Patna High Court
Ashok Kumar Singh vs The Union Of India & Ors on 10 January, 2011
Author: Mridula Mishra
Bench: Mridula Mishra, Dharnidhar Jha
CRIMINAL WRIT No.719 OF 1999
ASHOK KUMAR SINGH, SON OF LATE JANAKISHARAN SINGH,
RESIDENT OF VILLAGE - JETHULI, P. S. - FATWAH, DISTRICT -
PATNA
-------------------------------APPELLANT
VERSUS
1. THE UNION OF INDIA THROUGH SECRETARY, DEPARTMENT OF
SURFACE TRANSPORT, NEW DELHI
2. THE STATE OF BIHAR THROUGH SECRETARY, TRANSPORT,
PATNA
3. TRANSPORT COMMISSIONER, GOVERNMENT OF BIHAR, PATNA
4. THE DISTRICT TRANSPORT OFFICER, PATNA
5. ENFORCEMENT OFFICER, DEPARTMENT OF TRANSPORT AT
SAMASTIPUR
--------------------------RESPONDENTS
-----------
FOR THE PETITIONER : MR. ASHOK KUMAR SINGH, ADV.
FOR RESPONDENT NO. 2 TO 5: MR. HARENDRA PRASAD SINGH, GA-8
MR. BHUNESHWAR PANDEY, AC TO GA-8
PRESENT
THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ******* Mridula Mishra & The petitioner has challenged the vires of Dharnidhar Jha, JJ.
section 207, sub-section 2 of the Motor Vehicles Act, 1988, stating that in view of sections 181, 192, 192 A of the Motor Vehicles Act as well as the provisions under section 457 of the Cr.P.C., any vehicle seized, has to be released by the Magistrate under section 457 of the Cr.P.C. Sub-section 2 of section 207 of the Motor Vehicles Act, which authorizes, Authority under the Motor Vehicles Act for exercising jurisdiction for release of seized vehicle, being completely in contravention of provisions under 2 section 457 of the Cr.P.C., is ultra vires to this provision.
Petitioner is the registered owner of Truck, bearing No. BRQ-1482. This vehicle was seized by the Enforcement Officer, Samastipur of Transport Department, Government of Bihar on 18.11.1995 and a prosecution was also filed under section 181, 192, 192A of Motor Vehicles Act and section 22A of the Motor Vehicles Taxation Act, 1988. The petitioner, after seizure of the vehicle, filed an application before the CJM, Patna to get the vehicle released, which was refused by the Judicial Magistrate, 1st Class, Patna. Petitioner filed a Criminal Revision No. 558 of 1996 before Sessions Judge, Patna. This was also dismissed by the Additional Sessions Judge-X, Patna, by his Order, dated 24.05.1999, rejecting his prayer for release of vehicle, stating that the Order of release can not be passed in view of sub-section 2 of section 207 of Motor Vehicles Act, 1988.
The petitioner has challenged the vires of sub- section 2 of section 207 on the ground that the vehicle of the petitioner was seized on this allegation that it was plying without permit as required under section 66, sub- section 1 of the Motor Vehicles Act. Section 207 of the Motor Vehicles Act relates to power of detaining such vehicles, which is being used in violation of the provisions 3 under sections 3, 4, 39 and 66 of the Motor Vehicles Act. Section 3 provides that no person shall drive a motor vehicle, unless he holds effective driving license, issued by the competent authority, authorizing him to drive the vehicle. Section 4 relates to age limit in connection with driving of motor vehicles. No person under the age of 18 years can drive a motor vehicle in any public place. Section 39 relates to necessity for registration of vehicle. No motor vehicle can be driven or no owner of the vehicle will get a permit for driving the vehicle, unless it is registered and a certification of registration of the vehicle has been issued. Section 66 relates to necessity of permits in case of commercial vehicles, granted by a competent authority under the Act, authorizing the owner to use the vehicle in a prescribe manner. For violation of section 3, 4, 39 and 66, there are penal provisions also under the Motor Vehicles Act. Section 181 is the penal provision for violation of sections 3 and 4 of the Motor Vehicles Act. It is punishable with imprisonment, which may extend to three months or with fine up to Rs. 500/-. For violation of section 39, penal provision is section 192 of the Act. For contravention of section 39, the first offender will be punished with a fine, which may extend to Rs. 5,000/-. For subsequent offenders, the punishment 4 is imprisonment, which may extend up to one year with fine, which may extend to Rs. 10,000, but not less than Rs. 5,000/-. For violation of section 66 of the Act, the punishment lies under section 192A of the Motor Vehicles Act. In case any carriage is plying without permit relating to the route or the area, the owner will be punished with fine, which may extend to Rs. 5,000/-, if it is the first offence, but in case of subsequent offence, the punishment is imprisonment to be extended to one year but not less than 3 months and a fine, which may extend up to Rs. 10,000/-, but not less than Rs. 5,000/- or both.
The petitioner's case is that, since for contravention of provisions under section 3, 4, 39 and 66 of the Motor Vehicles Act, there is penal provision and for such provision the jurisdiction of Criminal Court are provided under Chapter 4 of the Cr.P.C. For offences under the Motor Vehicles Act, the criminal proceeding is tried by the Magistrate, having power to punish or award acquittal or may allow the offence to be compounded under section 208 of the Motor Vehicles Act in a summary proceeding. In such cases, refusal by the Magistrate to release the seized vehicle, taking plea that they do not have jurisdiction to release the vehicle and the jurisdiction lies with an authority under the Motor Vehicles 5 Act in terms of sub-section 2 of section 207 of the Motor Vehicles Act, is in contravention of the provisions under the Cr.P.C. The provisions under the criminal procedure being the substantive statutory authority. Section 207, sub-section 2 curtails the authority under section 457 of the Cr.P.C. Sub-section 2 of section 207 of the Motor Vehicles Act, 1988 speaks that vehicles seized and detained in violation of sections 3, 4, 39 or section 66, shall be released by the Transport Authorities or any Officer / authorities authorized in this behalf by the State Government, only when an application is filed before that authority together with relevant documents for release of the vehicle. The authority or Officer on verification of the documents may order to release the vehicle with certain conditions. Since sub-section 2 snatches the judicial power of the Criminal Courts, which is authorized and empowered to try the offences under the Criminal Procedure Code and impose punishment for contravention of same provisions under section 181, 192, 192A of the Motor Vehicles Act, 1988, creating a jurisdiction in the Transport Authorities under section 207 (2) of the Act in contravention of section 457 of the Cr.P.C. is ultra vires to the provision under section 457 of the Cr.P.C.
On perusal of the order-sheet of Writ 6 Application, it transpires that the vehicle, seized, was released by the Orders of this Court, during the pendency of this application. Now, the discussion is only academic, as to whether there is any conflict in between the two provisions relating to release of the vehicle, i.e., section 457 of the Cr.P.C. and section 207, sub-section 2 of the Motor Vehicles Act.
A counter affidavit has been filed on behalf of the State. In this counter affidavit, it has been stated that section 207 of the Motor Vehicles Act, 1988 relates to the power of detaining vehicles, if being used without certification of registration permit or in violation of sections 3 and 4, relating to license and the age of the person, who is driving the vehicle. The petitioner's vehicle was seized for violating the provisions under section 66 of the Act, as it was found plying without requisite permit. The authority, vested with power under the Motor Vehicles Act, is authorized to release such vehicles, when application is filed for release with necessary documents.
On consideration of the provisions under section 207, sub-section 2 of the Motor Vehicles Act and section 457 of the Cr.P.C., it is apparent that these two provisions are completely different provisions, applicable in two different fields. Section 457 Cr.P.C. has application 7 when vehicle is seized in connection with commission of some offence, but so far the release of vehicle under section 207, sub-section 2 of the Motor Vehicles Act is concerned, it relates to certain provisions under the Motor Vehicles Act. Contravention of which will effect the safety, security, loss of revenue and proper plying of the vehicles. Any commercial vehicle or transport vehicle, if seized for contravention of section 66 of the Motor Vehicles Act, if being used without a permit, in such cases, the vehicle can not be permitted to be used in any public place, unless permit is granted in favour of the owner, in connection with that vehicle. The Criminal Court can not issue permit in favour of the owner of the vehicle. As such, it is essential that before release of the vehicle, a permit is issued in favour of the owner. Simple release order in favour of the owner will be of no benefit for him, as he can not use the vehicle for commercial purposes. This is the reason that in case where vehicle is seized for violation of section 66 of the Motor Vehicles Act, its release order can be passed only by the authorities under the Motor Vehicles Act, who is also authorized to issue permit in favour of the owner of the vehicle. Once, the vehicle is released on submission of proper documents, for violation of which it has been seized, than only the 8 vehicle can be plied in public places.
So far the jurisdiction conferred upon the Magistrate under section 457 of the Cr.P.C. is concerned, it can not be exercised in respect of vehicles, which has been seized under section 207 of the Motor Vehicles Act, as a special provision has been made for this under the special Act. Any provision made under the Special Act will have to be exercised by same authority, which has specially been authorized following the same procedure, as provided under the Act. There is no reason for holding that provision under sub-section 2 of section 207, in any manner curtails the power of Magistrate under section 457 of the Cr.P.C., as these two provisions are completely different and area of operation under these two provisions are completely different.
In the aforesaid facts and circumstances, we do not find any merit in this application. Accordingly, it is dismissed.
(Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court, Patna Dated: 10.01.2011 Shashi Kant Mishra / NAFR