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2023 DIGILAW 923 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2023-07-24

SUJIT NARAYAN PRASAD

body2023
ORDER : The instant Criminal Miscellaneous Petition has been filed under Section 482 Cr.P.C. against the order dated 21.11.2022, passed in Criminal Revision No.73/2022 arising out of Kamdara P.S. Case No.02/2022 dated 16.01.2022 registered for the offence under Sections 279, 304(A), 337, 338 of the Indian Penal Code whereby and whereunder the order dated 23.08.2022 passed in Misc. Criminal Application No.259/2022 rejecting the petition filed by the petitioner for the release of Maxi Cab vehicle has been upheld. 2. The facts leading to this case reads hereunder as :- 2(i) The prosecution case is based on the fardbayan of Rajesh Nag that on 16.01.2022 at about 16.00 hrs he gave information voluntarily that his elder brother Mahesh Nag went for some work on his motorcycle no. JH01DQ-4284. At around 1.30 p.m. the villagers called him and told him that his brother has been hit by Tata Magic Vehicle having registration No. JH01CW-6648 which was being driven rashly and negligently. On this information, the informant reached to the place of occurrence and with the help of the villagers, his injured brother was taken to hospital. He was referred to RIMS, Ranchi and while moving to Ranchi, his brother has died. 2(ii) On the basis of said fardbeyan, Kamdara P.S. case no. 02/2022 dated 16.01.2022 for the offence alleged under section 279/304(A)/337/338 of 1.P.C. was registered against the accused persons. 2(iii) The petitioner is the owner of the vehicle in question which is having registration no. JH01CW-6648. The vehicle having registration no. JH01CW-6648 was seized by the police in connection with the present case. 2(iv) The petitioner filed an application bearing Misc. Criminal Application No. 259/2022 before the learned Judicial Magistrate, 1st Class, Gumla for release of the Vehicle having registration No.JH01CW-6648 but the same was dismissed vide order dated 23.08.2022. 2(v) Thereafter, the petitioner challenged the order dated 23.08.2022 before the learned court of Sessions Judge, Gumla in Criminal Revision No. 73/2022 which was also dismissed vide order dated 21.11.2022, against which the present Criminal Miscellaneous Petition has been filed. 3. 2(v) Thereafter, the petitioner challenged the order dated 23.08.2022 before the learned court of Sessions Judge, Gumla in Criminal Revision No. 73/2022 which was also dismissed vide order dated 21.11.2022, against which the present Criminal Miscellaneous Petition has been filed. 3. Learned counsel appearing for the petitioner has submitted that the application was filed for release of the vehicle before the first court, i.e., in the court of Judicial Magistrate, 1st Class, Gumla, being Miscellaneous Criminal Application No. 259/2022 for release of Maxi Cab vehicle bearing registration No.JH01CW-6648 but the same was rejected on the ground that the vehicle on the date of causing accident was not insured. 3(i) Such finding was challenged by filing revision being Criminal Revision No.73/2022 on the ground that while rejecting the claim of release of vehicle in question, the learned Judicial Magistrate, 1st Class, Gumla has not taken into consideration the statutory command as provided under Rule 6 of the Jharkhand Motor Accident Claims Tribunal Rules, 2019 (hereinafter to be referred to as the Rules, 2019). The learned revisional court has upheld the order passed by the learned Judicial Magistrate dismissing the revision against which the present petition has been filed. 4. Mr. Lukesh Kumar, learned counsel appearing for the petitioner, has submitted that Rule 6 of Rules, 2019 is very specific wherein the vehicle cannot be released if involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks but the second part of Rule 6 of Rules, 2019 provides that the registered owner will furnish sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident. The learned revisional court, by taking note of the part of the aforesaid provision, has dismissed it. 4(i) It has been contended that it is not that under Rule 6(1) of Rules, 2019 there is embargo in release of the vehicle but the vehicle can be released subject to furnishing sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident, which, the petitioner is ready to furnish, but no opportunity to that effect has been given, therefore, the impugned order requires interference. 4(ii) It has been contended by referring to an order passed in similar circumstances by Coordinate Bench in Cr.M.P. No.3304 of 2022 disposed of on 26.09.2022 (Avinash Kujur v. The State of Jharkhand) wherein on the similar ground the vehicle was directed to be released subject to fulfilment of certain terms and conditions. 4(iii) Learned counsel for the petitioner, in the aforesaid premise, has submitted that in view of the provision of Rule 6 of Rules, 2019 and by taking into consideration the fact that the petitioner is ready to furnish security as required under rule 6 of the Rules, 2019, therefore, the order impugned may be quashed. 5. Mr. Shailesh Kumar Sinha, learned Additional Public Prosecutor appearing for the State, has not disputed the fact by going through the provision of Rule 6 of Rules, 2019 wherein there is no embargo in release of the vehicle if the vehicle is not insured and involved in an accident resulting in death or bodily injury. 5(i) It has been contended that if the petitioner is ready to furnish the securities to the satisfaction of the Claims Tribunal, the vehicle may be released. 6. This Court has heard the learned counsel for the parties and perused the material available on record as also the finding recorded by the learned revisional court. 7. The fact which is not in dispute in this case is that the vehicle in question which is sought to be released is involved in an accident causing death. A claim case is going on before the Claim Tribunal at Gumla. The vehicle in question was seized. A petition was filed for release of the vehicle before the Judicial Magistrate but the same was rejected vide order dated 23.08.2022 passed in Misc. Criminal Application No.259/2022 against which the revision was filed before the learned Sessions Judge, Gumla but the order passed by the learned Judicial Magistrate has been upheld against which the present petition has been filed invoking the jurisdiction conferred under Section 482 Cr.P.C. 8. Criminal Application No.259/2022 against which the revision was filed before the learned Sessions Judge, Gumla but the order passed by the learned Judicial Magistrate has been upheld against which the present petition has been filed invoking the jurisdiction conferred under Section 482 Cr.P.C. 8. The ground has been taken for quashing of the impugned order dated 21.11.2022 passed in Criminal Revision No.73 of 2022 that the learned revisional court has not applied its mind by taking into consideration the provision of Rule 6 of Rules, 2019 wherein there is no embargo in the release of the vehicle but the vehicle can be released subject to sufficient securities if furnished by the owner of the vehicle to the satisfaction of the Court. 8(i) But, it would be evident from revisional order that the said condition as stipulated under the provision of Rule 6 of Rules, 2019, has not been taken note of and merely the part of the aforesaid statutory provision has been referred in the impugned order as if there is embargo in release of the vehicle while the statute is otherwise. 9. This Court, in order to appreciate the aforesaid argument, has considered the provision as contained under Rule 6(1) of Rules, 2019 which is being referred hereunder as :- “6 Prohibition against release of motor vehicle involved in accident. - (1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.” 9(i) It is evident from the aforesaid provision that the same is required to be read out in entirety. The very first line starts with “No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, but the same can only be released if the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident, meaning thereby, if the registered owner is ready to furnish sufficient security to the satisfaction of the court to pay compensation, which is to be awarded in favour of the claimant, the vehicle can be released even in a case where the vehicle is not insured or where the document pertaining to insurance has not been produced when demanded by the investigating police officer. 10. This Court, after considering the aforesaid provision and coming back to the impugned order wherefrom it is evident that the learned revisional court although has considered the provision of Section 6 by taking note thereof but very surprisingly the half of the aforesaid provision has been taken note of, i.e., “if vehicle is not covered by the policy of insurance against third party risks in that case no court shall release a motor vehicle in an accident resulting in death or bodily injury or damage to property”. 10(i) The learned revisional court has failed to consider the provision under Rule 6 of Rules, 2019 in entirety and merely by taking note of the first part, i.e., if the vehicle is not insured and is found to be involved in the case of accident causing death or bodily injury, the vehicle is not to be released. 10(ii) But, the condition stipulated under Rule 6(1) of Rules, 2019 for release of the vehicle, i.e., the vehicle can be released if the registered owner furnishes security to the satisfaction of the court to pay compensation which is to be awarded in a claim case arising out of such accident, the learned revisional court has failed to take note thereof. 11. 11. Therefore, this Court is of the view that the order passed by the learned revisional court is without any application of mind and without taking due consideration of the statutory provision as contained under Section 6(1) of the Rules, 2019. 11(i) This Court wants to make a remark that when any statutory provision is being placed, it is the bounden duty of the concerned court to go through the same and, thereafter, pass an order about its applicability/non-applicability. 11(ii) But, here it appears to this Court that the learned revisional court has not taken into consideration the entire provision, the reason this Court failed to understand. 11(ii) In the similar circumstances, the Coordinate Bench of this Court has also passed an order on 26.09.2022 in Cr.M.P. No.3304 of 2022 by taking note of the provision of Rule 6 of Rules, 2019 coupled with the judgment rendered by Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in 2002 10 SCC 283 wherein, at paragraph 17 and 18 the Hon'ble Apex Court has held which reads hereunder as:- “17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.” 11(iii) The Coordinate Bench, in view of aforesaid, has directed to release the vehicle in favour of the registered owner on his undertaking by giving therein certain terms and conditions. 12. In consequence thereof, the order dated 21.11.2022, passed in Criminal Revision No.73/2022, arising out of Kamdara P.S. Case No.02/2022, is hereby quashed and set aside. 13. In the result, the vehicle in question, i.e., Maxi Cab vehicle bearing registration No.JH01CW-6648, shall be released in favour of the petitioner on his undertaking on the following terms and conditions :- (i) The petitioner shall furnish an indemnity bond to the satisfaction of the court below; (ii) The petitioner shall file an undertaking that he will deposit the compensation granted by any competent court or may be awarded in the claim case arising out of the same accident; (iii) One of the surety must be a resident and owner of a commercial vehicle of District of Gumla(Jharkhand); (iv) That the petitioner shall not sale, mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner; (v) He shall not change or temper with the identification of the vehicle in any manner; and (vi) He shall produce the vehicle as and when directed by the learned trial court. 14. The Trial Court is also at liberty to impose any other condition for releasing the vehicle which the learned court deems fit and proper. 15. With the aforesaid observation and direction, Cr.M.P. No. 4679 of 2022 stands allowed and disposed of.