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2015 DIGILAW 239 (HP)

Ashwani Kumar v. Rama Devi

2015-03-25

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J (oral) Bus bearing No. HP02-2719 stood registered, as reflected by RC comprised in Annexure R-1/C, in the name of M/S Jublee Highways Tpt. Co. Ltd, near Bus Stand, Kangra. For infraction of the provisions of Section 207 of Motor Vehicles Act, constituted by the driver not, at the relevant and apposite time, when the authorities concerned elicited from him, possessing the relevant documents, the bus hence was taken into possession by the officials of Police Post, Yol cantt. On the vehicle having come to be taken into possession by the officials of the Police Post, Yol Cantt, an application for its release was moved by the petitioners herein. The anvil on which they claimed release of the seized property i.e. bus aforesaid, was an agreement executed inter-se Kewal Krishan Aggarwal, the Managing Director of M/S Jubilee Highways Tpt. Pvt. Ltd., and Respondent No.3, Amit Thakur S/o Shri Avtar Singh. A perusal thereof depicts that the possession of the vehicle aforesaid was conveyed by the aforesaid Kewal Krishan Aggarwal, in favour of one of the petitioners, namely Amit Thakur, who then claimed its release through an application moved before the learned Judicial Magistrate 1st Class-II at Dharamshala. Also, respondent No.1 Smt. Rama Devi, the legatee under a will executed by Mr. Kewal Krishan Aggarwal in her favour, whereunder the property aforesaid as seized by the authorities of police Post Yol Cantt, was bequeathed in her favour, hence anchored a claim for its release in her favour through an application moved before the learned Chief Judicial Magistrate, Kangra at Dharamshala. At a time prior to an order having come to be rendered qua its disposal in favour of respondent No.1 Rama Devi by the learned Chief Judicial Magistate, the Mobile Traffic Magistrate, Kangra, in his order, existing at page 22, directed the release of the seized/confiscated vehicle in favour of its rightful owner. Besides, he bracketed the order with a direction that the vehicle be released in favour of Rama Devi widow of Kewal Krishan Aggarwal. Besides, he bracketed the order with a direction that the vehicle be released in favour of Rama Devi widow of Kewal Krishan Aggarwal. Consequently, when respondent No.1 Rama Devi herein could not stake a claim for the release of the vehicle in her favour, as ultimately ordered by the Mobile Traffic Magistrate, Kangra, even when as disclosed by an application placed on record, of hers having, prior to hers claiming release of the vehicle before the Mobile Traffic Magistrate Kangra, moved an application in the Court of the Learned Chief Judicial Magistrate Kangra at Dharamshala, rendered the order for its release by the Mobile Traffic Magistrate to be suffering from jurisdictional error. Fortifyingly, both the Courts of learned Chief Judicial Magistrate, Kangra and Judicial Magistrate 1st Class-II Dharamshala, before whom the applications were preferred both by the petitioners and Rama Devi, respondent No.1, claiming its release, had alone the jurisdiction to adjudicate upon the factum of the rival claims of the petitioners herein and respondent No.1 herein, theirs being seized of the respective applications of the petitioners herein and respondent No. 1 Rama Devi, and which applications stood instituted prior in time to the one instituted by respondent No.1 Rama Devi before the Mobile Traffic Magistrate. Reiteratingly, the Pendency of applications, preferred at the instance of both the petitioners herein and respondent No.1 herein before the criminal Courts of competent jurisdiction, precluded the Mobile Traffic Magistrate to order for its release in favour of respondent Rama Devi. Therefore, the conduct of the respondent No.1 herein i.e. Rama Devi, inasmuch, as, despite hers having knowledge qua the institution and pendency of an application before the learned Chief Judicial Magistrate, Kangra, claiming release of the vehicle aforesaid before the Mobile Traffic Magistrate by suppressing the factum of the pendency of a pre-instituted application for the release of the seized property, is highly deprecatory. Also deprecatory is the act of the Mobile Traffic Magistrate, Kangra, who, by a short and cryptic order un-preceded by an inquiry into the factum whether the claim laid for its release by the respondent Rama Devi is lawful or not, has, hence, by a thorough non-application of mind proceeded to exercise jurisdiction in a most arbitrary and capricious manner. Also deprecatory is the act of the Mobile Traffic Magistrate, Kangra, who, by a short and cryptic order un-preceded by an inquiry into the factum whether the claim laid for its release by the respondent Rama Devi is lawful or not, has, hence, by a thorough non-application of mind proceeded to exercise jurisdiction in a most arbitrary and capricious manner. Even though, the learned Sessions Judge Kangra at Dharmashala has proceeded to affirm the order rendered by the Mobile Traffic Magistrate, however, the mere affirmation of the order of the latter, by the learned Sessions Judge does not impute any legal sanctity to the orders rendered by the Mobile Traffic Magistrate which for the reasons aforesaid is infirm being cryptic. Besides given the deprecatory conduct of the respondent Rama Devi comprised in her suppressing the factum of hers having instituted an application for its release before the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala, when she claimed its release from the Mobile Traffic Magistrate, besides hence when the former Court alone had the jurisdiction, to pass an appropriate order or render an adjudication qua its disposal is also a noticeable jurisdictional infirmity, whose existence cannot at all clothe even the orders rendered by the learned Sessions Judge with any legal sanctity. Moreover, it appears on a reading of the order of the learned Sessions Judge that it was merely on the strength of material, as placed on record before him, by the Revisionist, on which he rendered a conclusion in affirmation to the order recorded by Mobile Traffic Magistrate. Obviously, in his exercising revisional jurisdiction the learned Sessions Judge, Kangra, ought to have, on the strength of material as laid before Mobile Traffic Magistrate, discerned therefrom, whether there was any material illegality or impropriety ingraining it arising from the fact of non-appreciation of material available on record. However, a bare reading of the order rendered by the Mobile Traffic Magistrate does not evidence the fact that there was material on record before him to proceed to render an order for handing over the custody of seized vehicle in favour of Rama Devi. However, a bare reading of the order rendered by the Mobile Traffic Magistrate does not evidence the fact that there was material on record before him to proceed to render an order for handing over the custody of seized vehicle in favour of Rama Devi. Therefore, the learned Sessions Judge, when was rather required to proceed to render a conclusion qua the manner of appreciation of material as laid before him and to gauge the factum of its being not an order being permeated with material illegality or impropriety, absence thereof, forbade him to accept the material on record as placed on record by the Revisionist, especially when it was omitted to be laid before the authority concerned against whose order a revision was instituted before him. Moreover, there is no material on record portraying that preceding to its release in favour of respondent No.1, Rama Devi, the Mobile Traffic Magistrate issued summons upon the petitioners herein for eliciting their participation in the proceedings. Absence of participation of the petitioners herein in the proceedings preceding the rendition of an order by the Mobile Traffic Magistrate renders it to be infected with a legal infirmity in as much as it having been rendered behind the back of the petitioners herein, besides theirs having come to be condemned unheard, obviously the aforesaid infirmity constrains this court to conclude that he has exercised jurisdiction with material illegality and impropriety. Consequently, the orders rendered by the learned Sessions Judge in affirmation thereto too are vitiated. The sequel of the above discussion is that the orders rendered by the authorities below are quashed and set aside. However given the fact that an application is pending before the learned CJM, Kangra at Dharamshala at the instance of the petitioners herein and another application at the instance of respondent No. 1 qua the release of seized property is pending in the Court of the learned Judicial magistrate, 1st Class, Kangra, for adjudication, therefore it is directed that both the applications aforesaid shall be heard by the learned Chief Judicial Magistrate Kangra, and, he shall after hearing the lawful claims of both the parties, shall pass an appropriate order within a period of two months. The respondent No.1 Rama Devi is directed to handover the bus to the officials of Police Post, Yol cantt., within two days. The respondent No.1 Rama Devi is directed to handover the bus to the officials of Police Post, Yol cantt., within two days. It is made clear that any observation made hereinabove shall have no bearing on the merits of the main applications.