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2002 DIGILAW 795 (RAJ)

Pyar Chand v. State of Rajasthan

2002-04-17

D.N.JOSHI

body2002
JUDGMENT 1. - The instant petition has been filed under section. 482 Criminal Penal Code against the order of learned Civil Judge (J.D.) & Judicial Magistrate, 1st Class, Pratapgarh dated 2.7.2001 in Checking Proceeding No. 655713 dated 25.6.2001. By the said order the application filed by the present petitioner-Pyarchand was disposed with the direction that if the petitioner obtains a receipt from the Transport Department after deposit of the tax due, the vehicle MPU-5159 be delivered to the petitioner. 2. The facts of the case are that the vehicle in question was seized by the Transport Department and an application was moved under section 457 Criminal Penal Code for release of the same, which was rejected by the learned trial Court as stated earlier. 3. On 17.7.2001, the learned counsel for the petitioner argued before the Court that the Transport Commissioner has not given any notice to the petitioner calling him upon to pay any amount of tax of any nature whatever nor any determination of the precise amount recoverable from him has ever been made in accordance with law and the vehicle had been seized, and therefore, the learned trial Court committed an error in directing the release of the vehicle on the condition of paying the amount of outstanding tax in the Transport Department to he paid by the petitioner. The petition was admitted and notices in the stay petition were also issued on that day. The stay was also granted by the Court, which runs as under : "In the meanwhile, the vehicle be delivered to the petitioner on his furnishing a bank guarantee in the sum of Rs. 50,000/- in favour of the District Transport Officer, Paragraph. The guarantee shall be to f effect that in the event of any road tax or special road tax being forward leviable from him as contemplated by the order of the Transport Commissioner dated 18.5.2001 he will pay the amount and in the event of his failure, the amount may be realised by invoking the bank guarantee." 4. The guarantee shall be to f effect that in the event of any road tax or special road tax being forward leviable from him as contemplated by the order of the Transport Commissioner dated 18.5.2001 he will pay the amount and in the event of his failure, the amount may be realised by invoking the bank guarantee." 4. It was also made clear that this order will not come in the way of the District Transport Officer cum Taxation Officer, Pratapgarh in his initiating appropriate proceedings against the petitioner for assessment/quantification of the tax/road tax as may be leviable from the petitioner in accordance with the provisions of relevant statute, attention whereto has been invited by the order of the Transport Commissioner dated 18.5.2001. 5. The petitioner in compliance of the order, submitted Bank Guarantee on 23.7.2001, the validity of which was to expire on 21.10.2001. 6. The non-petitioners appeared and filed reply. It was pointed out on 25.1.2002 that the demand notice was issued by the concerned officer on 23.7.2001 and against which S.B.C. Writ Petition No. 3256/2001 was filed in this Court on 21.8.2001 and it was ordered on 24.8.2001 in that case as under:- "Admit. Issue notice. Issue notice of the stay application. Meanwhile, no coercive process shall be taken against the petitioner provided he deposits 25% of the deposited demand and security for the balance amount to the satisfaction of the concerned D.T.O." 7. It also appears from the photo state copy of the order that the petitioner has deposited 25% of the tax due Rs. 16,050/- vide receipt No. 0008077 dated 22.9.2001 and furnished security bond for 75% of the tax due. As per demand note issued on 23.7.2001, the tax, which was alleged to be due against the petitioner was Rs. 64,194/- for the period April, 1999 to June, 2001. The District Transport Officer, Pratapgarh issued a certificate to this effect with reference to writ petition No. 3256/2001. 8. The learned counsel for the petitioner prayed that the petitioner may be allowed to encash the Bank Guarantee furnished in compliance of the order of this Court in S.B. Cri. Misc. Pet. No. 248/2001 passed on 17.7.2001. The vehicle has already been released under the compliance of the order of the Court and no useful purpose would be served by keeping the Bank Guarantee alive. 9. Misc. Pet. No. 248/2001 passed on 17.7.2001. The vehicle has already been released under the compliance of the order of the Court and no useful purpose would be served by keeping the Bank Guarantee alive. 9. The learned counsel for the Department submitted that a criminal Court has got no jurisdiction to release a vehicle under section 457 Criminal Penal Code, which has been seized under the provisions of Motor Vehicles Act for not depositing the tax due. Therefore, no interference is called for by this Court in this regard. 10. Whether a criminal Court has got jurisdiction to release the vehicle, the judgments of this Court are contradictory. 11. It has been held in the following cases that the Magistrate concerned has got no jurisdiction to release the vehicle seized under the Motor Vehicles Act:- (1) State of Rajasthan v. Mohd. Nisar, 1997 WLC p. 1660 ; (2) Rajendra v. State of Rajasthan, (S.B. Cri. Misc. Pet. No. 55/2000 decided on 23.2.2001) ; (3) Kalyan v. State of Rajasthan, (S.B. Cri. Misc. Pet. No. 34/01 decided on 6.2.01) ; (3-A) Subedar v. State of Rajasthan, (S.B. Cri. Misc. Pet. No. 63/01 decided on 6.2.01) ; (3-B) Sohan Singh v. State of Rajasthan, (S.B. Cri. Misc. Pet. No. 64/01 decided on 6.2.01) ; (3-C) Rajendra v. State of Rajasthan, (S.B. Cri. Misc. Pet. No. 65/01 decided on 6.2.01) ; 12. All these petitions (from 3 to 3-C) were disposed of by Hon'ble Mr. Justice Mohd. Yamin by a common order dated 6.2.2001. (4) Phoosa Ram v. State, AIR 2001 Raj. p. 360 decided on 18.4.01 . 13. Against this order, D.B. Cri.Special Appeal No. 536/2001 was filed, but it was dismissed on 23.11.2001 as withdrawn. 14. To the contrary, it has been held in the following case that the Magistrate has got jurisdiction to release the vehicle seized under the provisions of the Motor Vehicles Act, if tax is due against the vehicle:- Noor Khan v. State of Rajasthan, 1998(2) WLC (Raj.) p. 676 . 15. It was held in the above case that the judgment given in State of Rajasthan v. Mohd. Nisar, S.B. Cri.Misc.Pet. No. 675/95, decided on 19.7.97) was per incuriam. The learned Single Judge, who decided Noor Khan's case elaborating the various provisions of the Motor Vehicles Act summarised the legal proposition in para No. 11 of the judgment. 15. It was held in the above case that the judgment given in State of Rajasthan v. Mohd. Nisar, S.B. Cri.Misc.Pet. No. 675/95, decided on 19.7.97) was per incuriam. The learned Single Judge, who decided Noor Khan's case elaborating the various provisions of the Motor Vehicles Act summarised the legal proposition in para No. 11 of the judgment. Before the learned Single Judge, reliance was placed on the following judgments : Mahendra v. State of Rajasthan, 1989 Cr.L.R. (Raj.) p. 552 ; Sardar Singh v. State of Rajasthan, 1996 RCC p. 265 ; Jamna Devi v. State of Rajasthan, 1983 RCC p. 401 . 16. However, it is relevant to mention here that SLP (Cri.) No. 2416/98 has been preferred against the judgment of Noor Khan and the Hon'ble Supreme Court vide order dated 21.9.1998 has granted stay. As per the information available on the web.site of the Hon'ble Supreme Court, the SLP (Crl.) has been converted into Criminal Appeal No. 1996/98 and the appeal in SLP is pending before the Hon'ble Supreme Court. The point for consideration is what order should be passed in these facts and circumstances. 17. Without going into the merits and de-merits of the case, in the opinion of the Court, the Bank Guarantee furnished in the petition in compliance of the order of this Court dated 17.7.2001 does not require further extension and it may be allowed to be encashed by the petitioner. The petitioner has furnished cash security and security bond with the Department for the whole amount of tax due and the vehicle has been released by the Department. The present controversy does not require any consideration and it is to be decided in S.B.C. Writ Pet. No. 3256/2001. 18. Therefore, the petition is hereby allowed to encash the Bank Guarantee furnished in compliance of the order of this Court dated 17.7.2001. As the main petition has been disposed, the stay petition also stands disposed of. 19. The file S.B.C. Writ Petition No. 3256/2001 may be detached from this file.Petition allowed. *******