Madras High Court
D.Jayachandran vs The Inspector Of Police on 7 February, 2023
W.P.No.3393 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2023
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
W.P.No.3393 of 2023
D.Jayachandran .. Petitioner
Versus
1.The Inspector of Police,
Poonamallee Police Station,
Chennai – 56.
2.The Licensing Authority -cum-
The Regional Transport Officer,
Poonamallee,
Chennai – 71. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus, directing the 2nd respondent herein to return the
original driving licence (DL No.TN73 Z 20150001158) to the petitioner
forthwith.
For Petitioner : Mr.K.Hariharan
For Respondents : Mr.N.Naveenkumar
Government Advocate
1/18
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ORDER
This writ petition has been filed to direct the second respondent herein
to return the original driving licence (DL No.TN73 Z 20150001158) to the
petitioner forthwith.
2.a. It is the case of the petitioner that he is a lorry driver. On
19.01.2023, while he was driving a lorry bearing Reg.No.Tn-73/F-8586 met
with an accident due to which a pedestrian died. Pursuant to the said
accident, the first respondent registered a case against the petitioner in
Crime No.46 of 2023 for the offence under Sections 279 & 304A IPC and
forwarded the FIR to the Judicial Magistrate Court, Poonamallee.
2.b. The first respondent while registering FIR, collected the original
driving licence of the petitioner, retained the same and on 23.01.2023, sent
it to the second respondent and recommended to cancel the licence. The
second respondent has not taken any penal action against his driving license
since the criminal case against the petitioner is pending for investigation.
The petitioner was not convicted by the criminal Court for rash and
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negligent driving. Therefore, it is his contention that unless the criminal
Court convicts him the transport authorities cannot suspend or revoke the
driving license. The petitioner has sent a representation to the second
respondent on 24.01.2023; however, the said licence has not been returned
to him. Hence, the writ petition.
3. Heard Mr.N.Naveenkumar, the learned Government Advocate
appearing for the respondents.
4. Mr.K.Hariharan, the learned counsel appearing for the petitioner
would submit thatthe police has no power to seize the licence and forward
the same to the 2nd Respondent. The 2nd Respondent cannot impound the
licence until the criminal court finds him guilty. Therefore, it is his
contention that in many cases this Court has held that retaining licence by
the 2nd Respondent is not permissible under law without any enquiry. The
police also has no power to seize the licence. In such a view of the matter
mere retaining the licence by the second respondent, in fact will have a
serious consequences and will affect the drivers engaged by the Corporation
and Government Undertakings. Therefore, seeks direction of the court to
release the licence.
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5. Mr.N.Naveenkumar, learned Additional Government
Advocate appearing for the respondents would submit that in view of the
sub-clause (4) to Section 206 of the Motor Vehicles (Amendment) Act,
2019, the police can very well seize the licence from the driver who caused
an accident. Similarly under Section 19(1A) of the Motor Vehicles
(Amendment) Act, 2019, 2nd Respondent viz., Regional Transport Authority
i.e., the R.T.O., have a power to suspend or revoke the licence. Hence,
submitted that when the authority has power under the statute to seize the
impugned licence, the same cannot be returned at the present. Hence
opposed the writ petition.
6. It is not disputed that immediately after the accident the
licence was seized by the first respondent and he appears to have forwarded
the same to the 2nd Respondent. It is useful to refer the Judgment of the
Division Bench in Sethuram vs. The Licensing Authority reported in
2010 Writ L.R.100, wherein para 8 the Division Bench has held that a bare
reading of Section 19(1) shows that the Licensing Authority has the power
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W.P.No.3393 of 2023
to revoke any licence or disqualify a person for a specified period from
holding or obtaining a driving licence, if any of the contingencies
prescribed in Clauses (a) to (h) of Sub-section (1) of Section 19 arises.
Moreover, the power under Section 19(1) can be invoked only after giving
an opportunity of being heard to the holder of the licence and for reasons to
be recorded in writing.
7. Similarly in S. Murugan vs. Licensing Authority
[W.A.(MD) No.176 of 2009 dated 22.06.2009 Madurai Bench of Madras
High Court] also the Division Bench took the same view, however, directed
the Respondent to return the licence as the licence was retained both
without an order in writing and without affording an opportunity of being
heard to the appellant. This is a clear violation of the provisions of the
Statute.
8. Another judgment of the Madurai Bench of this Court, in S.
Krishnan vs. The Licensing Authority [MANU/TN/1360/2012] the
Division Bench in para 6 held that Section 19 itself gives the power to the
authority to disqualify a person from holding a driving licence when the
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licensing authority is satisfied after giving notice to the licensee and
enumerated 10 disqualification clauses. One among them was
Section19(1)(C) which clearly states that when the vehicle is used and a
cognizable offence is made out all that is required is the authority should
satisfy itself whether the petitioner has utilized the vehicle which resulted in
a cognizable offence. Admittedly, this appellant used the vehicle and caused
the death of a person.
9. Following the above judgments, a single judge of this Court
has also passed an order in K. Perumal vs. The Regional Transport Officer
[W.P.(MD) No.9605 of 2022 dated 12.05.2022 – Madurai Bench of
Madras High Court].
10. One of the Writ Petitions filed before me, this Court has
also passed an order in S. Baskaran vs. The Inspector of Police
[W.P.No.33204 of 2022 dated 09.12.2022 – Madras High Court] directing
the authority to release the licence. However, in Para No.5 of the Order,
this Court directed the second respondent to await the final orders in the
criminal proceedings and if the criteria as provided under Section 19(1) of
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W.P.No.3393 of 2023
the Motor Vehicles Act, 1988 is satisfied, second respondent is at liberty to
initiate proceedings against the petitioner for suspension/revocation of the
driving licence.
11. The observation made by me in the above Writ Petition
that action under Section 19(1) of the M.V.Act, could be initiated only after
the criminal case is concluded is no longer good law, in view of the
Division Bench Judgments referred above. In the above Division Bench
judgments the power under Section 19 to suspend or revoke the licence by
the licensing authority have been elaborately dealt with. In such a view of
the matter, the contention that till the criminal courts finds the driver guilty
of the offence, no action could be initiated under section 19 of the Act to
revoke or suspend or impound the licence by the Licensing Authority
cannot be accepted.
12. Now, with regard to the submissions of Mr.Muhilan,
learned Additional Government Pleader that the police can seize the licence
in view of the amendment under Sections 206 and 19 of the Motor Vehicles
Act. It is relevant to extract the provisions of the Motor Vehicles Act
amended and inserted:
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“ 206. Power of police officer to impound document.
(1) Any police officer or other person
authorised in this behalf by the State Government may,
if he has reason to believe that any identification mark
carried on a motor vehicle or any licence, permit,
certificate of registration, certificate of insurance or
other document produced to him by the driver or
person in charge of a motor vehicle is a false document
within the meaning of section 464 of the Indian Penal
Code, 1860 (45 of 1860) seize the mark or document
and call upon the driver or owner of the vehicle to
account for his possession of or the presence in the
vehicle of such mark or document.
(2) Any police officer or other person
authorised in this behalf by the State Government may,
if he has reason to believe that the driver of a motor
vehicle who is charged with any offence under this Act
may abscond or otherwise avoid the service of a
summons, seize any licence held by such driver and
forward it into the Court taking cognizance of the
offence and the said Court shall on the first
appearance of such driver before it, return the licence
to him in exchange for the temporary acknowledgment
given under sub-section (3).
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(3) A police officer or other person seizing
a licence under sub-section (2) shall give to the person
surrendering the licence a temporary acknowledgment
therefor and such acknowledgment shall authorise the
holder to drive until the licence has been returned to
him or until such date as may be specified by the police
officer or other person in the acknowledgment
whichever is earlier:
Provided that if any Magistrate, police officer or other
person authorised by the State Government in this
behalf is, on an application made to him, satisfied that
the licence cannot be, or has not been, returned to the
holder thereof before the date specified in the
acknowledgment for any reason for which the holder is
not responsible, the Magistrate, police officer or other
person, as the case may be, may extend the period of
authorization to drive to such date as may be specified
in the acknowledgment.
(4) A police officer or other person authorised in this
behalf by the State Government shall, if he has reason
to believe that the driver of a motor vehicle has
committed an offence under any of sections 183, 184,
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185, 189, 190, 194C, 194D, or 194E, seize the driving
licence held by such driver and forward it to the
licensing authority for disqualification or revocation
proceedings under section 19:
Provided that the person seizing the licence shall give
to the person surrendering the licence a temporary
acknowledgement therefor, but such acknowledgement
shall not authorise the holder to drive until the licence
has been returned to him.”
13.a. On perusal of the above provisions sub-clause (1) give
power to the police to seize the licence if the police has reason to believe
that there is any mark or document relate to the vehicle is false.
13.b. Similarly sub-clause (2) empowers the police authorised
by the State Government, if the police has reason to believe that the driver
of motor vehicle who is charged with any offence under the Motor Vehicles
Act, may abscond or otherwise, avoid the service of summons, seize any
licence held by such driver and forward it to the Court concerned. The
court concerned can return the licence to the concerned parties.
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13.c. Sub-clause (3) deals with the temporary acknowledgment
by the police officer authorising the holder of driving licence to drive the
vehicle until the licence returned to him.
13.d. Sub-Clause (4) empowers the police officer to seize the
licence if he has reason to believe that the driver of the motor vehicle
committed an offence under any of Sections 183, 184, 185, 189, 190, 194C,
194D, or 194E of the M.V. Act,
14. A careful perusal of the Sub-Clause (4) of the section 206
makes it clear when the police officer has reason to believe that the offence
committed in any of the sections particularly in the Motor Vehicles Act,
such officer can seize the licence. On such seizure, acknowledgment to be
given by the police authorising the holder to drive vehicle until the licence
is returned to him. Only the contingencies enumerate in Section 206 the
licence can be seized by the police officer.
15. Section 19(1) (A) Motor Vehicles (Amendment) Act, 2019
makes it clear that where a licence has been forwarded to the licensing
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authority under sub-section (4) of section 206, the licensing authority, if
satisfied after giving the holder of the driving licence, an opportunity of
being heard, may either discharge the holder of a driving licence or, it may
for detailed reasons recorded in writing, make an order disqualifying such
person from holding or obtaining any licence to drive all or any class or
description of vehicles specified in the licence—
(a) for a first offence, for a period of three months;
(b) for a second or subsequent offence, with revocation
of the driving licence of such person.
16. Therefore, before any action taken under Section 19 of the
Act, an opportunity has to be given by the Licensing Authority. Therefore,
the seizure power of the police introduced under Section 206 of the Act is
only in certain circumstances. Only if the police officer has reason to
believe that offence has committed in any of the sections 183, 184, 185,
189, 190, 194C, 194D, or 194E under sub-clause (4) of Section 206 of the
M.V. Act, he can seize the licence and forward to the Licensing Authority.
The combined reading of Clauses 1, 2, 3, and 4 of Section 206 of M.V.Act
makes it clear that only three contingencies, the police officer can seize the
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licence. Particularly, when the identification mark or licence or the
documents relating to the vehicle are false those documents can be seized
under sub-clause (1).
17. The second contingency on which police officer can seize
the licence is if any person charged under the M.V. Act, try to abscond or
avoid service of summons, licence may be seized and temporary
acknowledgment can be given. Another circumstances under Sub-clause 4
of section 206 of the Act is when the police officer has reason to believe
that the driver of a motor vehicle has committed an offence under any of
sections 183, 184, 185, 189, 190, 194C, 194D, or 194E, of the M.V.Act, the
licence can be seized by the police officer. The power vested under Section
206 for seizure of the licence is not automatic. Only when the police
officer records the reasons to believe that any of the circumstances as
narrated in Section 206 is attracted he can exercise such a power. The word
“reason to believe” is defined under Section 26 of the Indian Penal Code
which reads as follows:
“Section 26 of The Indian Penal Code
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26. “Reason to believe”.—A person is said to have
“reason to believe” a thing, if he has sufficient cause to
believe that thing but not otherwise.
18. The word “reason to believe” excludes the mere suspicion
or doubt. The word believe is very much stronger word than suspect and
involves the necessity of showing the circumstances that a reasonable man
must have felt convinced his mind, that circumstances exists to proceed
under section 206 of the M.V. Act. “Reason to believe” means belief which
a reasonable man will entertain on the facts before him and it contemplates
an objective based on the independent care and deliberation and the same
must be based on the good faith. In substance, the reason to believe means
that a person must have a reason to believe if the circumstances are search
that reasonable man would, by probable reasoning conclude or infer
regarding the nature of the thing concerned. Such circumstances need not
necessarily be capable of absolute conviction or inference but it sufficient
such circumstances are creating a cause to believe by chain of probable
reasoning leading to the conclusion or inference about the nature of the
thing.
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19. In such a view of the matter, even to exercise power under
Section 206 the officer exercising the power has to record reasons in writing
considering the facts and circumstances of the particular case. The seizure
of the licence is not automatic. Without recording reasons obtaining to the
facts and circumstances of the particular case such power cannot be
exercised mechanically. With regard to exercise the power under section 19
of the Act by the RTA, it is relevant to note that before exercising such
action a notice of opportunity to be given to the holder of licence. Sub-
clause 2 of Section 19 makes it very clear that only the order under sub-
clause 1 or Sub-clause 1A is made the holder of driving licence shall
forthwith surrender his licence to the Licensing Authority making the order,
if the driving licence is not already ordinarily surrendered.
20. In such a view of the matter, this court is of the view that
seizure of the licence to take action under section 19 is not a mandatory.
Irrespective of licence being surrendered or produced before the authorities,
the action can be initiated by the authorities under Section 19 on the report
submitted by the police. Therefore, this Court is of the view that merely on
the basis of the FIR is registered particularly in the other IPC offences, the
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police officer cannot have power to seize the licence. If at all any action is
contemplated under Section 19, they may forward a report to the concerned
RTA to take action under Section 19 of the Act. On such report the
licensing authority is satisfied any of the contingencies in clauses 1(a) to (h)
of Section 19 and sub-clause 1A of the Act and after giving an opportunity
to the holder of the licence may pass an order as contemplated in Section 19
of the Act.
21. Accordingly this Court hold that the seizure of the licence
in the given case is not valid in the eye of law and the 2 nd Respondent is
directed to return the licence within one week from the date of receipt of
copy of this order. It is well open to the 1 st Respondent to send a report to
the RTA for taking appropriate action. The RTA may after providing
opportunity to the petitioner may proceed under Section 19 of the M.V. Act
and to pass an order on merits. If any order passes under Section 19 of M.V
Act, by seizing the licence or suspending the licence, the licence holder
shall forthwith surrender the licence to the authorities. In the event of failure
of surrender the licence by holder such case the authorities may seize the
licence forthwith.
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22. In such a view of the matter, the Writ Petition is allowed.
No costs.
07.02.2023
ata
Index : Yes / No
Speaking Order : Yes / No
To
1.The Inspector of Police,
Poonamallee Police Station,
Chennai – 56.
2.The Licensing Authority -cum-
The Regional Transport Officer,
Poonamallee,
Chennai – 71.
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W.P.No.3393 of 2023
N.SATHISH KUMAR, J.
ata
W.P.No.3393 of 2023
07.02.2023
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