✦ High Court of India

Misc. Case No. 02 of 2021 · The High Court

Case Details

AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 214 of 2021 From an order dated 24.05.2021 passed by the learned Judicial Magistrate First Class, Parjang passed in Criminal Misc. Case No. 02 of 2021. Nityananda Nayak …. Petitioner -versus- State of Orissa …. Opp. Party Advocates appeared in this case through Hybrid Mode : For Petitioner : Mr. Manas Chand, Advocate For Opp. Party : Mr. S.S. Pradhan, Addl. Govt. Advocate CORAM: JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment : 25.03.2022 ……………………………………………………………………….. Savitri Ratho, J The petitioner-Nityananda Nayak has filed this Criminal Revision petition challenging the impugned order dated 24.05.2021 passed by the learned Judicial Magistrate First Class, Parjang in C.M.C. No.02 of 2021 arising out of G.R. Case No.42 of 2021 corresponding to Parjang P.S. No. 41 of 2021 rejecting CRL REV No. 214 of 2021 Page 1 of 17 his application filed under Section- 457 of Cr.P.C. for interim release of his vehicle bearing Registration No. OD-19F-9712. 2. The prosecution allegations in short are that on 21.01.2021 while the petitioner who is the Registered Owner- of a Hywa Goods Carrier bearing Registration No. OD-19F-9712 having Engine No. B591803251J63465064 and Chassis No. MAT448062F2J16294 was driving the said vehicle , it was involved in a road accident injuring two persons , out of whom one sustained severe injuries and the other succumbed at the spot. Parjang P.S. No.41 of 2021 was registered against the petitioner for commission of offences punishable under Section 279/338/304(A)/337 of the IPC read with Section – 180 /181 /183 /184 /185 /192 /196 of the Motor vehicle Act 1954 , of the IPC and the vehicle was seized by the police . 3.

Legal Reasoning

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 CRL REV No. 214 of 2021 Page 8 of 17 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. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.” ….. 10. The decisions rendered in the case of Ghasana Mohapatra , Madhavi Patra and Dillip Das ( supra) are not relevant for deciding this case as they do not specifically deal with release of an uninsured vehicle involved in a motor vehicle accident and need not have been cited by the learned counsel for the petitioner . In the case of Madhavi Patra ( supra) , this Court directed for release of the motorcycle vehicle subject to certain conditions CRL REV No. 214 of 2021 Page 9 of 17 including the condition that the petitioner would not allow her husband ( who was an accused in a case of rape and had used the vehicle to escape ) to use the vehicle. In the case of Ghasana Mohapatra ( supra) , this court directed for release of a vehicle which had been seized in connection with case registered under the NDPS Act , if it was not produced before the Collector or designated authorized officer or the confiscation proceeding was not completed within a specified time. In the case of Dillip Das ( supra ) , this Court directed for release of a vehicle seized in connection with case under the Odisha Excise Act as the confiscation proceedings had not yet been initiated . 11. Recently , a division bench of this Court in the case of Ashis Ranjan Mohanty vs State and others reported in (2022) 85 OCR 705 , a PIL filed by a practicing Advocate concerned about the ever- growing stock of seized vehicles and other properties in the various police stations in the State of Odisha, after referring to and discussing the decisions of the Supreme Court in Manjit Singh v. State, Basavva Kom Dyamangouda Patil v. State of Mysore (1977) 4 SCC 358; Sunderbhai Ambalal Desai v. State of Gujarat CRL REV No. 214 of 2021 Page 10 of 17 (2002) 10 SCC 283, and General Insurance Council v. State of A.P. (2010) 6 SCC 768 and the Delhi High Court in Manjit Singh v. State decided on 10th September 2014 in CRLMC No.4485 of 2013), has held as follows : “…13. It is clarified that hereafter as far as release of the vehicle is concerned, the directions issued in this order would prevail. 14. In light of the decisions of the Supreme Court referred to hereinbefore, and the directions issued in Manjit Singh v. State (supra), the following specific directions are issued: Articles/properties in general 15. (i) Within one week of their seizure, properties seized by the police during investigation or trial are to be produced before the Court concerned; (ii) the concerned Court shall expeditiously, and not later than two weeks thereafter, pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (1977) 4 SCC 358; Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, and General Insurance Council v. State of A.P. (2010) 6 SCC 768. (iii) In any event, no property will be retained in the malkhana of the Court or in the police station longer than a period absolutely necessary for the purposes of the case; if it has to be longer than three months, the Court CRL REV No. 214 of 2021 Page 11 of 17 concerned will record the reasons in an order but on no account will the period of retention exceed six months. (iv) In the event the property seized is perishable in nature, or subject to natural decay, or if cannot for any reason be retained, the Court concerned may, after recording such evidence as it thinks necessary, order the said property to be disposed of by way of sale, as the Court considers proper, and the proceeds thereof be kept in a separate account in a nationalized bank subject to orders of the concerned court. Vehicles 16. As regards the vehicles, the following directions are issued: (I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after (a) preparing a detailed panchnama; (b) taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles; (c) encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court; (d) preserving the encrypted digital photograph and video clip on a pen drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court CRL REV No. 214 of 2021 Page 12 of 17 (e) preparing a valuation report of the vehicle by an approved valuer; (f) obtaining a security bond. (II) the concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence. (III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stage of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence. (IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception. (V) In the event of the vehicle in question being insured, the concerned Court shall issue notice to the owner and the insurance company prior to disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that he has claimed insurance/released his right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in public auction. (VI) If a vehicle is not claimed by the accused, owner, or the insurance company or by a third person, it may be ordered to be sold by public auction. CRL REV No. 214 of 2021 Page 13 of 17 General directions 17. The following general directions shall also be adhered to: (i) The concerned Court may impose any other appropriate conditions which it may consider necessary in the facts and circumstances of each case. (ii) The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused. (iii) If the Court is of the view that evidence in relation to the condition of the vehicle is necessary to be recorded even before its disposal in terms of the directions in paras 9 and 10 above, then such evidence be recorded, in the presence of the parties, forthwith and prior to disposal of the property. (iv) Special features of the property in question could be noted in the Court’s order itself in the presence of parties or their counsel. Besides, a mahazar clearly describing the features and dimensions of the movable properties which are the subject matter of trial could be drawn up. (v) If a person to whom the interim custody of the property/vehicle is granted is ultimately found not entitled to it, and is unable to return it, its value shall be recovered by enforcing the bonds and the security taken from such CRL REV No. 214 of 2021 Page 14 of 17 person or recovering the monetary value from him as arrears of land revenue. (vi) As regards the directions issued in 16 (I)(c) and (d) is concerned, the Registry of the High Court will communicate to each of the District Judges the detailed Standard Operating Procedure (SoP) that is required to be followed. The directions issued in 16(I) (c) and (d) will become operational as soon as the said SoP is received by the concerned District Judge. (vii) Similar directions concerning the encryption of digital photographs and video clips will become effective on receipt of the SOP by District Judge from the registry of the High Court…..” 12. From a careful reading of the aforesaid decisions and the provisions of Rule 6 of the Orissa 2018 Rules , it is apparent that an uninsured vehicle can be released on the registered owner providing “sufficient security to the satisfaction of the Court ” . “sufficient security” in such cases can not be more than the value of the vehicle . This value can be arrived at by asking the competent authority to get the valuation of the vehicle done immediately if necessary through an approved valuer , so that the said vehicle can be released in favour of the registered owner promptly if he files an application for its release and deposits the value of the vehicle . The conditions laid down in the decisions referred to above should be kept in mind , while directing for interim release . The valuation of CRL REV No. 214 of 2021 Page 15 of 17 the vehicle can be done in the presence of the owner , if he so desires and cooperates . As provided in the Rule , if the owner does not come forward to take custody of the vehicle by providing the security , the same should be sold in open auction . This would be in the interest of the victims of the accidents as well as the owner and even the State as this would get rid of the menace of the seized vehicle taking up space in the police station or outside the police station . 13. The learned JMFC having rejected the application for interim release without allowing opportunity to the registered owner to provide sufficient security , has committed error for which the impugned order is liable for interference . The impugned order dated 24.05.2021 is therefore set aside and the matter is remanded to the learned JMFC Parjang , to enable him to get the valuation of the vehicle done and provide an opportunity to the registered owner to furnish cash security equal to the said amount. In case of failure of the petitioner to furnish the said amount , the vehicle should be put to auction and the proceeds deposited in the Court so that it can be adjusted towards the compensation awarded to the victim or the families of the victim or returned to the owner as the case may be . The process of valuation be completed within four weeks from receipt of this order or production of the certified copy , whichever CRL REV No. 214 of 2021 Page 16 of 17 is earlier . Adequate opportunity should be afforded to the petitioner to deposit the said amount ( which should not be less than three weeks ) and on his failure to do so , the vehicle should be put to auction promptly. 14. With the said observations , this Criminal revision is

Arguments

Mr. Manas Chand, learned counsel for the petitioner in support of his prayer for interim release of the vehicle before conclusion of the trial , relies on the decisions of the apex Court in the case of Sunderbhai Ambalal Desai & Ors. vrs. State of Gujarat reported in (2002)10 SCC 283 : (2003) 24 OCR SC 444 , of this Court in the case of Smt. Madhavi Patra vrs. State of Orissa reported in (2005) 1 OLR 518 , Dillip Das vrs. State of CRL REV No. 214 of 2021 Page 2 of 17 Odisha reported in 2019 (III) ILR CUT 386 and Ghasana Mahapatra vrs. State of Orissa reported in 2019( 1) OLR 275 : 2019( I) ILR CUT 514 . 4. Mr. S.S. Pradhan, learned Additional Govt. Advocate referring to the provision of Rule 6 of Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 2018 ( in short the "Odisha 2018 Rules"), the decision of the Supreme Court in the case of Jai Prakash vs National Insurance Company Ltd reported in (2010) 2 SCC 607 and the case of Ramakrishna Mahasuar vs State of Odisha reported in (2021) 81 OCR 635 , vehemently opposes the prayer for interim release submitting that since the vehicle was not covered by a valid insurance policy on the date of accident, it cannot be released in exercise of power under Section 457 of the Code of Criminal Procedure . 5. Perusal of the impugned judgement reveals that that the insurance policy was valid from 23.01.2021 to 22.01.2022. The accident / incident took place before that , i.e on 21.01.2021. The learned J.M.F.C Parjang has rejected the prayer for interim release as the insurance policy was not valid on the date of accident and as one victim had succumbed to his injuries CRL REV No. 214 of 2021 Page 3 of 17 and another had sustained grievous injuries and was still under treatment. 6. In the case of Jai Prakash ( supra) , the Supreme Court has held as follows : ….“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.” This direction has been reiterated by the Supreme Court in the case of Ushadevi & Anr. vs. Pawan Kumar & Others , (Civil Appeal No(s). 9936-9937/2016), decided on 13.09.2018, and the State Governments who had not framed such rules were directed to bring out necessary notifications on the lines of the notification issued by the CRL REV No. 214 of 2021 Page 4 of 17 Govt. of NCT of Delhi keeping in view the decision in Jai Prakash (supra) within a period of twelve weeks. 7. The Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 2018 have thereafter come into force with effect from 28.12.2018 which contain Rule 6 which is the pari material provision of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 Rule-6 of the Odisha 2018 Rules, provides 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 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 CRL REV No. 214 of 2021 Page 5 of 17 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." From a careful reading of the rule , it is apparent that keeping in mind the difficulties tribulations of many victims and families of victims, who are not paid compensation awarded in their favour in a claim case , on account of the inability of the owner of the vehicle to satisfy the award as the vehicle is uninsured because the insurance policy does not cover third party risk , Rule 6 has been framed . There is no absolute bar in the rule for interim release of the said vehicle , but such release has been made subject to certain conditions in order to protect the interest of the accident victims who are entitled to payment of compensation . After securing the interest of accident victims in case of uninsured vehicles , the vehicle can be released if the registered owner furnishes "sufficient security to the satisfaction of the Court" so that the said amount may utilised towards compensation in a claim case arising out of such accident. Keeping in mind that it would not be in the interest of any person if the vehicle is left lying idle in the police CRL REV No. 214 of 2021 Page 6 of 17 station resulting in reduction of its value , provision has also been made for auction of such vehicle in case the registered owner is unable to provide adequate security for its release. 8 . In the case of Ramakrushna Mahasuar ( supra) , this Court referring to Rule 6 of the Orissa 2018 Rules , has held that unless the vehicle involved in the accident has insurance against third party risk in the name of the registered owner of the vehicle on the date of accident , it cannot be released by the Officer effecting the seizure and even the Court cannot release such a vehicle without requiring the owner to furnish adequate security . This Court further observed that in order to rule out release of such vehicles on production of spurious insurance policies , the Investigating Officer allowing such release has to certify that he has verified the genuineness and validity of the insurance certificate such policy and an attested copy of the policy is to be kept in the record and in case it is found that vehicles are released on the basis of fake certificates the concerned officer will be proceeded against. It is necessary to state at this juncture that as on date verification of insurance policies have become easy as details are available online on the website of the Insurance Information Bureau ( in short “ IIB”) which maintains records of vehicles with effect CRL REV No. 214 of 2021 Page 7 of 17 from 01.04.2010 or the VAHAN e services website and an investigating officer cannot give any excuse for accepting a spurious certificate for releasing vehicle , but details of third party risk have to be verified after a perusal of the policy . 9. In the case of Sundarbhai ( supra ) in the matter of seizure and release of vehicle, the Supreme Court has held as follows: …“ Vehicles 15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

Decision

disposed of. 15. Urgent certified copy of the order be supplied on proper application. A copy of this order be sent to the learned JMFC, Parjang for compliance. …………………. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 25th March, 2022 / puspa CRL REV No. 214 of 2021 Page 17 of 17

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