of law. Since the detention is for a temporary period the public officer or authorised person may himself release the vehicle in favour of the owner subject to furnishing security to his satisfaction. However, this temporary release is to be subject to the final order that may be passed by the police officer or authorised person or by the court of law. Therefore, as noticed, if the owner of the vehicle satisfies the police officer or the authorised person that he has not contravened any provision of the law or if the offence is compounded then nothing further is required except release of the vehicle in favour of the owner. Therefore, as noticed, if the owner of the vehicle satisfies the police officer or the authorised person that he has not contravened any provision of the law or if the offence is compounded then nothing further is required except release of the vehicle in favour of the owner. In the situation that the offence is not compounded the police officer or authorised person has to refer the complaint before the Magistrate competent to try the offence. Section 208 of the Act provides for summary disposal of cases by the Court thus taking cognizance of any offence under the Act other than as offence which the Central Government may by rules specify in this behalf. Section 4(2) of the Code of Criminal Procedure provides that all offences under any other law shall be investigated inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. On the complaint being filed before him the competent Magistrate as laid down by Section 208 of the Act has to be proceeded to summarily dispose of the case for commission of an offence under the Act other than the offence which the Central Government may by rules specify in that behalf. The competent Magistrate on (he complaint being filed before him is empowered u/s 451 of the Code of Criminal Procedure, if he so thinks fit, to release the vehicle on supporter on security being furnished to hit satisfaction and subsequently to pass an order u/s 452 Code of Criminal Procedure for disposal of the vehicle at the conclusion of the trial. A situation may arise where the police officer or person so authorised in this behalf by the State Government neither compounds the office nor files a complaint before the Magistrate competent to try the case within a reasonable time. In that eventuality the owner of the vehicle is not without remedy and Article 226 of the Constitution is always available to him. in such a petition, If filed, direction can be issued by the High Court to the police officer or person authorised to refer the complaint to the Magistrate competent to try the office, The Supreme Court in the case of the The Transport Commissioner, Andhra Pradesh, Hyderabad and Another Vs. in such a petition, If filed, direction can be issued by the High Court to the police officer or person authorised to refer the complaint to the Magistrate competent to try the office, The Supreme Court in the case of the The Transport Commissioner, Andhra Pradesh, Hyderabad and Another Vs. S. Sardar ali, Bus Owner, Hyderabad and Others, AIR 1983 SC 1225 held that Section 129-A of the repealed Motor Vehicle Act of 1939 which corresponds to Section 207 of the new Motor Vehicle Act of 1988 (Section 129-A) is not ultra vires Article 19(1)(g) of the Constitution. 8. The extreme arguments advanced by learned Counsel for the Petitioner and learned Standing Counsel that it is only the competent magistrate has exclusive jurisdiction to try the offence or the stand of Respondents that it is only the police officer or person authorised has exclusive jurisdiction in that regard does not borne out from the provisions of the Act. The argument tried to be pressed into service by the learned Counsel for the Petitioners before us that the Magistrate competent to try au offence under the Motor Vehicles Act 1988 has the jurisdiction even without the complaint being filed before him to release the vehicle u/s 451 and 452 Code of Criminal Procedure in view of the law discussed above, is wholly untenable and cannot be sustained. The Magistrate competent to try an office under the Act acquires jurisdiction only when the complaint is laid before him and not before them. Thus, without the complaint being filed before the Magistrate competent to try the offence he cannot by any stretch of reasoning or imagination pass an order for release of the vehicle either u/s 451 or Section 452 Code of Criminal Procedure. Similarly the stand taken by Respondents that it is only the police officer or person authorised is competent to try the offence has no legs to stand. In fact the provisions of the Act bear out that legislature has envisaged an Integrated scheme beginning from seizure of vehicle found plying in contravention of provisions of the Act ending with trial of offence by the Competent court of law. 9. In fact the provisions of the Act bear out that legislature has envisaged an Integrated scheme beginning from seizure of vehicle found plying in contravention of provisions of the Act ending with trial of offence by the Competent court of law. 9. The clear cut and unambiguous position under the law that emerges end admits of no contradiction is that on a vehicle being seized and detained by a police officer or other person authorised in this behalf by the State Government on his having reason to believe that one OF other of the offences specified punishable u/s 192 of the Act has been or is being committed, he has to consider first for temporary release of vehicle subject to owners furnishing security to his satisfaction within reasonable period of time. If the vehicle is not released temporarily the police officer of person authorised has to decide the question as to whether the owner hat committed any offence or the offence is to be compounded. This exercise has also to be completed within reasonable period of time. When the police officer of authorised person does not release the vehicle so seized on being satisfied that an offence has been committed or refuses to compound the offence, he Is duty bound to complete the investigation/inquiry within a reasonable time. What is a reasonable time in a given case would depend on the peculiar facts and circumstances of that case and to file a complaint before the Magistrate competent to try the case and the Magistrate on the complaint being so laid before him would have the jurisdiction to release the vehicle pending trial as provided u/s 451 Code of Criminal Procedure and later on to pass an order as to the final disposal of the vehicle as provided u/s 452 Code of Criminal Procedure at the conclusion of the trial. If the complaint in not laid before the Magistrate within a reasonable time it is always open to the owner of the vehicle to approach the Court under Article 226 of the Constitution. The Petitioners in all the Writ petitions can have their remedy under the law in the light of our foregoing observations. In the end we direct the Respondents to act in accordance with the observations made in this judgment. 10. With these directions these Writ Petitions ace disposed of finally. 11. The Petitioners in all the Writ petitions can have their remedy under the law in the light of our foregoing observations. In the end we direct the Respondents to act in accordance with the observations made in this judgment. 10. With these directions these Writ Petitions ace disposed of finally. 11. A certified copy of this order may be given to the learned Counsel for the Petitioners on payment of usual charges, if possible within three days.