Nabaratna @ Nabaratan Agrawal vs State Of Odisha
2021 Latest Caselaw 12770 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLMC No. 2040 of 2021,
                           CRLMC No. 1401 of 2021 &
                           CRLMC No. 2163 of 2021.
      Applications under Section 482 of the Code of Criminal Procedure,
      1973 challenging the orders passed by the courts below in rejecting
      application filed under Section 457 Cr.P.C. for release of the vehicles.

                                   ---------------
AFR   CRLMC No. 2040 of 2021

      Nabaratna @ Nabaratan Agrawal                  ......      Petitioner

                               -Versus-
      State of Odisha                                .....      Opp. Party
      CRLMC No. 1401 of 2021
      Saroj Singh                                    .....      Petitioner

                               -Versus-

      State of Odisha                                .....      Opp. Party

      CRLMC No. 2163 of 2021
      Chandan Kumar Jena                             .....     Petitioner

                               -Versus-

      State of Odisha                                .....      Opp. Party

      Advocate(s) appeared in these cases: -
      _________________________________________________________

      For Petitioners          :      M/s. S.K. Nanda, A. Nanda &
                                      B. Sahoo, Advocates
                                      (in CRLMC No. 2040 of 2021)



                                                            Page 1 of 20
                                    M/s. A.K. Sahoo & B.K. Nayak,
                                   Advocates.
                                   (In CRLMC No.1401 of 2021)

                                   M/s. Bigyan Kumar Sharma, S. Palei,
                                   S.K. Singh, J. Pradhan, Advocates.
                                   (In CRLMC No. 2163 of 2021)

     For Opp. Parties     :
                          Mr. S.K. Mishra,
                          Addl. Standing Counsel
                          (In all the cases)
_________________________________________________________

CORAM :
       JUSTICE SASHIKANTA MISHRA

                             ORDER

th 13 December, 2021

SASHIKANTA MISHRA, J.

In all these applications, the petitioners challenge the

orders passed by the courts below in rejecting their applications filed

under Section 457 Cr.P.C. for release of their vehicles.

FACTS CRLMC No. 2040 of 2021

2. In this case, the petitioner claims to be the registered

owner of a Tractor bearing Registration No.OD-31-F-9493 with Trailer

bearing Registration No. OD-31-F-9494. The said vehicle was seized

in connection with Dunguripali P.S. Case No. 138/2021 corresponding

to G.R. Case No. 83/2021 of the Court of learned G.N. -cum-

J.M.F.C., Dunguripalli for the alleged commission of offence under

Sections 279/304(A) of IPC against one Jitendra Behera, driver of the

said Tractor. During investigation, the said accused expired and the

case abated against him and accordingly final report was submitted as

such on 05.08.2021. The petitioner being the owner of the vehicle filed

an application under Section 457 Cr.P.C. for release of the seized

Tractor and Trailer. Learned Magistrate, upon receipt of report from

I.O. held that there is no requirement of the vehicle for further

investigation and that no confiscation proceeding has been initiated

against him. But it was found that the vehicle was not insured as on the

date of occurrence. On such finding, learned Magistrate by referring to

the decision of this Court rendered in the case of Ramakrushna

Mahasuar vs. State of Odisha reported in (2021) 81 OCR 635 held

that insurance of the seized vehicle was not valid on the date of

accident and it is difficult to ascertain the compensation amount and

accordingly rejected the petition. The petitioner thereafter filed revision

vide Criminal Revision No. 11 of 2021 in the Court of Sessions Judge,

Sonepur. By order dated 20.09.2021, the learned Sessions Judge by

referring to Rule 6 of Orissa Motor Vehicles (Accidents Claims

Tribunal) Rules, 2018 (herein after referred as "2018 Rules") (wrongly

mentioned as OMV Rules, 2018) and the decision of this Court in

Ramakrushna Mahasuar (supra), held that the petitioner did not

furnish any sufficient security to satisfy the compensation to be paid to

the claimant, if any, before the trial Court or before passing of the

impugned order and therefore, did not deem it proper to interfere with

the order passed by the learned G.N. -cum- J.M.F.C., Dunguripalli.

The said order is impugned in the present application.

CRLMC No. 1401 of 2021.

3. In this case, the petitioner claims to be the owner of a

Truck bearing registration No.OD-23A-7371, which was involved in

an accident that occurred on 02.03.2021 leading to registration of

Barkote P.S. Case No.65 of 2021 corresponding to C.T. Case No. 113

of 2021 of the Court of learned S.D.J.M., Deogarh for the alleged

commission of offence under Sections 279/304-A of IPC. The vehicle

was seized by Barkote Police. The Driver of the said Truck was shown

as the accused. The petitioner filed an application under Section 457

Cr.P.C. before the learned S.D.J.M., Deogarh for release of the vehicle

pending trial of the case. Learned S.D.J.M. vide order dated 11.06.2021

by referring to Rule-6 of the 2018 Rules held that as the vehicle was

not insured on the date of the accident, the prayer of the petitioner for

release of the vehicle cannot be allowed and accordingly rejected such

petition. Being aggrieved, the petitioner carried the matter in revision

to the Court of Sessions in Criminal Revision No. 6 of 2021-04/2021 of

the court of learned Addl. Sessions Judge, Deogarh. Learned Addl.

Sessions Judge also relied upon the aforesaid rules and the decision of

this Court in the case of Ramakrushna Mahasuar (supra) and held that

no case for exercise of revisional jurisdiction is made out in respect of

the impugned order and accordingly dismissed the revision petition.

The said order is impugned in the present application.

CRLMC No. 2163 of 2021

4. In this case, the petitioner claims to be the owner of a

Tipper bearing registration No. OD-29-H-8181, which was involved in

an accident occurring on 28.07.2021. In connection with such accident,

Keonjhar Town P.S. Case No. 266/2021 was registered corresponding

to G.R. Case No. 1170/2021 for the alleged commission of offence

under Section 279 of IPC against the driver of the said Tipper. The

petitioner filed an application under Section 457 of Cr.P.C. for release

of the vehicle during pendency of the proceeding before learned

S.D.J.M., Keonjhar. Learned S.D.J.M. rejected such prayer for release

of the vehicle on the ground of non-existence of the insurance policy

covering the date of accident following the ratio laid down by this

Court in Ramakrushna Mahasuar (supra). Challenging such order, the

petitioner filed revision in Criminal Revision No. 07/07 of 2021 in the

court of learned Addl. Sessions Judge-cum- Special Judge (Vigilance),

Keonjhar. Vide judgment dated 25.09.2021, learned Addl. Sessions

Judge-cum- Special Judge (Vigilance) held that the vehicle was not

covered under a valid policy of insurance covering the date of the

accident and therefore, the vehicle cannot be released in favour of the

petitioner. In holding so, the learned Addl. Sessions Judge-cum-

Special Judge (Vigilance) relied upon the judgment of this court in

Ramakrushna Mahasuar (supra). The said order is impugned in the

present application.

5. Heard Mr. S.K. Nanda, learned counsel for the petitioner

in CRLMC No, 2040 of 2021; Mr. A.K. Sahoo, learned counsel for the

petitioner in CRLMC No. 1401 of 2021; Mr. B.K. Sharma, learned

counsel for the petitioner in CRLMC No. 2163 of 2021 and Mr. S.K.

Mishra, learned Addl. Standing Counsel for the State in all the cases.

SUBMISSIONS

6. Mr. S.K. Nanda has contended that in his case the

provision contained in Rule-6 of the 2018 Rules cannot be enforced

because the driver of the Tractor has expired and there is no claim for

compensation from any quarter whatsoever.

Mr. A.K. Sahoo contends that two vehicles were

admittedly involved in the accident but police submitted charge sheet

against one vehicle only and therefore, acceptance of such charge sheet

by the learned Magistrate is improper.

Mr. B .K. Sharma has contended that unless the owner of

the vehicle is called upon to furnish security for a particular amount, he

cannot be expected to do so on his own. It is only if the owner fails to

furnish the security as ordered by the court can his application for

release of the vehicle be rejected. It is additionally argued by Mr.

Sharma that in his case learned Magistrate committed an illegality in

holding that the vehicle in question was not covered under policy of

insurance even though there were ample materials on record to show

that the vehicle was actually under insurance coverage at the relevant

time. In this regard Mr. Sharma has referred to the insurance policy

enclosed as Annexure-4 to his CRLMC petition. It reveals that the

policy was issued on 28.07.2021 at 2.53 p.m. whereas the accident took

place at 9 p.m.. The insurance Company however, committed an

illegality in mentioning the period of insurance as commencing from

00.00 hours on 29.07.2021 to midnight of 28.07.2022. Referring to

Section 64(VB) of the Insurance Act, 1938 Mr. Sharma would argue

that premium amount having been duly paid on 28.07.2021, the

Insurance Company is duty bound to assume risk from such date and

not from any later date. Mr. Sharma has also referred to Rule-4 of the

Insurance Regulatory and Development Authority (Manner of Receipt

of Premium) Regulations, 2002 (in short "2002 Regulations"), which

prescribes that in all cases of risks covered by the policies issued by an

insurer, the attachment of risk to an insurer will be in consonance with

the terms of section 64-VB of the Act (The Insurance Act).

7. Apart from contending as above, learned counsel for the

parties have specifically raised the ground that the courts below have

never directed them to furnish any security not quantified such amount

and that they are ready and willing to furnish security for such amount

as may be fixed by the respective courts and therefore, necessary

directions may be issued by this Court.

8. Per contra, Mr. S.K. Mishra, learned Addl. Standing

Counsel has supported the impugned orders by contending that Rule-6

of 2018 Rules puts an embargo on release of vehicle involved in an

accident-causing death or bodily injury to any person or damage to

property if on the date of accident, the vehicle is not covered under a

policy of insurance covering 3rd party risks. This Court has already

dealt with the matter in Ramakrushna Mahasuar's case, which all the

three courts below have followed. Therefore, according to Mr. Mishra,

there is no necessity of interference by this court with the impugned

orders.

FINDINGS

9. A reference to Rule-6 of 2018 Rules, at the outset would

be in order:

"6. Prohibition against release of motor vehicle involved in accident:-- (1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.

(2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in sub-rule(1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident."

10 A reading of the Rule would reveal that undoubtedly

certain restrictions have been placed by the Legislature in the matter of

release of a vehicle involved in an accident if the said vehicle is not

covered by an Insurance Policy but, it is also evident that an exception

has been carved out in the latter part of sub-Rule(1) to the effect that

such vehicle can also be released if the registered owner furnishes

"sufficient security to the satisfaction of the Court" to pay for

compensation that may be awarded in a claim case arising out of such

accident.

11. The aforementioned rules came into force on 28.12.2018,

i.e., the date on which they were published in the Odisha Gazette.

Further, the said rules were framed in exercise of powers conferred by

Section 176 of the Motor Vehicles Act, 1988, and in supersession of

the Odisha Motor Vehicles (Accident Claims Tribunal) Rules, 1960.

The Odisha Motor Vehicles (Accident Claims Tribunal) Rules, 1960

(hereinafter referred to as "Rules, 1960") had 32 provisions, but there

was no provision dealing with release of vehicle. For the first time such

a provision came into existence in the form of Rule-6 of 2018 Rules. It

would be apt to refer to the background of framing such a rule. In the

case of Jai Prakash vs. M/s. National Insurance Company and others

reported in JT 2009 (15) SC 443, the Apex Court while issuing several

directions to different authorities with regard to motor accidents claim

cases held as follows:

"28. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf."

Subsequently, in the case of Ushadevi & Anr. vs. Pawan

Kumar & Others, (Civil Appeal No(s). 9936-9937/2016), decided on

13.09.2018, the Hon'ble Supreme Court while reaffirming the

principles laid down in Jai Prakash (supra) have held as follows:

"41. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf."

"xxxxxxxxxx. What has been stated in paragraph- 41 (quoted in this judgment hereinbefore as paragraph-28 of its judgment in Jai Prakash mentioned supra) is a some kind of solace to the victims. But for the said purpose, proper rules are required to be framed. Xxxxxxxxxxxxx"

Referring thereafter to Rule-6 of the Delhi Motor

Accidents Claims Tribunal Rules, 2008, the Apex Court directed all

States to see that such a rule is introduced if already done, so that the

victims upon accident get some compensation.

12. Delhi Motor Accident Claims Tribunal Rules, 2008 was

notified in the Delhi Gazette on 13th July 2009. Rule-6 thereof reads as

follows:

"6. Prohibition against release of motor vehicle involved in accident.-(1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.

(2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in subrule (1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident."

Obviously, Rule-6 of 2018 Rules is in pari materia to

Rule-6 of the Delhi Motor Accident Claims Tribunal Rules, 2008

quoted above.

13. As already referred to, the Hon'ble Supreme Court Jai

Prakash (supra) have held that where there is no insurance cover for

vehicle, the owner should be directed to offer security or deposit an

amount that may be adequate to satisfy the award that may be

ultimately passed xxxxxxxxxxx.

14. A reading of the 2018 Rules would suggest that

sufficiency of the security to be furnished by the owner must be to the

satisfaction of the Court. In this context, it is contended by Mr. B.K.

Sharma that second limb of Sub-Rule (1) of Rule-6 may not be

workable because there may not be any claim case or, there may be a

claim case resulting in nil award or, there may be a case where

negligence of the driver may not be proved and in such a case

compensation may not be awarded. Further, under Section 168 of the

Motor Vehilces Act, the Claims Tribunal shall specify the amount in

the form of compensation which shall be paid by the insurer or owner

or driver of the vehicle involved in the accident or by all or any of them

as the case may be. Therefore, which compensation amount shall be

taken into consideration by the learned court below while asking for

security from the registered owner for release of the vehicle will be

difficult to determine.

Undoubtedly, this is a vexed question having no direct

answers. It may be difficult for a criminal Court to have definite

knowledge of the amount that would be awarded as compensation in a

claim case that may be filed. In this scenario, it needs to be determined

as to what would be a correct approach to address this problem viz-a-

viz the mandate of Rule-6 of 2018 Rules. As quoted hereinbefore,

while sub-rule 1 authorizes the Court to ask for security to pay for the

compensation that may be awarded in the claim case, sub-rule 2

authorizes the Court also to sell off the vehicle in public auction on

expiry of three months after the vehicle is taken in possession (seized)

by the investigating officer and deposit the sale proceeds thereof in the

Claims Tribunal having jurisdiction over the area in question.

Obviously, sub-rule 2 is a sort of exception to sub-rule 1 to be resorted

to in the event of failure of the owner to furnish security as required

under sub-rule 1 within three months of the seizure of the vehicle. In

such event, it would be lawful for the Court to sell of the vehicle in

public auction and deposit the sale proceeds for payment of

compensation. So, on a conjoint reading of sub-rules 1 and 2, it would

be apparent that the pious intent of the legislature being to safeguard

the interest of the victim of a road accident caused by an uninsured

vehicle, Rule 6 has ensured that the same remains protected either by

asking the owner to furnish sufficient security keeping in view the

compensation that may be awarded or by selling off the vehicle and

applying the sale proceeds thereof for such purpose.

So, taking a cue from the legislative scheme as ingrained

in Rule-6, it would not be unreasonable to hold that if and when the

Court is unable to quantify the compensation, it would be proper to ask

for security at least equal to the present market value of the vehicle,

which can be invoked, if need be at the relevant time to pay

compensation that may be awarded in future.

In a case before the High Court of Delhi, i.e. Rajesh Tyagi

& Ors. Vs. Jaibir Singh & Ors. (F.A.O. No. 842 of 2003) decided on

8th June, 2009, a similar view was taken wherein it was observed as

under:

"xxxxxxx if the vehicle is not insured, the vehicle shall be released on superdari only after the owner furnishes sufficient security to the satisfaction of the Court to pay the compensation or at least equal to the value of the vehicle"

Adopting such a course of action alone can strike a

balance between the right of a victim of the accident or his dependants

as the case may be, to receive compensation for their loss vis-à-vis the

right of the vehicle owner to have his vehicle released.

15. Thus, from the discussion made hereinbefore, it is

manifestly clear that the impugned orders rejecting the application for

release of vehicle without calling upon the vehicle owners to furnish

security as per rules, and/or by giving them opportunity to do so is

contrary to the statutory mandate. Such rejection enures to the benefit

of no one as in the process, neither the right of the victim is taken care

of nor the right of the owner to use his vehicle is protected. On the

contrary, the vehicle would continue to remain idle and thereby be

subject to deterioration with each passing day. Having regard to the

spirit of the ratio laid down by the Apex Court in the case of

Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002)10

SCC 283 it would be in the fitness of things for the Court to direct

release of the vehicle albeit after complying with the requirements of

Rule-6 of the 2018 Rules.

16. From a conspectus of the analysis made above and on

reference to the specific language employed in Rule-6, it would be

evident that giving effect to the latter part of Sub-Rule-1 of Rule-6

entails the following steps:

(i) The court concerned is to quantify an amount to be

furnished as security which, in its opinion would be

adequate to cover the compensation that may be awarded

in a claim case arising out of such accident. In the event

the Court is unable to quantify such security it may call

upon the owners to at least furnish security to the extent of

the present market value of the vehicle.

(ii) Upon furnishing of such security, the vehicle can be

directed to be released by imposing such other conditions

as it may deem fit and proper in the facts and

circumstances of the case.

17. In all the three cases before this Court, no such direction

was issued to the owners of the vehicles (petitioners) to furnish security

and yet their applications were rejected on the ground that they had

failed to furnish such security.

18. In view of the discussion on the legislative intent made

hereinbefore, this Court is constrained to observe that the methodology

adopted by the concerned courts amounts to putting the cart before the

horse, inasmuch as, without calling upon the petitioners to furnish

security it has been held in all the three cases that the petitioners have

failed to furnish security for such amount.

19. As regards the directions issued by this Court in

Ramakrushna Mahasuar's case, it is to be kept in mind that the above

aspects were not raised before the Court. In that case, the correctness of

the order passed by the court below in rejecting the prayer for release

of vehicle on the ground of absence of insurance policy was raised

which was answered by referring to Rule-6 of the 2018 Rules. The

cases at hand stand on different footing inasmuch as, all the petitioners

herein have specifically contended that they are ready and willing to

abide by the provisions of Rule-6 of 2018 Rules by furnishing such

security as may be directed by the courts below.

20. Having regard to the discussion made hereinbefore, it is

evident that the impugned orders cannot be sustained in the eye of law,

thereby warranting interference by this Court.

21. As regards the contentions raised by Mr. Sharma with

regard to date and time of commencement of the insurance policy, it is

observed that the same involves interpretation of the provisions of the

Insurance Act and 2002 Regulations vis-à-vis the Motor Vehicles Act.

Obviously, the criminal court cannot be expected to decide the

controversy arising therefrom. It is open to the petitioner to approach

the appropriate forum for redressal of his grievance on such score.

22. For the forgoing reasons therefore, this Court holds that

the courts below have committed manifest error in not correctly

interpreting the provisions of Rule-6 of 2018 Rules and have therefore,

committed illegality in rejecting the petitions filed by the owners of the

concerned vehicles for release of the said vehicles without first calling

upon them to furnish security as per Rule-6 of 2018 Rules. As such, the

impugned orders are liable to be quashed.

23. In the result, all the impugned orders are hereby quashed.

The concerned courts below are directed to act as per the steps

indicated under paragraph-16 of the judgment and pass appropriate

order thereupon. It goes without saying that in the event the owners do

not furnish sufficient security to the satisfaction of the courts

concerned, no order for release of the vehicles shall be passed.

24. With the above observations and directions, the CRLMC

applications are disposed of.

...........................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 13th December, 2021/ A.K. Rana