Md. Azimuddin @ Md. Azzimuddin vs State Of Jharkhand
2021 Latest Caselaw 3432 Jhar

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                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 886 of 2021
                  Md. Azimuddin @ Md. Azzimuddin, aged about 53 years, son of late
                  Sultan Ahmed, Resident of Pugmil Alfala Colony, P.O. Hazaribagh, P.S.
                  Lohsingha, District- Hazaribagh                ... Petitioner

                                         -Versus-

             1.   State of Jharkhand
             2.   State Transport Commissioners, Jharkhand, Ranchi, having office at
                  F.F.P. Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, Ranchi-4
                                                                 ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Rajendra Krishna, Advocate For the Opposite Party-State : Mr. P.A.S. Pati, G.A.-II Mr. Rohan Kashyap, A.C. to G.A.-II

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07/15.09.2021. Heard Mr. Rajendra Krishna, learned counsel for the petitioner and

Mr. P.A.S. Pati assisted by Mr. Rohan Kashyap, learned counsel for the

opposite party-State.

2. This criminal miscellaneous petition has been taken through Video

Conferencing in view of the guidelines of the High Court taking into account

the situation arising due to COVID-19 pandemic. None of the parties have

complained about any technical snag of audio-video and with their consent

this matter has been heard on merit.

3. This petition has been filed for quashing the order dated 26.02.2021

passed in Complaint Case No.6858/2020 by the learned A.C.J.M., Ranchi, by

which the indemnity bond filed by the petitioner for release of the vehicle

bearing Registration No.JH-02R-9711 has been rejected with direction to

send the copy of that order to the Secretary, Transport Department,

Government of Jharkhand, Ranchi. The further prayer is made for direction

to release the vehicle in question.

4. The Motor Vehicle Inspector, Ranchi has filed a prosecution report of

vehicle bearing Registration No.JH-02R-9711 (Bus) which was seized on

09.10.2020 and said prosecution report has been filed in which the

allegation has been levelled under Sections 207/177/179/182(A)(4) of the

Motor Vehicle Act and under Sections 5/7/8/9/14/21/22/23/24/25/28(i)/29

of the Motor Vehicle Taxation Act and request has been made that the

prosecution be started against the aforesaid provisions of Motor Vehicle Act

and Motor Vehicle Taxation Act, since the motor vehicle was plying with

dangerous/unsafe and invalid alteration in the bus body and the vehicle

which found to be used without payment of proper Jharkhand State Road

Tax.

5. On 22.10.2020, the learned A.C.J.M., Ranchi has taken cognizance of

the offence under Sections 207/177/179/192(a)/182(A)(4)/196/190(2) of

the CMV Act, 1988 and under Sections 5/7/8/9/14/21/22/23/24/25/28(i)/29

of the Jharkhand Motor Vehicle Taxation Act and, accordingly, summons

were issued against the petitioner. The petitioner filed Miscellaneous

Criminal Application No.6484/2020 arising out of Complaint Case

No.6858/2020 under Section 207 of the Motor Vehicle Act read with Section

457 Cr.P.C. for release of the said seized vehicle and on 17.11.2020, the

direction was issued to release the vehicle on following conditions:

Therefore, keeping all these facts in mind and also the principle laid down by the Hon'ble Supreme Court of India in the case of Sundar Bhai Amba Lal Desai Versus State of Gujrat 2002 Supp (3) SCR 39. The seized bus bearing Registration No. JH 02R 9711 is directed to be released in favour of its Registered Owner after filing an indemnity bond of Rs.10,00,000/- (Ten Lakh only) with one surety of like amount subject to the payment of entire outstanding tax-liability i.e. Rs.4,53,507/- (Rupees Four Lakh Fifty Three Thousand Five Hundred Seven only) imposed against him by the Taxing Officer/MVI of such amount whichever is assessed/modified by the competent authority in due course, if any to the Transport

Authority and thereafter he shall submit the amount depositing receipt along with indemnity bond, accordingly. The petitioner is further directed to file an undertaking stating therein that he will not dispose off the vehicle and further will not make any material change in it during pendency of the case and will submit a colour photograph of vehicle along with Indemnity bond, failing to pay the tax-liability, as discussed above, the petitioner may liable for further action by the concerned authorities, in accordance with law and rules.

6. Thereafter, the petitioner filed an appeal before the Transport

Commissioner, Jharkhand against imposition of tax and the Transport

Commissioner, Jharkhand vide order dated 24.12.2020 directed the

petitioner to file an appeal before the District Transport Officer, Ranchi,

contained in Annexure-17 of the supplementary affidavit filed by the

petitioner. The District Transport Officer, Ranchi vide letter dated

05.02.2021 submitted his report to the learned Civil Judge (Sr. Div.)-VI-

cum-A.C.J.M.-A.S.J.-II, Ranchi.

7. Thereafter, the petitioner approached the competent authority under

Section 18(1) of Motor Tax Act, 2001 and preferred an Appeal being Appeal

No.1/2020 before the Court of District Transport Taxation Officer, Ranchi

and vide order dated 08.01.2021, the petitioner was directed to deposit the

due amount from 01.11.2019 to January 2021 with fine amounting to

Rs.1,51,362/- and fine amount under Section 182(A)(4) of Rs.50,000/- and

Rs.10,000/- and under Section 192A of CMV Act, 1988 and Rs.2,000/-

under Section 179, total amounting to the tune of Rs.2,13,362/- through

taxation officer. The petitioner deposited the outstanding dues of tax of

Rs.2,13,362/- on 28.01.2021 and No Objection Certificate for the bus was

issued in favour of the petitioner. The matter for release of passenger bus

was kept pending on various dates and the learned A.C.J.M., Ranchi held

that the indemnity bond filed on 29.01.2021 by the petitioner is not in

consonance of the order dated 17.11.2020 and accordingly the same was

rejected vide order dated 26.02.2021.

8. Mr. Rajendra Krishna, learned counsel for the petitioner assailed the

impugned order on the ground that once the Magistrate has ordered to

release the vehicle in question, the concerned court has reviewed the order

dated 17.11.2020, which is not in the domain of the concerned court as

Section 362 Cr.P.C. bar the same. He submits that there is no ground taken

in the counter affidavit about the competency of the District Transport

Officer, Ranchi. He further submits that the vehicle in question is

commercial and it will be destroyed if it is kept in open for a long time.

9. Mr. P.A.S. Pati along with Mr. Rohan Kashyap, learned counsel for the

State fairly submits that Section 362 Cr.P.C. provides no Court, when it has

signed its judgment or final order disposing of a case, shall alter or review

the same except to correct a clerical or arithmetical error. He further

submits that in the counter affidavit the ground of jurisdiction has not been

taken by the State against the said order. The State has also not preferred

any revision or appeal.

10. In view of the above facts and considering the submission of the

learned counsel for the parties, it transpires that the learned court below

on 17.11.2020 directed to release the vehicle in question with certain

conditions as quoted supra. The court below itself has given direction to

the petitioner to pay a sum of Rs.4,53,507/- imposed against him by the

Taxing Officer/MVI or such amount whichever is assessed/modified by the

competent authority in due course, if any to the Transport Authority and

thereafter the petitioner shall submit the amount depositing receipt along

with indemnity bond for release of the bus. The amount of tax, as assessed

by the District Transport Officer, was deposited by the petitioner and

pursuant thereto No Objection Certificate was issued in favour of the

petitioner. There is no doubt that the impugned order is of several pages,

but the court below has not considered Section 362 Cr.P.C. The court below

has got no jurisdiction to review its own order. Neither the State has

denied this fact in the counter affidavit nor the State has preferred any

revision or appeal under the said Act. The vehicle in question will be

destroyed if it is kept open for a long time. This aspect of the matter has

been considered by the Hon'ble Supreme Court in the case of Sunderbhai

Ambalal Desai Versus State of Gujarat reported in (2002) 10 SCC

283. Paragraphs 5 and 17 of the said judgment are quoted herein below:-

"5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be said or otherwise disposed of, after recording such (3) If the property is subject to speedy and natural decay, the dispose of the same.

xxx xxx xxx "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."

11. As a cumulative effect of the aforesaid discussions, the order dated

26.02.2021 passed in Complaint Case No.6858/2020 by the learned

A.C.J.M., Ranchi is quashed. The vehicle, in question 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 as directed vide order dated 17.11.2020.

(ii) One of the surety must be a resident and owner of a commercial

vehicle of District Ranchi.

(iii) The petitioner shall not sale, mortgage or transfer the ownership

of the vehicle on hire purchase agreement or mortgage or in any

manner.

(iv) He shall not change or tamper with the identification of the

vehicle in any manner.

(v) He shall produce the vehicle as and when directed by the Trial

Court.

12. The trial court is at liberty to impose any other terms and conditions

which the trial Court deems fit and proper.

13. On the aforesaid terms and conditions, the vehicle shall be released

in favour of the petitioner.

14. Learned counsel for the petitioner submits that the petitioner will

comply with the aforesaid conditions within a week.

15. If the conditions are complied with, the concerned court shall release

the vehicle immediately.

16. Accordingly, this criminal miscellaneous petition stands allowed and

disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/