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2014 DIGILAW 177 (CAL)

Avijit Saha v. State of West Bengal

2014-03-04

DIPANKAR DATTA

body2014
Judgment : 1. The petitioners are the joint owners of a bus, which has been granted permit to provide stage carriage service on the route Dakshineswar to Park Circus (hereafter the route). The bus was involved in an accident on December 7, 2013 resulting in the death of a pedestrian. Consequently, Baranagar P.S. Case No. 705/13 dated December 7, 2013 under Sections 279/338/304A, Indian Penal Code has been registered. An investigation is in progress. In connection with such investigation, the bus has been seized vide seizure list dated December 8, 2013. The investigating officer issued notices dated December 10, 2013 and December 14, 2013, under Section 91, Code of Criminal Procedure (hereafter the Cr.P.C.) and called upon the petitioners to produce the driver of the bus along with other documents mentioned therein. However, since the driver is absconding and evading arrest, he was not produced before the investigating officer. 2. By a representation dated December 8, 2013 addressed to the Officer-in- Charge, Baranagar Police Station, the petitioners while enclosing photocopies of papers/documents relating to the bus also enclosed copy of an order dated May 21, 1999 passed by an Hon’ble Division Bench of this Court in MAT 1744/1999 (Bengal Bus Syndicate & ors. vs. State of West Bengal & ors.) and prayed for immediate release of the bus as per Section 136 of the Motor Vehicles Act, 1988 (hereafter the Act). Such representation was followed by further representations addressed to the investigating officer dated December 12, 2013 and December 18, 2013 with similar prayers for release of the bus. Since the bus has not been released, the petitioners have presented this writ petition seeking, inter alia, the following relief: “a) A writ in the nature of Mandamus commanding the respondents, each one of them, their men, servants, agents and/or assigns to act and proceed in accordance with law particularly in accordance Section 136 of the Motor Vehicles Act, 1988 and the order dated 21st May, 1999 passed by the Hon’ble Division Bench of this Hon’ble Court in M.A.T. No. 1744 of 1999 (Bengal Bus Syndicate & ors. Vs. State of West Bengal & ors.); b) A writ of and/or in the nature of Mandamus commanding the respondents, each one of them, their servants, subordinates and/or assigns to release the bus of the petitioners bearing registration number WB-04D-4443 within a specified time as may be directed by this Hon’ble Court;” 3. Vs. State of West Bengal & ors.); b) A writ of and/or in the nature of Mandamus commanding the respondents, each one of them, their servants, subordinates and/or assigns to release the bus of the petitioners bearing registration number WB-04D-4443 within a specified time as may be directed by this Hon’ble Court;” 3. Mr. Dutta, learned advocate representing the petitioners referred to the decision in Bengal Bus Syndicate (supra) and contended that the investigating officer acted illegally and in a high-handed manner in not releasing the bus in their favour. According to him, the Act being a special statute would prevail over the general law i.e. the Cr.P.C. and since the order dated May 21, 1999 is binding on this Court, release of the bus at the earliest ought to be directed. In course of hearing, it has further been brought to my notice by him that Section 136 was amended in 1994 and the words “without unnecessary delay” have been substituted by the words “within twenty-four hours”, meaning thereby that return of a motor vehicle involved in an accident after examination cannot brook any delay and that it has to be returned immediately to ensure that a stage carriage operator does not stand to lose by reason of non-plying of his vehicle. 4. Per contra, Mr. Banerjee, learned advocate representing the respondents contended that the decision in Bengal Bus Syndicate (supra) has no application on facts and in the circumstances. Referring to the records, he contended that by his letter dated December 9, 2013, the investigating officer requested the Regional Transport Authority, Barrackpur Commissionerate (hereafter the RTA) to send a mechanical expert on December 10, 2013 for necessary inspection of the bus. According to him, the petitioners’ bus has not been removed for inspection and/or examination from the custody of the investigating officer till date and in the absence of removal of the bus, the proviso to Section 136 is not attracted; hence, question of returning the bus within twenty four hours of observance of all formalities does not arise. Next, it has been argued by him that the decision in Bengal Bus Syndicate (supra) did not discuss the facts of the case in details, but it would not be inappropriate to assume that the motor vehicle involved in the accident in that case was removed for inspection and/or examination. Next, it has been argued by him that the decision in Bengal Bus Syndicate (supra) did not discuss the facts of the case in details, but it would not be inappropriate to assume that the motor vehicle involved in the accident in that case was removed for inspection and/or examination. In view of the dissimilarity in factual aspects of the two cases, he urged the Court not to rely on the decision in Bengal Bus Syndicate (supra). Reliance has been placed by him on the decision in Ram Parkash Sharma vs. State of Haryana: AIR 1978 SC 1282 for the proposition that it is the criminal court that has the power to release property seized by the police from a person and reported to the Court, but not yet produced before such Court. Based thereon, it has finally been submitted that the petitioners may be directed to obtain release of the bus by approaching the concerned judicial magistrate. 5. The parties have been heard at length. 6. Since the decision in Bengal Bus Syndicate (supra) is the sheet anchor of the petitioners’ claim, it is reproduced below: “Keeping in view the fact that a notice has been served upon the learned counsel for the State and pursuant whereto Mr. De, learned counsel, has appeared on behalf of the State, this appeal is treated on day’s list and is being disposed of with the following order. This appeal is directed against an order dated 20.5.99 passed by a learned Single Judge of this court whereby and whereunder the writ application filed by the writ petitioners was dismissed on the ground that the prayer of the writ petitioner to release the vehicle in question cannot be entertained as the vehicle in question is involved in a criminal case. The petitioner was directed to approach the criminal court for release of the vehicle. Mr. Roy Chowdhury, learned counsel, appearing on behalf of the appellant has raised a short question in support of this appeal. The learned counsel has drawn our attention to Section 136 of the Motor Vehicles Act, 1988 and submitted on the basis thereof that a statutory duty has been cast upon a person authorised by the State Government to return the vehicle after completion of the formalities to the wner, driver or the person in charge of the vehicle within twenty four hours. Section 136 reads thus: ‘136. Section 136 reads thus: ‘136. Inspection of vehicle involved in accident.—When any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by the State Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination: Provided that the place to which the vehicle is so removed shall be intimated to the owner of the vehicle and the vehicle shall be returned after completion of the formalities to the owner, driver or the person in charge of the vehicle within twenty-four hours.’ Mr. De, learned counsel appearing for the State submits that the matter has been referred to the Additional Chief Metropolitan Magistrate and as such the Police authority has no jurisdiction to release the vehicle in question. Section 136 of the Act is a special statute. The said statute deals with the vehicle which is involved in any accident. The vehicle is required to be inspected. Statutory mandate has been issued that the person entitled to inspect the same shall return the same after completion of all formalities to the owner, driver or the person in charge of the vehicle within 24 hours. The object of the statute is absolutely clear. In this view of the matter, we direct the concerned respondents (respondents nos. 5 and 6) to release the vehicle in question within twenty four hours from the date of communication of this order upon completion of all formalities, if not already completed. For the reason aforementioned, both the appeal and the application are disposed of with the aforementioned observation. Let a plain copy of this order counter-signed by the Assistant Registrar (Court) be given to the learned counsel for the appellant on usual undertaking.” 7. I shall now examine the contentious issue of applicability of the decision in Bengal Bus Syndicate (supra) to the point in issue here. A close reading of Section 136 would reveal the procedure required to be followed in respect of a motor vehicle involved in an accident, which is required to be inspected. Such inspection could be made by any person authorized by the State Government, who shall have the power to enter any premises at any reasonable time and even to remove the vehicle for examination. Such inspection could be made by any person authorized by the State Government, who shall have the power to enter any premises at any reasonable time and even to remove the vehicle for examination. The proviso would be attracted only when the motor vehicle is removed for examination. In case of such removal, the owner of the motor vehicle shall be intimated and after completion of the formalities, the motor vehicle shall be returned within twenty four hours to the owner, driver or the person-in-charge of the same. 8. It appears from the photocopies of the records produced by Mr. Banerjee that the police officer investigating Baranagar P.S. Case No.705/2013 wrote a letter on December 9, 2013 to the RTA to send a mechanical expert on the following day for necessary inspection and/or examination of the petitioners’ bus, which was involved in such case. Whether or not inspection and/or examination have been effected is not too clear from the records but there is no evidence to show that the bus has been removed from the custody of the investigating officer. Mr. Banerjee is right in his contention that since the bus has not been removed for inspection and/or examination from the custody of the investigating officer, the proviso does not get attracted and, therefore, there is no question of returning the bus within twenty four hours of observance of all formalities. He is also right in submitting that the facts of the case have not been referred to in any detail in the decision in Bengal Bus Syndicate (supra) and hence, whether the motor vehicle involved in the accident in that case was removed for inspection and/or examination cannot be ascertained. In my view, the said decision ought to be read as one that is confined to the facts before the Hon’ble Division Bench. 9. Turning attention to the facts of this case, one has to answer a relevant question first. If indeed a motor vehicle involved in an accident is seized in connection with an offence by the investigating officer and it is subsequently removed from the custody of such officer by the person authorized by the State Government to do so for inspection and/or examination, who is the person to whom the said vehicle would be returned after observance of all formalities within twenty four hours, in terms of Section 136 of the Act? Apart from the owner or the driver, the proviso to such section recognizes a third person and that is the ‘person in charge’. In my opinion, the words ‘person in charge’ in the context has to be given a wide meaning so as to include within its ambit the investigating officer who seizes the vehicle and from whose custody the same might be removed if he is in charge thereof. It is important to bear in mind that the legislature does not waste words and, thus, no word can be regarded as surplusage. So read, the petitioners cannot claim return of their bus even on the basis of the decision in Bengal Bus Syndicate (supra) for the reason that follows. It is not revealed from the said decision from whose custody the motor vehicle was removed. The operative part is also silent on the point as to whom the respondents 5 and 6 in the appeal would be required to return the motor vehicle. The decision in Bengal Bus Syndicate (supra) may not be considered as laying down a proposition of law cast in a rigid formula of universal application that whenever a motor vehicle involved in an accident is removed for inspection and/or examination, it must be returned either to the owner or the driver notwithstanding the fact that it may not have been removed from the custody of both (i.e. the owner or the driver) but from a third party (the person in charge of it). 10. I am afraid, the decision in Bengal Bus Syndicate (supra) cannot have the effect of a binding precedent having regard to the above discussions insofar as this writ petition is concerned. It is settled law that one additional or different fact may make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts [see Regional Manager and anr. vs. Pawan Kumar Dubey : (1976) 3 SCC 334 ]. Law is also well settled that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed and the observations are to be read in the context, since judgments of Courts are not to be construed as statutes (see Haryana Financial Corporation vs. Jagdamba Oil Mills: (2002) 3 SCC 496 ]. 11. 11. The petitioners, therefore, ought to seek release of the bus by taking recourse to the provisions of Section 457 of the Cr.P.C. 12. The judgment on this writ petition could have ended here. However, having regard to the importance of the question that has been canvassed by the parties, it is necessary to examine the interplay of the provisions of the Cr.P.C. and the Act regarding a motor vehicle that is involved in an accident by delving in some depth to find out whether there is any inconsistency between the two provisions pertaining to return of such a motor vehicle. 13. An attempt may be made to ascertain the probable situations where Section 136 of the Act would have application. The first and foremost thing that ought to be remembered in this regard is every accident involving a motor vehicle does not result in an offence punishable by law. While driving a motor vehicle, a driver thereof may find that the brake has failed and in order to avoid casualties he may conveniently ram the vehicle to a tree or rocks that he may find by the side of the road. Alternately, while a vehicle is being driven it may so happen that one of the tyres bursts and it turns turtle on the road without resulting in loss of life or damage to property. If there is no apparent reason to doubt the driver’s version in these two cases that either the brake of the vehicle failed or that one of the tyres burst resulting in an accident and the owner of the vehicle lodges a claim before the insurer, such insurer may consider it necessary to inspect the vehicle and examine whether the brake did fail or the tyre did burst or not. The officials in the Motor Vehicles Department may be contacted for the purpose of deputing an officer to test failure of the brake or the burst tyre. The motor vehicle may have to be removed for such inspection and/or examination. Notifying the owner of such removal being the statutory mandate, it has to be followed. Only upon observance of all formalities (including examination of the motor vehicle) would a return be warranted to the classes of persons mentioned therein i.e. the owner or the driver or the person in charge. These are two illustrative cases where Section 136 would most certainly apply. Only upon observance of all formalities (including examination of the motor vehicle) would a return be warranted to the classes of persons mentioned therein i.e. the owner or the driver or the person in charge. These are two illustrative cases where Section 136 would most certainly apply. In my humble reading of Section 136 of the Act, the same would also have very limited application in regard to release of a motor vehicle involved in an accident resulting in an offence punishable by law. It could so happen that such a motor vehicle is seized by the police officer investigating the first information report of a cognizable offence and such police officer considers it necessary for the purpose of conducting proper investigation, to have the vehicle inspected and/or examined by an expert. In such case, it would be open to him, as has been done in the present case, to approach the concerned department of the State Government to depute an expert. Such expert upon being deputed may examine the motor vehicle at the spot where it has been lying. Return of the motor vehicle, in such case, would not arise. However, in a given case, the said expert may consider it necessary to remove the vehicle for inspection and/or examination from the custody of the investigating officer. In such situation too, the proviso to Section 136 would come into play since once the vehicle is removed from the custody of the investigating officer, the owner has to be intimated and upon completion of all formalities, the vehicle has to be returned within 24 hours to the investigating officer, who would be the ‘person in charge’ of the vehicle at the material time, in terms of such proviso. 14. Section 457 Cr.P.C. lays down the procedure when a property which is seized by any police officer is reported to a magistrate but such property is not produced during an enquiry or trial. It empowers the magistrate to make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof on such condition(s) as thought fit. The decision in Ram Parkash Sharma (supra) offers useful guideline. It empowers the magistrate to make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof on such condition(s) as thought fit. The decision in Ram Parkash Sharma (supra) offers useful guideline. There is no doubt that the bus of the petitioners was seized in accordance with the provisions contained in the Cr.P.C. and is property within the meaning of Section 457, Cr.P.C. 15. The Act may be a complete code in itself regarding motor vehicles and a special law on such subject, but such Act ought not to be read as if it contains provisions regarding release of a motor vehicle, which is seized in connection with investigation of an offence under the Cr.P.C., to the owner or the driver thereof. The maxim generalia specialibus non derogant would have application if the general law and the special law deal with the same subject. That is not the case here for reasons discussed above. For return of a motor vehicle involved in an accident giving rise to the possibility of commission of offence punishable by law to the owner, it is Section 457, Cr.P.C. that shall apply and not Section 136 of the Act. 16. A judge sitting singly being bound by the decision of an Hon’ble Division Bench, the decision in Bengal Bus Syndicate (supra) would definitely have been binding on me if it were shown by the petitioners that their bus had been removed for inspection and/or examination either from their custody or the custody of their driver. Also, as has been noted above, the accident in question occurred when the bus was plying on the route and immediately thereafter the driver fled; therefore, the petitioners cannot validly claim that the bus was removed from their custody or the driver’s custody. 17. However, for reasons indicated in paragraphs 7 to 10 (supra), I find no reason to entertain the writ petition. The same stands dismissed, without costs. This order shall not preclude the petitioners to seek their remedy before the magistrate in terms of the provisions of the Cr.P.C.