# Arvind Kumar Revisionist v. State of U.P

- **Citation:** (2014) 2 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-23
- **Case number:** Criminal Revision No. 263 of 2014
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-revisionist-v-state-of-u-p-42787
- **Pages:** 5

## Headnote

Cr.P.C. 401-Criminal Revision- Release of
Tractor-application rejected by learned
Magistrate-in
absence
of
complaint-no
power to pass order on release applicationrevision-against-not maintainable-applicant
has alternative remedy to approach before
the authority concern under section 207(2)
of M.V. Act itself.

Held:Para-13
In wake of the crystal clear statutory legal
position discussed by several division
benches of this Court cited above, I do not
find any good ground to take a different
view. Accordingly, I am of the considered
view that the application moved by the
petitioner for release of the vehicle seized
by Mining Officer was not maintainable
before the learned Chief Judicial Magistrate
and learned Chief Judicial Magistrate has
rightly rejected it by the impugned order.
There appears no illegality or irregularity in
the order impugned requiring interference
by this Court. The revision being devoid of
merit is liable to be dismissed and is
dismissed accordingly. However, it will be
open to the revisionist to move application
for release of his vehicle before the
appropriate authority under Section 207 (2)
of the Act and the said authority will pass
appropriate orders in accordance with law
and keeping in view the law laid down by
Hon'ble Apex Court in Sunderbhai Ambalal
Desai Vs. State of Gujrat; 2003 (46) ACC
223 (SC).

Case Law Discussed:
2011(1) ADJ 498; 2003(46) ACC 223; 1995(2)
AWC 849; [2001(1) AWC 551]; [2010(69) ACC
259]

## Text

2 All] Arvind Kumar Vs. State of U.P.
531
to by the respondent-plaintiff cannot be
re-opened.

31. In view of above discussions, all
the legal questions framed above in para 6 of
the judgment are decided in affirmative in
favour of the appellant-defendant and against
the respondent-plaintiff i.e. family partition
cannot be re-opened. It is binding on all the
family members in succession because it was
in good faith and no fraud and malice has
been alleged by the party who has claimed
otherwise. Similarly, the division of property
was as a whole and shall be binding upon
each family member irrespective of its
dimension. It will not be open to challenge
the family settlement arrived at between the
parties earlier on the ground that the portion
allocated to one party is short of his share.
Both these issues have been dealt in detail by
the coordinate Bench of this Court in Harey
Krishna Agrawal and Others v. Jairaj
Krishna (D) and Others (supra). The appeal
is, therefore, liable to be allowed.

32. The appeal is, therefore, allowed
with cost and the judgment and order
passed by the First Appellate Court dated
6.11.1987 is set-aside and the order and
decree dated 13.01.1987 passed by the
learned trial court shall remain effective.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Revision No. 263 of 2014

Arvind Kumar................ Revisionist
Versus
State of U.P.................... Opposite Party
Counsel for the Revisionist:
Sri Pradeep Kumar Singh

Counsel for the Opposite Party:
A.G.A.

Cr.P.C. 401-Criminal Revision- Release of
Tractor-application rejected by learned
Magistrate-in
absence
of
complaint-no
power to pass order on release applicationrevision-against-not maintainable-applicant
has alternative remedy to approach before
the authority concern under section 207(2)
of M.V. Act itself.

Held:Para-13
In wake of the crystal clear statutory legal
position discussed by several division
benches of this Court cited above, I do not
find any good ground to take a different
view. Accordingly, I am of the considered
view that the application moved by the
petitioner for release of the vehicle seized
by Mining Officer was not maintainable
before the learned Chief Judicial Magistrate
and learned Chief Judicial Magistrate has
rightly rejected it by the impugned order.
There appears no illegality or irregularity in
the order impugned requiring interference
by this Court. The revision being devoid of
merit is liable to be dismissed and is
dismissed accordingly. However, it will be
open to the revisionist to move application
for release of his vehicle before the
appropriate authority under Section 207 (2)
of the Act and the said authority will pass
appropriate orders in accordance with law
and keeping in view the law laid down by
Hon'ble Apex Court in Sunderbhai Ambalal
Desai Vs. State of Gujrat; 2003 (46) ACC
223 (SC).

Case Law Discussed:
2011(1) ADJ 498; 2003(46) ACC 223; 1995(2)
AWC 849; [2001(1) AWC 551]; [2010(69) ACC
259]

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The present criminal revision has
been preferred against the order dated
532 INDIAN LAW REPORTS ALLAHABAD SERIES
23.1.2014 passed by Chief Judicial
Magistrate, Chitrakoot in Miscellaneous
Case No. 31A/xii/2014 under Section
4/21 Mines and Mineral (Development
and Regulation Act, P.S. Mau, District
Chitrakoot
whereby
the
learned
Magistrate has rejected the application of
the revisionist for release of his tractor.

2. I have heard learned counsel for
the revisionist and learned A.G.A. for the
State and have carefully perused the
records.

3. The learned counsel for the
revisionist
has
submitted
that
the
revisionist is registered owner of the
tractor in question. The vehicle in
question was duly insured by Oriental
Insurance Company. His tractor was
seized by the Mining Officer, Chitrakoot
on 6.1.2014 on the allegation that it was
found carrying illegal sand without proper
transportation pass (MM 11). The learned
counsel for the revisionist has argued that
the sand was not illegal but it was
purchased by the revisionist from a
contractor holding valid license to store
the sand. The contractor has issued Form
(MM 11) to the revisionist but his tractor,
was seized in a malafide manner by the
Mining
Officer,
Chitrakoot.
The
revisionist moved an application before
the Chief Judicial Magistrate, Chitrakoot
for release of his tractor but the learned
Magistrate dismissed his application on
the ground that without filing of a
complaint by the Mining Officer, he has
no jurisdiction to pass an order of the
release of vehicle especially keeping in
view the fact that the applicant has not
even deposited any compounding amount.

4. The learned counsel for the
revisionist has questioned the validity of
the aforesaid order dated 23.1.2014 by
arguing that the learned Chief Judicial
Magistrate has passed the order in a
cursory manner and has illegally rejected
the application moved by the revisionist
for release of his tractor merely on the
ground that as no complaint has been filed
in the court regarding the offence,
therefore he has no jurisdiction to take
cognizance in the matter. Learned counsel
for the revisionist has contended that the
Magistrate was fully competent and
empowered to release the vehicle even if
the complaint was not filed, in view of
Section 457 Cr.P.C. In this regard learned
counsel for the revisionist has relied upon
a judgment of this Court passed by the
Hon'ble Single Judge in case of Smt.
Sudha Kesarwani Vs. State of U.P. and
others reported in 2011(1) ADJ 498. He
has also placed reliance on the law
laiddown by the Apex Court in landmark
case of Sunderbhai Ambalal Desai Vs.
State of Gujrat; 2003 (46) ACC 223
(Supreme Court). On the aforesaid ground
it has been prayed that the impugned
order be set aside and the learned Chief
Judicial Magistrate be directed to release
the tractor alongwith trolly in favour of
the revisionist.

5. The State has filed counter
affidavit opposing the revision mainly on
the ground that the vehicle in question
was seized under Section 207 of Motor
Vehicle Act. The sand was found loaded
on the tractor but the driver had failed to
show any valid paper or permit to carry
such sand, so the vehicle was seized by
the Mining Officer, Chitrakoot. When the
revisionist moved an application for
release of the tractor before the learned
Chief Judicial Magistrate, the learned
C.J.M. called for a report from the District
Magistrate, Chitrakoot. After receiving
2 All] Arvind Kumar Vs. State of U.P.
533
such report, it was found that no
complaint has been filed in this matter.
Moreover the compounding fee has also
not been deposited by the applicant, so
learned
C.J.M.
rejected
the
release
application on the ground of lack of
jurisdiction. The learned A.G.A. has
contended that the release application has
rightly been rejected by the impugned
order. There is no illegality or irregularity
in the order. The revision being devoid of
merit, is liable to be dismissed.

6. After hearing learned counsel for
both sides and keeping in view the
relevant legal provisions I am of the
considered view that the revision is
devoid of merit and is liable to be
dismissed. The reasons are as follows :

1. Admittedly the tractor in question
was seized by the Mining Officer, Chitrakoot
because it was found loaded with sand
(Morang) and its driver was unable to show
any permit for carrying such sand. Section
207 of Motor Vehicle Act provides that "any
police officer or other person authorised in
this behalf by the State Government may, if
he has reason to believe that a motor vehicle
has been or is being used in contravention of
the provisions of Section 3 or section 4 or
section 39 or without the permit required by
sub-section (1) of section 66 ?........................,
seize and detain the vehicle, in the prescribed
manner and for this purpose take or cause to
be taken any steps he may consider proper
for the temporary safe custody of the vehicle.

7. Sub-section 2 of Section 207
provides that where a motor vehicle is
seized and detained under sub-section 2,
"the owner or person incharge of the
motor vehicle may apply to the transport
authority or any officer authorised in this
behalf by the State Government together
with the relevant documents for the
release of the vehicle and such authority
or officer may, after verification of such
documents, by order release the vehicle
subject to such conditions as the authority
or officer may deem fit to impose."

8. Now, in view of the aforesaid
legal provisions the question which arises
for consideration is whether the vehicle
seized by Mining Officer, Chitrakoot
under Section 207 of Motor Vehicle Act
could have been released by C.J.M. even
when no criminal case/complaint case
was pending before him.

9. A Division Bench of this Court in
the case of Phool Chandra Vs. Assistant
Regional Transport Officer, Banda and
others has held that where a vehicle was
seized by the Transport Authority under
Section 207 of the Act, the registered
owner or the person incharge of the
vehicle, could move application for
release of the vehicle either under Section
207 (2) of the Act before the Transport
Authority or the Officer authorized by the
State Government in this behalf or under
Section 457 of the Code but in the case of
Mazhar Ali Khan Vs. Chief Judicial
Magistrate and Others; 1995(2)AWC 849
(DB) decided by Division Bench of this
Court, it had been specifically held that
where a vehicle is sized by Transport
Authority under Section 207 of the Act,
only transport Authority or any Officer
authorized by the State Government in
this behalf has power to release the
vehicle. The relevant observation of the
court finds place in para 4 of the judgment
which is being reproduced below:

"Sub-section (2) of Section 207
provides for release of the Vehicle.
Although under sub-section (1), any
534 INDIAN LAW REPORTS ALLAHABAD SERIES
police officer or any other person
authorized in this behalf can seize and
detain the vehicle, but under sub-section
(2), only transport authority or the officer
authorized in this behalf by the State
Government has the power to release the
vehicle irrespective of the fact that the
vehicle was seized and detained by some
one else but for this purpose the owner or
the person incharge of the motor vehicle
has to apply before them. For the reasons
given above, the Regional Transport
Officer was not justified to refuse to
entertain the application for release on the
ground that it was seized by police
officer."

10. In the case of Jagat Pal Singh
VS. State of U.P. and Others [2001 (1)
AWC 551] the same view as above had
been expressed by one more Division
Bench of this Court. The relevant
observation of the court finds place in
para 4 of the judgment which is being
extracted below:

"From a perusal of Section 207 of the
Act is appears that the remedy available
to the petitioner is to apply to the
transport
authority
or
any
officer
authorized in this behalf by the State
Government
together
with
relevant
documents for the release of the vehicle in
terms of sub-section (2) of Section 207 of
the Act. We are of the view that since
statue provides power to release the
vehicle on the concerned authority under
sub-section (2) of section 207 of the Act
and the application of the writ petitioner,
the writ petitioner should act according to
the statute and take appropriate steps in
terms of section 207 (2) of the Act and
make appropriate application before the
concerned authority. We are of the further
view that it is incumbent on the part of the
parties to follow the procedure laid by the
statute and have no jurisdiction or
authority to direct release of the vehicle
through Chief Judicial Magistrate."

11. In the case of Deoraj Singh Vs.
State of U.P. [2010 (69) ACC 259], this
court relying on earlier case laws cited
therein has laid down the same principle
of law as laid down in the above cited
case. The relevant observation of the
Hon'ble Court finds place in para 10 of
the judgment which is being extracted
below:

"From a perusal of the Section 207 (2)
of the Motor Vehicles Act, 1988 the remedy
available to the applicant is to apply to the
transport authority or to officer authorized in
this behalf by the State Government together
with relevant documents for the release of
the vehicle. This issue has been considered
by the Division Bench of this Court on case
of Jagat Pal Singh V State of U.P. And
others in Criminal Misc. Writ Petition No.
5528 of 2000 (M/B) as reported in 2001 (1)
AWC 551."

12. The judgment in the case of Smt.
Sudha Kesarwani relied upon by the
revisionist is of no help to him as the
judgment in this case has been passed by
a learned Single Judge whereas various
division benches in judgments cited
above, have clearly expressed the view
that the Chief Judicial Magistrate has no
jurisdiction to release the vehicle seized
under Section 207 of the Motor Vehicle
Act.

13. In wake of the crystal clear
statutory legal position discussed by several
division benches of this Court cited above, I
do not find any good ground to take a
different view. Accordingly, I am of the
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors.
535
considered view that the application moved
by the petitioner for release of the vehicle
seized
by
Mining
Officer
was
not
maintainable before the learned Chief
Judicial Magistrate and learned Chief
Judicial Magistrate has rightly rejected it by
the impugned order. There appears no
illegality or irregularity in the order
impugned requiring interference by this
Court. The revision being devoid of merit is
liable to be dismissed and is dismissed
accordingly. However, it will be open to the
revisionist to move application for release of
his vehicle before the appropriate authority
under Section 207 (2) of the Act and the said
authority will pass appropriate orders in
accordance with law and keeping in view the
law laid down by Hon'ble Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat; 2003 (46) ACC 223 (SC).
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHWANI KUMAR SINGH, J.

Special Appeal No. 570 of 2012

Pawan Kumar Misra... Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.E. Chiramber, Sri S.P. Misra

Counsel for the Respondents:
C.S.C.

U.P. Government Servant(Conducts)Rules,
1956-Section-29-Removal from service-on
account of second marriage during life time
of first wife-without divorce-amounts to
misconduct-dismissal
held
propersbsequent withdrawl of complaint by first
wife-meaningless.
Held: Para-17
In the case in hand, the appellant-petitioner
had committed an offence of bigamy after
enjoying 11 years of matrimonial life. Once
the 1956 Rules provides that second
marriage by a government servant during
the lifetime of first wife is an offence, and it
amounts to misconduct, then it is not open
for the court to take a different view than
what
has
been
considered
by
the
disciplinary authority.

Case Law discussed:
2006 (2) SCC 670; AIR 2007 SC 2742; AIR
2007 SC 2625; AIR 2008 SC 1797; 2006(2)
GLT 569.

(Delivered by Hon'ble Devi Prasad Singh ,J.)

1. Heard learned counsel for the
appellant-petitioner, Sri S.P. Mishra and
learned Standing Counsel Sri Pushkar
Baghel, appearing for respondents.

2. This is an appeal under Chapter
VIII Rule 5 of the High Court Rules, 1952
against
the
impugned
order
dated
31.7.2012 passed by Hon'ble Single Judge
in Writ Petition No.1343 (S/S) of 2004.

3. The appellant-petitioner, a police
constable, has been punished pursuant to
disciplinary proceedings, being remarried
to
another
lady
without
seeking
permission of the state government in
pursuance to U.P. Government Servants
Conduct Rules, 1956 (in short '1956
Rules'). The factum of remarriage by the
appellant-petitioner seems to be not
disputed. The appellant-petitioner also
does not dispute that he has remarried
himself in spite of the fact that his first
wife survives.

4. The appellant-petitioner was
married to one Smt. Sunita, daughter of