Gujarat High Court
Ramjibhai Dayarambhai Joshi vs State Of Gujarat And Anr. on 1 July, 1996
Equivalent citations: 1(1998)ACC81, (1997)1GLR289
Author: C.K. Thakker
Bench: C.K. Thakker, S.D. Pandit
JUDGMENT C.K. Thakker, J.
Admitted.
Mr. Y.F. Mehta learned A.G.P. waives service of notice of admission. In facts and circumstances of the case, the matter is taken up for hearing today.
1. This appeal is filed against an order of the learned Single Judge dated March 26, 1996. By that order the learned Single Judge dismissed the petition filed by the appellant-petitioner to release the vehicle - a jeep car bearing No. GJ-8T-8049 detained by P.S.I., Tharad in exercise of powers under Section 207 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act').
2. It is the case of the appellant that he owned a jeep car bearing above number. It was detained by P.S.I., Tharad on November 5, 1995 on allegation that though the vehicle in question was a delivery van (goods vehicle) and, hence, could not have carried passengers, certain passengers were carried in it. According to the appellant, the action of detention of the vehicle was contrary to law as neither the appellant nor his driver committed any illegality or irregularity. The appellant, therefore, approached the Court of the learned J.M.F.C., Tharad by filing Cri. Misc. Application No. 23 of 1995 for release of the vehicle. The learned J.M.F.C., Tharad by an order dated November 18, 1995 rejected the application on the ground that no case was registered in connection with the vehicle in question and hence he had no jurisdiction to exercise the powers under the Code of Criminal Procedure, 1973 and, hence, said application was not maintainable.
3. Being aggrieved by the said order, the appellant approached the Sessions Court, by filing Cri. Revn. Application which also came to be rejected by the learned Sessions Judge, by an order dated November 27, 1995. In the circumstances, the appellant approached this Court by filing Special Criminal Application No. 164 of 1996 and a prayer was made to direct the respondent authorities to release the vehicle as the order to detain the vehicle was arbitrary, illegal and unconstitutional. The learned Single Judge rejected the said petition against which the appellant has filed the present appeal,
4. A number of contentions were raised by Mr. Jhaveri, learned Advocate for the appellant but it is not necessary for us to deal with all the contentions in view of the fact that disputed questions of fact are involved. Looking to the petition and affidavit-in-reply as well as rejoinder and in the light of the relevant record, it appears that the vehicle was detained on allegations that a goods vehicle used to carry goods was used for carrying passengers and thus, there was violation of law. In our opinion, such an action on the part of the authorities Cannot be said to be unlawful or otherwise illegal.
5. In this connection, it is necessary to note that the case of the respondent authorities is that the vehicle is owned by the appellant and is registered as delivery van. On November 5, 1995, when P.S.I., Tharad checked the vehicle, the vehicle was carrying 11 passengers by collecting Rs. 5/- from each of them. Since it was not a passenger vehicle and could not have carried passengers, it was detained under Section 207 of the Act. It was also asserted in the affidavit-in-reply that 23 cases were pending in the department in respect of the vehicle in, question. The appellant appeared before the second respondent on November 15, 1995 and had agreed to got the cases compounded including the last case of November 5, 1995. Accordingly, the cases were compounded and the appellant was asked to pay the amount of fine. As he did not pay the amount, the vehicle was not released. The action of the authorities, therefore, cannot be said to be contrary to law or unlawful.
5. It was contended by Mr. Zaveri for the appellant that the authority had no power or jurisdiction to detain the vehicle. In our opinion, however, in the light of express provision in Section 207 of the Act, such a contention cannot be upheld and the learned Judge was right in rejecting the contention of the petitioner and in holding that the vehicle could have been detained.
6. Mr. Zaveri, no doubt, stated that it is not true that the appellant got compounded the cases which were registered against him as also against his driver. He stated that the appellant had gone to the office of the R.T.O. He, however, did not get the cases compounded and the assertion in affidavit-in-reply is not correct. In the counter-affidavit, it is specifically stated that the appellant had approached the authority and all 23 cases were compounded for which an amount of Rs. 46,610/- was fined and since the said amount was not paid, the authorities did not exercise the power under Sub-section (2) of Section 207 of the Act for releasing the vehicle. A statement was made by Mr. Mehta, the learned A.G.P. for the respondent that if the appellant is ready and willing to pay up the said amount, the authorities will release the vehicle. Obviously, Mr. Zaveri did not agree to such suggestion in view of the fact that according to Mr. Zaveri, the appellant had never got compounded the cases.
7. It was, however, submitted that after the Motor Vehicles Act, 1988 was amended by the Amendment Act of 1994, an offence committed in contravention of Sub-section (1) of Section 66 of the Act, no more remained compoundable. For this submission, the attention of the Court was invited by Mr. Jhaveri to the following sections:
66. Necessity for permits-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods or for in connection with a trade or business carried on by him.
192A. Using vehicle without permit-(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Sub-section (1) of Section 66 in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than 3 months, or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both.
200. Composition of certain offences-(1) Any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, Section 183 to Section 189, Sub-section (2) of Section 190, Section 191, Section 192, Section 194, Section 196 or Section 198 may either before or after the institution of the prosecution, be compounded by such officers or such authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.
(2) Where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against, him in respect of such offence.
Now looking to Section 192A, it is abundantly clear that a new provision has been made by Parliament dealing with case of use of vehicle without permit or in contravention of the provisions of Sub-section (1) of Section 66 or in contravention of conditions of permit. The offence is considered and treated as more serious than it was in the original statute and even minimum punishment is prescribed. Mr. Jhaveri stated at the Bar that Section 192A was brought in force with effect from November 11, 1994. This is not disputed by Mr. Mehta, learned A.G.P. Reading Section 200, there is no manner of doubt that certain offences are made compoundable but Section 192A is not included in that section. In other words, the offences covered by Section 192A cannot be compounded by pressing in service the provisions of Section 200 of the Act. Hence, prima facie, the contention of Mr. Zaveri is well founded that after November 14, 1994, no offence under Section 192A could have been compounded. It is the case of the appellant that on November 13, 1995, the appellant had attended the office of R.T.O. and had agreed to get offences compounded. The contention of Mr. Jhaveri requires to be upheld that only those offences could have been compounded which were otherwise compoundable. Other of fences which were non-compoundable with effect from November 14, 1994 could not have been compounded. It appears that the respondents were also aware of this fact. In para 1 of the affidavit-in-reply filed in the present appeal, it is stated by the defendant as under:
That I have already filed my affidavit in the Spl. Cri. App. No. 164 of 1994 and I stick to statement made therein. At the outset, I must state that no application under Section 207(2) is made before me nor any such application is pending before me for disposal. I say that if any such application is made, same shall be disposed off expeditiously, looking to the priority of the matters on the hand (for vehicle No. GJ-8-T-8094). I say that composition of the offence under Section 192A will not be possible due to the fact that the same is not provided for in Section 200 and hence any such composition shall have to be ignored and cases shall have to be accordingly dealt with as if there is no composition of the offences. (After.... Nov. 1994)
8. So far as other offences are concerned, Mr. Zaveri submitted that appellant had not got those offences compounded and that the endorsement made by the authorities cannot be relied upon. In our opinion, when an entry in made to that effect in the Register, which has been seen by the learned Single Judge as well as by us and was also shown to the learned Counsel for the appellant, and when a statement is made in affidavit-in-reply by R.T.O. that the appellant had got compounded the offences, and the learned Single Judge has relied upon that fact, there is no reason to take a different view. It, therefore, cannot be said that an action of not releasing the vehicle was unlawful nor it be said that the learned Single judge has committed an error of law in not granting the relief.
9. We may, however, deal with a preliminary objection raised by the learned A.G.P. that since the main petition was a Special Criminal Application i.e., in exercise of administration of criminal justice, Letters Patent Appeal is not maintainable. Our attention in this connection was invited to Clause 15 of the Letters Patent of Bombay applicable to this Court. Looking to the decision of the Supreme Court in Transport Commissioner, Andhra Pradesh v. Sardar Ali , if no criminal Court in exercise of criminal jurisdiction/the remedy which is available to an aggrieved party is to invoke provisions of Article 226 of the Constitution of India. As stated hereinabove, an application filed by the appellant before the J.M.F.C., Tharad came to be rejected on the ground that no criminal complaint was registered against the appellant. Revision Application filed by the appellant against the said order also met with the same fate. In these circumstances, the appellant invoked Article 226 of the Constitution of India. It, therefore, cannot be said that it was in exercise of criminal jurisdiction that the appellant has approached this Court. If that is not the situation, a Letters Patent Appeal lies. We, therefore, do not uphold the contention that Letters Patent Appeal is not maintainable and we hold that Letters Patent Appeal is maintainable at law.
10. On merits, for the reasons aforesaid, the appeal requires to be party allowed. As observed earlier and as stated in para 1 of the affidavit-in-reply to the Letters Patent Appeal, the authorities are directed to exclude those cases in which composition of offence was not permissible and deduct the amount of fine imposed on the appellant to that extent. The appellant will pay the amount in respect of only those offences which could have been compounded. It is, however, clarified that said payment will be without prejudice to the rights and contentions of the parties in appropriate proceedings. Likewise, the respondents are at liberty to take appropriate proceedings against the appellant in accordance with law in respect of those offences, which are non-compoundable.
11. Mr. Zaveri stated that the appellant is poor and if the entire amount is ordered to be paid, the appellant would not be in a position to pay the amount at a time. In peculiar facts and circumstances of this case, we direct that deducting the amount in respect of which composition is not permissible, the appellant will pay the amount of fine in three instalments without prejudice to his rights and contentions. First payment of 30 per cent will be made within one month from today. As soon as such payment is made, the authority will release the vehicle in question immediately. The remaining payment will be made in two instalments (35% + 35%) at the interval of three months at both the stages. The first instalment to be paid by the appellant within four months from today and the second instalment to be paid within three months from payment of first instalment. In the meanwhile, the appellant will not transfer the vehicle in question. The appeal is partly allowed, however, with no Older as to costs.