# Faiyaz v. The State of U.P

- **Citation:** (2010) 3 ILRA 1180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-18
- **Bench:** Raj Mani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faiyaz-v-the-state-of-u-p-41743
- **Pages:** 6

## Headnote

Code-Section
207(2),
457-release
applicationvehicle ceased by RTA-rejected by
CJM-held-perfectly justified-call for no
interference-liberty
to
approach
before
the
Assistant
Transport
Authority
or
any
other
officer
authorised
by
State
Govt.
under
section
207(2)-who
will
pass
appropriate order in accordance with
law.

Held: Para 15

Considering the law laid down by this
Court in the above cited case, I do not
find any ground to take a different
view other than the view taken by this
court in the above cited cases. I am of
the view that the application moved
by the petitioner for release of the
3 All] Faiyaz V. The State of U.P.
1181
vehicle which was seized by the
Assistant Transport Officer was not
maintainable before the learned Chief
Judicial Magistrate, which has rightly
been rejected by him.
Case law discussed:
[(1978) 2 Supreme Court Cases 491], [1995
(2) AWC 849 (DB)],[2006 (9) ADJ 655 (All)
(DB)],[2010 (69) ACC 259]

## Text

1180 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Assistant (Cash & Accounts) on 01.08.1999
in the Dhab Wasti Ram, Amritsar branch
passed away. The respondent, widow of Sri
Sukhbir
Inder
Singh
applied
for
compassionate appointment in the appellant
Bank on 05.02.2000 under the scheme
which was formulated in 2005. The High
Court also erred in deciding the matter in
favour of the respondent applying the
scheme formulated on 04.08.2005, when
her application was made in 2000. A
dispute arising in 2000 cannot be decided
on the basis of a scheme that came into
place much after the dispute arose, in the
present matter in 2005. Therefore, the claim
of the respondent that the income of the
family of deceased is Rs.5855/- only, which
is less than 40% of the salary last drawn by
Late Shri.
Sukhbir
Inder Singh,
in
contradiction to the 2005 scheme does not
hold water."

6. The ratio of the aforesaid decision
is that the circular, which was in existence at
the time of the moving of the application
has to be taken into consideration. On facts,
it is admitted between the parties that the
application of the petitioner was moved on
31st May, 2005. This was obviously prior to
the issuance of the circulars dated 4th
October, 2005 and 2nd February, 2006.
Apart from this, the circulars aforesaid do
not in any way wipe out the effect and the
rights that had accrued in favour of the
petitioner prior to the issuance of the said
circulars. This is evident from a bare perusal
of the same and as per the clauses contained
in the subsequent circular dated 2nd
February, 2006. Accordingly, the action of
the respondents in denying compassionate
appointment to the petitioner is contrary to
the
position
of
law
as
discussed
hereinabove.

7. The orders dated 30th June, 2006
and 12th October, 2006 are quashed. The
writ petition is allowed.

8. The respondent-Bank is directed to
forthwith consider the claim of the
petitioner for compassionate appointment
and issue necessary orders within a period
of six weeks from the date of presentation
of a certified copy of this order.
---------
ORIGINAL JURISDICTION
CRIMINAL.SIDE
DATED: 18.11.2010 LUCKNOW

BEFORE
THE HON'BLE RAJ MANI CHAUHAN, J.

Case: - U/S 482/378/407 No. 4478 of 2010

Faiyaz

 ...Petitioner
Versus
The State Of U.P
 ...Respondent

Counsel for the Petitioner:
Sri Girish Kumar Pandey

Counsel for the Respondent:
G.A.

Criminal
Procedure
Code-Section
207(2),
457-release
applicationvehicle ceased by RTA-rejected by
CJM-held-perfectly justified-call for no
interference-liberty
to
approach
before
the
Assistant
Transport
Authority
or
any
other
officer
authorised
by
State
Govt.
under
section
207(2)-who
will
pass
appropriate order in accordance with
law.

Held: Para 15

Considering the law laid down by this
Court in the above cited case, I do not
find any ground to take a different
view other than the view taken by this
court in the above cited cases. I am of
the view that the application moved
by the petitioner for release of the
3 All] Faiyaz V. The State of U.P.
1181
vehicle which was seized by the
Assistant Transport Officer was not
maintainable before the learned Chief
Judicial Magistrate, which has rightly
been rejected by him.
Case law discussed:
[(1978) 2 Supreme Court Cases 491], [1995
(2) AWC 849 (DB)],[2006 (9) ADJ 655 (All)
(DB)],[2010 (69) ACC 259]

(Delivered by Hon'ble R.M. Chauhan, J.)

1. Heard Sri Girish Kumar Pandey,
learned counsel for the petitioner and Sri
Rajendra
Kumar
Dwivedi,
learned
Additional Government Advocate for the
State as well as perused the documents
available on record.

2. This petition under Section 482
of the Code of Criminal Procedure
(hereinafter referred to as the 'Code') has
been filed by the petitioner for quashing
the impugned order dated 18.10.2010
passed by the learned Chief Judicial
Magistrate, Ambedkar Nagar in Misc.
Case No. 1511/2010, under Section 207
of
the
Motor
Vehicle
Act,
1988
(hereinafter referred to as the 'Act')
whereby he has rejected the application
moved by the petitioner to release his
vehicle
seized
by
the
A.R.T.O.,
Ambedkar Nagar under Section 207 of
the Act.

3. The only question involved for
consideration
before
this
Court
is
whether the vehicle under release seized
by
Assistant
Transport
Officer,
Ambedkar Nagar under Section 207 of
the Act can be released by the Chief
Judicial
Magistrate,
which
can
be
decided at this stage. Therefore, the
petition is being decided at this stage.

4. From a perusal of the record, it
appears that the petitioner moved an
application before the learned Chief
Judicial Magistrate, Ambedkar Nagar
under Section 457 of the Code for release
of his vehicle which was seized by
Assistant Transport Officer, Ambedkar
Nagar under Section 207 of the Act. The
learned Chief Judicial Magistrate on the
application of the applicant called a
report from the A.R.T.O., Ambedkar
Nagar but he neither submitted his report
nor any challan. The learned Chief
Judicial Magistrate, therefore, did not
think it proper to release the vehicle in
favour of the applicant. He, therefore, by
the impugned order dated 18.10.2010
rejected the application of the applicant.
The petitioner being aggrieved by the
impugned order passed by the learned
Chief Judicial Magistrate, Ambedkar
Nagar has filed the present petition under
Section 482 of the Code.

5. The learned counsel for the
petitioner submits that Section 457 of the
Code lays down the provision for
releasing the property seized by the
police. The petitioner was the registered
owner of the vehicle under release. He,
therefore, moved an application before
the learned Chief Judicial Magistrate for
release of his vehicle. The learned Chief
Judicial Magistrate without assigning
any reason has rejected his application
by the impugned order which is bad in
the eye of law.Since the petitioner is
registered
owner
of
the
vehicle,
therefore, the same be ordered to be
released in his favour.

6.

Learned
counsel
for
the
petitioner in support of his argument has
placed reliance on the cases Phool
Chandra
Vs.
Assistant
Regional
Transport Oficer (A/s) Banda and Ors.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
decided by this court in Civil Misc. Writ
Petition No. 30978 of 1996 and Ram
Prakash Sharma Vs. State of Haryana
reported in [(1978) 2 Supreme Court
Cases 491] decided by the Hon'ble Apex
Court.

7. Sri R.K. Dwivedi, learned A.G.A.
opposed the petition and supported the
impugned order passed by the learned
Chief Judicial Magistrate, Ambedkar
Nagar.

8. Sri Dwivedi submits that Section
207 (2) of the Act specifically provides
that when any vehicle is seized under
under Sub Section (1) of Section 207 of
the Act by the ARTO or RTO, the
registered owner or person in charge of
the motor vehicle may apply to the
transport
authority
or
any
officer
authorized in this behalf by the State
Government under Section 207 (2) of the
Act. He cannot move application for
release of the vehicle before the Judicial
Magistrate or Chief Judicial Magistrate.
Sri Dwivedi has argued that in catena of
judgments, it has been held by the
Division Bench as well as Single Judge
of this Court that the vehicle seized by
the ARTO or RTO under Section 207 of
the Act may be released only by the
Transport Authority or any Officer
authorized by the State Government in
this behalf. The impugned order passed
by the learned Chief Judicial Magistrate,
Ambedkar Nagar is, therefore, perfectly
right which does not call for any
interference. Sri Dwivedi in support of
his argument has placed reliance on the
cases Mazhar Ali Khan Vs. Chief
Judicial Magistrate and Others reported
in [1995 (2) AWC 849 (DB)], Gyan
Prakash Mishra Vs. Asstt. Regional
Transport
Officer-II
(Enforcement)
Allahabad and Others reported in [2006
(9) ADJ 655 (All) (DB)], Jagat Pal
Singh Vs. State of U.P. and Others
reported in [2001 (1) AWC 551] and
Deoraj Singh Vs. State of U.P. reported
in [2010 (69) ACC 259] decide by the
this Court.

9.

I
have
considered
the
submissions advanced by learned counsel
for the petitioner and learned A.G.A as
well as gone through the case laws cited
by the learned counsel for the parties.

10. Section 207of the Act provides
for seizure of vehicle in contravention of
certain provisions under the Act as well
as the provision for release of such
vehicle which is being extracted below:

"207. Power to detain vehicles used
without
certificate
of
registration
permit, etc.

(1) Any police officer or other
person authorized 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 or in
contravention or any condition of such
permit relating to the route on which or
the area in which or the purpose for
which the vehicle may be used, 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:

Provided that where any such officer
or person has reason to believe that a
motor vehicle has been or is being used
3 All] Faiyaz V. The State of U.P.
1183
in contravention of section 3 or section 4
or without the permit required by subsection (1) of section 66 he may, instead
of
seizing
the
vehicle,
seize
the
certificate of registration of the vehicle
and shall issue an acknowledgment in
respect thereof.

(2) Where a motor vehicle has been
seized and detained under sub-section
(1), 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."

11. In case of Ram Prakash
Sharma Vs. State of Haryana (supra)
relied upon by learned counsel for the
petitioner, the matter related for release
of currency notes which were seized by
the police in connection with the offence
registered by the police against the third
party accused under the Code while this
case relates to release of vehicle seized
by the Assistant Transport Officer under
Section 207 of the Act where sub section
(2) of Section 207 of the Act provides
specific provision for release of vehicle.
The facts before the Hon'ble Apex Court
in the above cited case were different
from the facts of the present case,
therefore, the law laid down by Hon'ble
Apex Court in the above cited case will
have no application0.79" to the facts of
the present case.

12. In the case of Phool Chandra
Vs. Assistant Regional Transport Oficer
(A/s) Banda and Ors. the Division
Bench of this Court had 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 (supra) 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
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."
1184 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

13. In the case of Jagat Pal Singh
VS. State of U.P. and Others (supra) the
same view as above had been expressed
by the 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 with all respect to the other
Divisions Bench orders which have been
passed from time to time which are not in
the form of judgment and in fact no ratio
has been laid down therein. It is well
settled that mere order will not have
binding unless a ratio has been laid
down."

14. In the case of Deoraj Singh Vs.
State of U.P. (supra), the 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 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."

15. Considering the law laid down
by this Court in the above cited case, I do
not find any ground to take a different
view other than the view taken by this
court in the above cited cases. I am of the
view that the application moved by the
petitioner for release of the vehicle
which was seized by the Assistant
Transport Officer was not maintainable
before
the
learned
Chief
Judicial
Magistrate, which has rightly been
rejected by him.

16. In view of the discussions made
hereinabove, the petition stands disposed
of finally with the observation that it will
be open to the petitioner 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.
---------
3 All] Khoob Chand V. State of U.P. and others
1185
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2010

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Appeal No. 4699 of 2010

Khoob Chand

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Appellant:
Sri Atul Srivastava

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

Code of Criminal Procedure Code Section
372-appeal order of acquittal passed by
C.J.M.-maintainable before the Session
Judge-not
before
High
Court-liberty
granted to approach before competent
court.

Held: Para 4

The proviso confers the right to victim to
prefer the appeal against any order
passed by the court acquitting the
accused or convicting for lesser offence
for imposing inadequate compensation
and such appeal shall lie to the Court to
which an appeal ordinarily lies against
he order of conviction of such court. In
present case the order of acquittal has
been passed by the court of learned IIIA.C.J.M. Gautambudh Nagar, if the order
of conviction is passed by such court, its
appeal ordinarily lies in the court of
sessions. The proviso of section 372
Cr.P.C. does not permit to prefer the
appeal before this court by bye passing
the Court of Sessions. The appeal against
the order of the acquittal passed by
learned A.C.J.M.-III, Gautambudh Nagar
shall lie in the court of sessions at
Gautambudh Nagar. This appeal does not
lie to this court, therefore this appeal is
not maintainable.
(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri Atul Srivastava, learned
counsel for the appellant and learned A.G.A.
for the State of U.P.

2. This appeal has been preferred under
the proviso of section 372 Cr.P.C. against the
judgement and order dated 22.5.2010 passed
by the learned A.C.J.M.-III, Gautam Budh
Nagar in Criminal Case No. 955 of 2010 by
which the O.P. No. 2 to 9 have been
acquitted for the offence punishable under
section 147, 452, 323, 324 and 325 IPC.

3. This appeal has been preferred by
the appellant Khoob Chand who had lodged
the FIR of the present case at P.S. Dadari on
28.1.1986 at 12.45 P.M. in case crime No.
30-A of 1986 under the proviso of section
372 Cr.P.C. It has been inserted by the
Cr.P.C. (Amendment) Act (2008) (Act No. 5
of 2009). The proviso of section 372 Cr.P.C.
reads as under:

"Provided that the victim shall have a
right to prefer an appeal against any order
passed by the Court acquitting the accused
or convicting for a lesser offence or imposing
inadequate compensation, and such appeal
shall lies to the Court to which an appeal
ordinarily lies against the order of conviction
of such Court."

4. The proviso confers the right to
victim to prefer the appeal against any order
passed by the court acquitting the accused or
convicting for lesser offence for imposing
inadequate compensation and such appeal
shall lie to the Court to which an appeal
ordinarily lies against he order of conviction
of such court. In present case the order of
acquittal has been passed by the court of
learned III-A.C.J.M. Gautambudh Nagar, if
the order of conviction is passed by such