Mairaj Ahmad Khan vs State Of U.P. And Anr.
2012 Latest Caselaw 4804 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?'AFR'
 
Court No. - 50
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 13470 of 2012
 

 
Petitioner :- Mairaj Ahmad Khan
 
Respondent :- State Of U.P. And Anr.
 
Petitioner Counsel :- Satyendra Pratap Singh I
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the petitioner and learned A.G.A. for the State.

By order dated 18.9.2012 ten days time was allowed to the learned A.G.A. to seek instructions or to file counter affidavit. No counter affidavit could be filed. However, considering that there is no factual controversy involved in this petition, with the consent of the learned counsel for the parties, the petition is being finally disposed off at the admission stage itself.

The petitioner aggrieved by few onerous conditions put by the Chief Judicial Magistrate, Pilibhit in his vehicle release order dated 04.08.2012 passed in Case Crime No.458 of 2012, under sections 279, 337 and 338 IPC, P.S. Kotwali, district Pilibhit, has filed this writ petition. The conditions were also affirmed by the revisional court vide order dated 16.8.2012 passed by the Sessions Judge, Pilibhit in Criminal Revision No.166 of 2012.

By the order dated 04.08.2012 the Hero Honda Splendor Pro Motorcycle with registration No. U.P.26 L-1077 was ordered to be released in favour of the petitioner, who is the registered owner thereof, on certain conditions, apart from others, that he would submit personal bond of Rs.4,00,000/- together with two sureties of the like amount and shall further deposit security of Rs. 2,00,000/- in compliance of sub rule (3) of Rule 203-B of the UP Motor Vehicle Rules, 1998 (hereinafter referred to as Rules) inasmuch as the vehicle was involved in an accident and was not validly insured for third party risks, on the date of the accident.

The contention of the learned counsel for the petitioner is that the aforesaid conditions, as imposed, for release of the Motorcycle are onerous and arbitrary and not warranted in the facts and circumstances of the case. It has been contended that sub rule (3) of Rule 203-B of the Rules was not even applicable as it applies to a case where death or permanent disablement is caused on account of the accident. It has further been submitted that no finding has been recorded by the court below that a claim has been set up before, or awarded by, any court or tribunal, accordingly, imposition of such onerous condition would not only render the release order nugatory but would also deprive the petitioner of his statutory right to seek for release of the vehicle, pending inquiry or trial.

Per contra, learned A.G.A. submitted that the conditions imposed by the court below were in accordance with sub-rule (3) of Rule 203-B of the UP Motor Vehicle Rules, 1998, as incorporated vide UP Motor Vehicles (Eleventh Amendment) Rules, 2011, therefore, the conditions are legally justified. It has also been contended that the accident involving the motor cycle had caused fracture to the victim, apart from other injuries, therefore, to secure his claim, the conditions cannot be said to be unjustified.

I have perused the orders impugned as also the record. A perusal of the order dated 04.08.2012, which has been affirmed by the revisional court, goes to show that the aforesaid conditions were imposed by the court below by placing reliance on sub rule (3) of Rule 203-B of the U.P. Motor Vehicles Rules, 1998, as inserted by U.P. Motor Vehicles (Eleventh Amendment) Rules, 2011. It would be useful to reproduce the Rule 203-B, which reads as under:-

"203-B. Prohibition against release of vehicle.-(1) No vehicle, involved in any accident, shall be released by investigating Police Officer or any Police Officer superior to him unless a release order is passed, by the court having jurisdiction.

(2) No vehicle, involved in any accident shall be released by the Judicial Magistrate, having jurisdiction, unless the compliance of sub-rules (1) to (3) of Rule 203-A is ensured from the investigating Police Officer and duly attested copies of Registration Certificate, Insurance Certificate, Route Permit, Fitness Certificate of vehicle as the case may be and driving license of the driver who was driving at the time of accident, are filed by the applicant.

(3) No court shall release a vehicle involved in accident causing death or permanent disability when such vehicle is not covered by Policy of Insurance against third party risks unless the owner/registered owner of the vehicle furnished sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.

(4) Where the vehicle is not covered by a policy of insurance against third party risks, or when the owner/registered owner of the vehicle has failed to furnish sufficient security under sub-rule (3), or the policy of insurance produced by owner is found fake/forged, the vehicle shall be sold in public auction by the Judicial Magistrate, having jurisdiction, on expiry of six months of the vehicle being seized by the investigating Police Officer and proceeds thereof, shall be deposited with the Claims Tribunal, having jurisdiction over the area in question, for the purpose of satisfying the compensation to be awarded in claim case."

A perusal of the aforesaid Rule indicates that for invocation of sub rule (3) the accident involving the vehicle must have caused death or permanent disablement. In the instant case, no finding has been recorded by the court below while imposing the onerous conditions that the accident had either caused death or permanent disablement of the victim. There is also no finding as to whether any claim has been set up before, or awarded by, any Court or Tribunal. I, therefore, do not find any basis for imposing condition to furnish security of Rs.4,00,000/- and additional security of Rs.2,00,000/- when neither the market value of the Motorcycle has been determined nor anything has been discussed about the claim or an award, as the case may be. Thus, the conditions imposed in the release order appear to be irrational and arbitrary. Accordingly, I'm of the view that the matter requires to be reconsidered by the court below.

While considering the applicability of sub rule (3) of Rule 203-B of the Rules, the Court must first assess whether the injury caused by the accident resulted in death or permanent disablement of the third party (victim). In case it comes to the conclusion that the accident involving the vehicle has resulted in permanent disablement or death of the third party, then it should proceed to examine whether any claim has been set up or not. If it is found that a claim has been set up and awarded, then the security required to be furnished under sub rule (3) of Rule 203-B of the Rules would not be less than the amount awarded. However, where a claim has neither been set up nor awarded, then, in such a situation, discretion has to be exercised by the Court. While exercising such discretion it may also notionally assess the compensation payable by taking the aid of structured formula provided under Section 163A of the Motor Vehicles Act, 1988. While finally assessing the security required to be furnished, the Court must always take into account the value of the vehicle involved in the accident. Because if the security far exceeds the value of the vehicle, no owner would ever seek for its release and ultimately, the vehicle would have to be sold on expiry of six months as per sub rule (4) of Rule 203-B. It is a matter of common knowledge that if the vehicle lies at the police station for six months then its value would drastically depreciate. Further, in a situation contemplated under sub rule (3) of Rule 203-B of the Rules while seeking for security the Court must ensure that the security furnished is worthy of enforcement, when required, and not illusory.

For the reasons aforesaid, the order dated 04.08.2012 passed by the Chief Judicial Magistrate, Pilibhit and the order dated 16.08.2012 passed by the Sessions Judge, Pilibhit are hereby quashed, the learned Magistrate concerned is directed to pass a fresh release order, in accordance with law, after taking into consideration the observations made in this order. It will be open to the learned Magistrate to give opportunity of hearing to the victim of the accident before passing the order. It is expected that the entire exercise shall be completed, preferably, within 15 days from the date of filing of certified copy of this order.

With the aforesaid directions, the writ petition stands disposed.

Order Date :- 5.10.2012

AKShukla/-