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1998 DIGILAW 371 (RAJ)

Noor Khan v. State of Rajasthan

1998-03-17

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J.–Core question that cropped up for consideration in the instant petition is, as to whether the provisions contained in section 457 of the Code of Criminal Procedure (for short the Cr.P.C.) are attracted in respect of vehicles seized under Section 207 of the Motor Vehicles Act 1988 (for short the M.V Act). (2). This question emerges in the circumstances set out below - (i) The petitioner is the registered owner of Jeep No. RJ 29 C 0058 on November 11, 1997 the Motor Vehicle Inspector Dausa seized the said jeep under Sec. 207 of the M.V Act on the allegation that it was found plying by driver Nasirkhan without having Registration Certificate OTT (one time tax) Insurance Certificate, Driving Licence and Permit Certificate. Eleven passengers were found travelling and it was being used on hire reward. Seizure memo of the Jeep was prepared by the Inspector and it was got signed by the Driver Nasir Khan. (ii) An application under Section 457 Cr.P.C. was filed by the petitioner seeking release of the vehicle, before the learned Special Mobile Additional Chief Judicial Magistrate Jaipur. The said application was dismissed vide order dated January 7, 1998. (iii) Against this order that the present action for filing the instant petition under Sec. 482 Cr.PC. has been resorted to by the petitioner. (3). A.K. Sahdadpuri, learned counsel appearing for the petitioner has assailed the impugned order on the ground that it was incumbent upon the learned court below to release the vehicle under Section 457 Cr.P.C. The persons who were found travelling in the jeep were not passengers but they were personal members. All the required documents are with the petitioner and the jeep ought to have been released. Reliance was placed on Mahendra Singh vs. The State of Rajasthan (1) Sardar Singh vs. State (2) and Jamuna Devi vs. State (3). (4). On the other hand Mr. S.R. Yadav, learned Govt. Advocate canvassed that provisions contained in Section 457 Cr.P.C. are not applicable to the seizure of vehicles under the provisions of the M.V.Act. Mr. Yadav, learned counsel supported the impugned order and placed reliance on Shrangdhar Sharma vs. The State of Bihar (4), State of Rajasthan vs. Mohammad Nissar (5) and Suchrata vs. State of Raiasthan (6). (5). Advocate canvassed that provisions contained in Section 457 Cr.P.C. are not applicable to the seizure of vehicles under the provisions of the M.V.Act. Mr. Yadav, learned counsel supported the impugned order and placed reliance on Shrangdhar Sharma vs. The State of Bihar (4), State of Rajasthan vs. Mohammad Nissar (5) and Suchrata vs. State of Raiasthan (6). (5). I have given my thoughtful consideration to the rival submissions and carefully perused the impugned order as well as documents produced before me. (6). Reference of the relevant provisions of the M.V. Act is necessary at this juncture. Section 207 of the M.V Act provides thus : ``207. Power to detain vehicles used without certificate of registration permit etc. (1) Any police officer or other person 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 39 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 detained the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle: Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. (2) Where a motor vehicle has been seized and detained under sub- section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose." Section 66(1) of the M.V Act reads as under - ``66. Necessity for permits. 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 authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. (7). Thus, according to section 66 (1) of the M.V Act, no motor vehicle can be used as a transport vehicle in any public place without there being a permit, for the purpose. If a motor vehicle is seized and detained for violation of the provisions of Sec. 66(1) then the owner of the vehicle may apply u/Sec. 207 (2) of the M.V Act for release of the vehicle to the Transport Authority or any other authorised officer. (8). Flouting the provisions contained in section 66(1) is an offence under Section 192 A of the M.V. Act which provides thus - ``192 A-Using vehicle without permit - (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extent to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both: Provided that the court may for reasons to be recorded, impose a lesser punishment. (2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose: Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use. (3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub- section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made. (9). Section 208 of the M.V Act provides for summary disposal of cases. It reads thus - ``208 - Summary disposal of cases - (1) The Court taking cognizance of any offence (other than an offence which the Central Government may by rules specify in this behalf) under this Act, (i) may, if the offence is an offence punishable with imprisonment under this Act; and (ii) shall, in any other case, state upon the summons to be served on the accused person that he- (a) may appear by pleader or in person; or (b) may, by a specified date prior to the hearing of the charge, plead guilty to the charge and remit to the Court, by money order, such sum (not exceeding the maximum fine that may be imposed for the offence) as the court may specify, and the plea of guilt indicated in the money order coupon itself: Provided that the Court shall, in the case of any of the offences referred to in sub-section (2), state upon the summons that the accused person, if he pleads guilty, shall so plead in the manner specified in clause (b) and shall forward his driving licence to the Court with his letter containing such plea. (2) Where the offence dealt with in accordance with sub- section (1) is an offence specified by the Central Government by rules for the purposes of this sub-section, the court shall, if the accused person pleads guilty to the charge and forward his driving licence to the court with the letter containing his plea, make an endorsement of such conviction on his driving licence. (3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub- section (1), or as the case may be, sub-sections (1) and (2), no further proceedings in respect of the offence shall be taken against him nor shall he be liable, notwithstanding anything to the contrary contained in this Act, to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty. (10). Now 1 shall take up certain relevant provisions of the Rajasthan Motor Vehicles Taxation Act 1951 (for short the M.V Taxation Act). Section 17 of the M.V Act Taxation Act provides thus - ``17. Power to stop a motor vehicle. - (1) Any police officer in uniform not below such rank, as may be prescribed and any officer of the Transport Department not below the rank of a Sub-Inspector and any officer of the Commercial Taxes Department not below the rank of an Inspector posted at the check posts controlled by the Commercial Taxes Department may require the driver of any motor vehicle in any public place to stop the vehicle and cause it to remain stationary so long as may reasonably be necessary for the purpose of satisfying himself that the amount of the tax due in accordance with the provisions of this Act in respect of such vehicle has been paid. (2) Where any tax due in respect of any vehicle has not been paid, any officer referred to in sub-section (1), may seize and detain such vehicle and take or cause to be taken such steps as he may consider necessary for the safe custody of the vehicle until it is produced before the Taxation Officer of the area concerned within a reasonable time or the tax due in respect of the vehicle is paid : Provided that where the vehicle so seized is a non-transport vehicle such officer may release the vehicle after obtaining a bond for a sum not exceeding Rs. 500/- from the driver or the owner or any person having possession or control of the vehicle, as the case may be, for depositing the tax within the period specified in the bond : Provided further that the provisions of sub-section (2) shall not apply to non-transport vehicle registered in Rajasthan. 500/- from the driver or the owner or any person having possession or control of the vehicle, as the case may be, for depositing the tax within the period specified in the bond : Provided further that the provisions of sub-section (2) shall not apply to non-transport vehicle registered in Rajasthan. Non-payment of Tax is an offence, under Section 11 of the M.V. Taxation Act, which reads as under - ``11. Offences. - (1) Whoever- (a) as a registered owner or otherwise, has the possession or control of any motor vehicle used or kept for use in the State without having paid the amount of the tax or additional tax, due in accordance with the provisions of this Act in respect of such vehicle; or (b) delivers a declaration or additional declaration wherein the particulars required by or under this Act, to be therein set forth, are not fully and truly stated or (c) obstructs any officer in the exercise of the powers conferred by Section 18 or fails to stop the motor vehicle when required so to do by such officer under section 17; shall on conviction, be punishable with fine, which may extend to a sum equal to twice the annual tax payable in respect of such vehicle. (2) Whoever contravenes any of the provisions of this Act or any rules made thereunder, and no penalty is provided for such a contravention, shall on conviction, be punishable with fine which may extent to three hundred rupees, and in the event of such person having been previously convicted of an offence under this Act or rules made thereunder, with fine which may extent to six hundred rupees. Sec. 15 of the M.V Taxation Act is also relevant which provides thus: ``15. Cognizance of offence. - No Court inferior to that of a Magistrate of the Second Class shall try any offence punishable under this Act. 11. The legal position that emerges from the statutory provisions may be summarised thus - (i) Plying motor vehicle without permit flouting the provisions of Sec. 66(1) is an offence punishable, under section 192 A of the M.V. Act. (ii) Authorised persons have powers to seize and detain such vehicle under section 207 (1) of the M.V. Act. They have, however, discretion only to seize the certificate of registration of the vehicle instead of detaining the vehicle itself. (ii) Authorised persons have powers to seize and detain such vehicle under section 207 (1) of the M.V. Act. They have, however, discretion only to seize the certificate of registration of the vehicle instead of detaining the vehicle itself. (iii) Under sub-section (2) of Section 207 the owner of the vehicle may apply for the release of the vehicle before the transport authority or any other authorised officer. (iv) Under section 208 of the M.V. Act, the court taking cognizance of the offences is vested with the power to dispose of the cases summarily. It is directed that if the accused pleads guilty through money order coupon and remit fine, no further proceedings shall be taken against him. (v) Under Section 17 of the M.V. Taxation Act authorised person may stop the vehicle for the purpose of satisfying themselves that the amount of tax is paid or not. When the tax is found due the vehicle may be detained and seized, where the vehicle so seized is non-transport, it may be released after obtaining a bond for a sum not exceeding Rs. 500/- for depositing the tax within the period specified in the bond. (vi) Non-payment of tax is an offence under section 1 1 of the M.V. Taxation Act. (vii) No court inferior to that of a Magistrate of Second Class shall try any offence punishable under the M.V. Taxation Act. (12). Two conditions must be fulfilled before the power under section 457 Cr.P.C. can be exercised, the first condition being that the seizure of the property is reported to the Magistrate and, secondly the property is not produced before the criminal court in an enquiry or trial. The placing of the report by the police or other officer before a Magistrate is not condition precedent to the entertainment of an application under the section. If the fact of seizure is brought to the notice of the Magistrate by any party interested or even by a party who applies for delivery of the property it is sufficient to give jurisdiction to the Magistrate to entertain and deal with the application. (13). This Court (Honble Mohd. Yamin J,) in State of Rajasthan vs. Mohd. If the fact of seizure is brought to the notice of the Magistrate by any party interested or even by a party who applies for delivery of the property it is sufficient to give jurisdiction to the Magistrate to entertain and deal with the application. (13). This Court (Honble Mohd. Yamin J,) in State of Rajasthan vs. Mohd. Nissar (supra) took the view that when the vehicle is seized on the ground of non-payment of Tax, under the provisions of Motor Vehicles Act or Motor Vehicle Taxation Act, the procedure prescribed under the Motor Vehicles Act shall be applicable and the jurisdiction of the Magistrate under Section 457 Cr.P.C. shall stand excluded by virtue of provisions contained in section 4 of the Cr.P.C. in the said decision his Lordship also made a reference of the Circular issued by the High Court vide No. 4/P.1 dated July 28, 1975 addressed to all subordinate courts on the subject of release of motor vehicles seized by the transport officers for non-payment of tax. The circular reads as under - ``I am directed to say that it has been brought to the notice of the Court that some Judicial Magistrates have ordered the release of those vehicles which had been seized under section 17(2) of the Motor Vehicles Act, on execution of personal bonds of petty amounts. The section provides that where any tax due in respect of any vehicle has not been paid, any police officer not below such rank as may be prescribed, and any officer of Transport Department not below the rank of a Sub Inspector, and any officer of the Commercial Taxes Department not below of an Inspector posted at the check posts controlled by the Commercial Taxes Department may seize and detain such vehicle and take or cause to be taken such steps as he may consider necessary for the safe custody of the vehicle until it is produced before the Taxation Officer of the area concerned within a reasonable time or the tax due in respect of the vehicle is paid. It appeared that it cannot be said in such cases that the vehicle has been seized with respect of any offence, and a Judicial Magistrate will have no jurisdiction to order its release in exercise of the powers under the Code of Criminal Procedure. It appeared that it cannot be said in such cases that the vehicle has been seized with respect of any offence, and a Judicial Magistrate will have no jurisdiction to order its release in exercise of the powers under the Code of Criminal Procedure. The notices, legal position should therefore be kept in view while entertaining such cases. After referring the above noted circular, this court in State of Rajasthan vs. Mohd. Nissar (supra) observed thus - ``It means, that if any other procedure is provided under any other law, the matters relating to them will be dealt with according to the provisions of those special laws. Learned Magistrate, who released the vehicle by impugned order, did not care either to see the provisions of the Code of Criminal Procedure or the circular of the High Court which was issued on the administrative side in order to draw the attention of the subordinate Magistrates. The learned Magistrate vide his order released the vehicle to Mohd. Nissar on his application which is Annexure-4 and which also mentions that the tax due against the vehicle was w.e.f. 1.7.94 to 30.6.95 and the special road tax was from July 1994 to July 1995. When the situation was such that the Magistrate could not have released the vehicle, he has definitely transgressed his jurisdiction by releasing the vehicle under Section 457 Cr.P.C. on the application of Mohd. Nissar. His order is bad in law or deserves to be quashed. Besides my experience is that the circulars which are issued by the High Court to the Subordinate Courts are not being kept in view and in this case specially the learned Magistrate did not care to see the circular which was issued to the subordinate Courts for the personal attention of the Presiding Officers. (14). This opinion was again expressed in Sucharan vs. State (supra) by this Court. (15). Patna High Court, in Shrangdhar vs. State of Bihar (supra) also indicated that in view of the provisions contained In Section 4 Cr.P.C. the powers of releasing the Motor Vehicle seized under Section 207 of the Motor Vehicles Act, have been conferred on specified authorities, therefore, impliedly in this regard the power of the Magistrate under Section 457 Cr.P.C.being a Court of general jurisdiction, will stand excluded. (16). (16). But their lordships of the Supreme Court in Transport Commissioner vs. Sardar Ali (7) propounded thus ``A pre-condition to the seizure and detention of the vehicle is that the police officer or authorised person must have reason to believe that one or the other of the offences specified, punishable under Section 123 (Now Section 192) has been or is being committed. Whenever property involved in the commission of an offence is seized, the seizure is generally expected to serve a manifold purpose such as to prevent repetition of the offence, to sue the thing seized as material evidence in the prosecution, to preserve the property so as to enable the Court to pass appropriate orders for its disposal by way of destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise. There is no reason to assume that the seizure under Section 129A (Now Section 207) is any different and is not to serve any of these purposes or any purpose at all. (17). Section 4 Cr.P.C. provides thus : ``4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other laws 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. (18). Division Bench of Madras High Court in 1984 Cr.L.J. 892 (8) has occasion to consider Section 4(2) Cr.P.C. It was propounded that - ``For the complete exclusion of the application of the Criminal Procedure Code, the law regarding the procedure to be followed in cases falling under the Special Act must be found in the enactment itself conferring jurisdiction to try the case, as contemplated in Section 4(2) of Cr.P.C. The existence of a special law or local law by itself cannot be taken to exclude the operation of the Criminal Procedure Code, unless such law prescribes a special procedure for the trial of the offence, thereby excluding impliedly or expressly, the operation of the Code in respect of such trial. (19). (19). A look at the provisions contained in the M.V Act goes to show that jurisdiction of Criminal Court is not ousted by its framers. Procedure for the trial of the offences has been prescribed in Section 208 of the M.V. Act. The Court taking cognizance of offence, may state upon the summons that the accused may appear by pleader or person or may plead guilty to the charge and remit the specified fine through money order. Sub-section (3) of Section 208 further provides that if the accused pleads guilty, no further proceedings in respect of the offence shall be taken against him. (20). But what would happen if the accused does not plead guilty? Obviously further proceedings shall be taken against him. The M.V Act is silent about the procedure to be followed for such further proceedings. Undoubtedly the provisions contained for summary trial of the offences under the Code of Criminal Procedure shall be followed. My view finds support from Malepati Narayana and another vs. Station House Officer, Badvel (9) whereby the Division Bench of Andhra Pradesh High Court indicated that, where an enactment provides a special procedure only for some matters, its provisions will apply in regard to those matters and the provisions of Cr.P.C. will apply to the matters on which the enactment is silent. (21). Their lordships of the Supreme Court in State of Madhya Pradesh and others vs. Rameshwar Rathod (10) propounded that when a vehicle was seized by the police for alleged contravention of the provisions of the Essential Commodities Act 1955, Criminal Court could entertain an application for return of the vehicle because the jurisdiction of criminal Court to entertain such application is not ousted by the Amendment made in the Essential Commodities Act by Amendment Act (30 of 1974). In M.V Act or M.V Taxation Act, the jurisdiction of Criminal Court to entertain application under Section 457 Cr.P.C., is not ousted. An option however, has been given to the owner of the vehicle under Section 207(2) of the M.V Act to make an application for the release of the vehicle before the Transport Authority or any other authorised officer. In M.V Act or M.V Taxation Act, the jurisdiction of Criminal Court to entertain application under Section 457 Cr.P.C., is not ousted. An option however, has been given to the owner of the vehicle under Section 207(2) of the M.V Act to make an application for the release of the vehicle before the Transport Authority or any other authorised officer. Intention of Legislature is evident from the language used in sub- section 2 of Section 207 of the M.V Act which says - ``Where a motor vehicle has been seized and detained under Sub-Section (1) the owner or person incharge of the Motor Vehicle may apply to the transport authority............ (22). Thus owner of the vehicle or person incharge of the vehicle has two options for the release of the- (1) He may move an application under Section 457 Cr.P.C. before the Magistrate, or (2) He may request the Transport authority or other authorised person under Section 207(2) M.V Act. (23). In view of what 1 have discussed above 1 am unable to persuade myself to subscribe the views expressed in Shrangdhar Sharma vs. State of Bihar (supra), State of Rajasthan Vs. Mohd. Nisar (supra) and Sucharan vs. State of Raj. (supra). Powers of Magistrate under Section 457 Cr.P.C. do not stand excluded in view of specific provisions in Section 207 of the M.V. Act. These provisions do not oust the jurisdiction of criminal court. Ratio propounded by their lordships of the Supreme Court in Transport Commissioner vs. Sardar Ali (supra) escaped attention of the learned Judges, which clearly laid down that property seized under Section 207 of the M.V Act can be delivered by the Court to any person claiming to be entitled to possession thereof or otherwise. (24). Now I come to the circular issued by this Court vide No.41 P.I. dated July 28, 1975 addressed to all subordinate Courts on the subject of release of Motor Vehicles seized by the transport officers for non payment of tax, It was stated in the said circular that - ``...........It appeared that it cannot be said in such cases that the vehicle has been seized with respect of any offence, and a Judicial Magistrate will have no jurisdiction to order its release in exercise of the power under the Code of Criminal Procedure. As already noticed, non-payment of tax is an offence under Section 11 of the Motor Vehicles Act. As already noticed, non-payment of tax is an offence under Section 11 of the Motor Vehicles Act. Thus the language incorporated in the circular that the seizure of motor vehicle in the event of non-payment of tax, does not amount to seizure with respect of any offence has been used ignoring the provisions of Section 11 of the M.V. Taxation Act. Under Section 15 of the said Act, a Magistrate is entitled to take cognizance of the offence and he has jurisdiction to order the release of the vehicle under Sec. 457 Cr.P.C. In my humble view a circular issued on the administrative side cannot curtail the judicial powers of the Magistrates. They may follow the guide lines issued through circulars while interpreting the legal provisions. (25). The decisions in Shrangdhar Sharma vs. State of Bihar (supra), State of Rajasthan vs. Mohd. Nisar (supra) and Sucharan vs. State of Rajasthan (supra) were per incuriam being rendered without noticing the binding decision of the Supreme Court in Transport Commissioner vs. Sardar Ali (supra), wherein their Lordships in para 4 propounded thus - ``......We have already noticed how section 4 (2) of the Code of Criminal Procedure stipulates that offences under laws other than the Penal Code also are to be investigated inquired into, tried and otherwise dealt with in accordance with the provisions of Chapter XXXIV of the Code relating to "Disposal of Property" are also therefore attracted in dealing with offences under the Motor Vehicles Act." (26). In the result, the petition succeeds and is hereby allowed, the impugned order stands set aside and the case is remitted back to the learned Special Mobile, Additional Chief Judicial Magistrate, Jaipur to decide the ,application under Section 457 Cr.P.C. afresh. The parties are directed to appear before the learned Magistrate on March 25, 1998. Learned Magistrate is expected to decide the application expeditiously.