# Mairaj Ahmad Khan v. State of U.P. and another

- **Citation:** (2012) 3 ILRA 1326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-05
- **Case number:** Criminal Misc. Writ Petition No. 13740 of 2012
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mairaj-ahmad-khan-v-state-of-u-p-and-another-42397
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Release
of Vehicle-offense under Section 279, 337
and 338 I.P.C.-motorcycle involved in
accident-under Section 203-B (I) of Motor
Vehicle Act-in absence of finding of either
causing death or grievous hurt-absence of
either pending claim Petition on awardimposing condition to deposit security of
Rs. 4 Lac apart from Rs. 2 Lac towards
market
value-held-highly
onerous
3 All] Mairaj Ahmad Khan V. State of U.P. and another
1327
, irrational and arbitrary-condition order
passed by Court below quashed-direction
to pass fresh order in light of observations.

Held: Para-8 and 9

A perusal of the aforesaid Rule indicates
that for invocation of sub rule (3) the
accident involving the vehicle must have
caused death or permanent disablement.
In the instant case, no finding has been
recorded
by
the
court
below
while
imposing the onerous conditions that the
accident had either caused death or
permanent disablement of the victim.
There is also no finding as to whether any
claim has been set up before, or awarded
by, any Court or Tribunal. I, therefore, do
not find any basis for imposing condition
to furnish security of Rs.4,00,000/- and
additional security of Rs.2,00,000/- when
neither the market value of the Motorcycle
has been determined nor anything has
been discussed about the claim or an
award, as the case may be. Thus, the
conditions imposed in the release order
appear to be irrational and arbitrary.
Accordingly, I'm of the view that the
matter requires to be reconsidered by the
court below.

While considering the applicability of sub
rule (3) of Rule 203-B of the Rules, the
Court must first assess whether the injury
caused by the accident resulted in death or
permanent disablement of the third party
(victim). In case it comes to the conclusion
that the accident involving the vehicle has
resulted in permanent disablement or
death of the third party, then it should
proceed to examine whether any claim has
been set up or not. If it is found that a
claim has been set up and awarded, then
the security required to be furnished under
sub rule (3) of Rule 203-B of the Rules
would not be less than the amount
awarded. However, where a claim has
neither been set up nor awarded, then, in
such a situation, discretion has to be
exercised by the Court. While exercising
such discretion it may also notionally
assess
the
compensation
payable
by
taking the aid of structured formula
provided under Section 163A of the Motor
Vehicles Act, 1988. While finally assessing
the security required to be furnished, the
Court must always take into account the
value of the vehicle involved in the
accident. Because if the security far
exceeds the value of the vehicle, no owner
would ever seek for its release and
ultimately, the vehicle would have to be
sold on expiry of six months as per sub
rule (4) of Rule 203-B. It is a matter of
common knowledge that if the vehicle lies
at the police station for six months then its
value
would
drastically
depreciate.
Further, in a situation contemplated under
sub rule (3) of Rule 203-B of the Rules
while seeking for security the Court must
ensure that the security furnished is
worthy of enforcement, when required,
and not illusory.

## Text

1326 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the next 17 years. This fact is however, not
indicated in the impugned order and
therefore, this additional fact can not be
taken into consideration.

4. Rule 4 of the Rules of 2001 is
relevant for the purpose of deciding the
present issue and have formulated the said
rule, which has been extracted hereunder:

4. (1) Any person who-

(a) was directly appointed on daily
wage basis on a Group-D post in the
government service before June, 29,1991
and is continuing in service as such on the
date of commencement of these rules; and

(b) possessed requisite qualification
prescribed for regular appointment for that
post at the time of such appointment on
daily wage basis under the relevant service
rules, shall be considered for regular
appointment in permanent or temporary
vacancy as may be available in Group-D
post on the date of commencement of these
rules on the basis of his record and
suitability before any regular appointment
is made in such vacancy in accordance with
the relevant service rules or order.

5. From a perusal of the aforesaid Rule,
the only requirement for consideration for
regularisation is that a person appointed on
daily wage basis should be in Government
Service on or before 29th June, 1991 and is
still continuing in service on the date of the
commencement of these Rules. The Rules
have come into force from 21st September,
2001. The petitioner's case for regularisation
has been rejected on the ground that he had
not been worked for 240 days in the year
1981. Rule-4 does not prescribe that a daily
wage person should work for 240 days in a
calender year. The Rule only prescribes that
he should have worked on daily wage basis
on or before 29th June, 1991 and is
continuing in service on the date of
commencement of these Rules of 2001.

6. In the light of the aforesaid, the
rejection of the petitioner's case is patently
erroneous and can not be sustained.

7. The impugned order is quashed.

8. Writ petition is allowed. The matter
is remitted again to the Authority to reconsider the matter and pass a fresh order in
the light of observations made above within
three months from the date of production of
a certified copy of the order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Misc. Writ Petition No. 13740 of
2012

Mairaj Ahmad Khan

...Petitioner
Versus
State of U.P. and anr. ...Respondents

Counsel for the Petitioner:
Sri Satyendra Pratap Singh-I

Counsel for the Respondents:
A.G.A.

Constitution of India, Article 226-Release
of Vehicle-offense under Section 279, 337
and 338 I.P.C.-motorcycle involved in
accident-under Section 203-B (I) of Motor
Vehicle Act-in absence of finding of either
causing death or grievous hurt-absence of
either pending claim Petition on awardimposing condition to deposit security of
Rs. 4 Lac apart from Rs. 2 Lac towards
market
value-held-highly
onerous
3 All] Mairaj Ahmad Khan V. State of U.P. and another
1327
, irrational and arbitrary-condition order
passed by Court below quashed-direction
to pass fresh order in light of observations.

Held: Para-8 and 9

A perusal of the aforesaid Rule indicates
that for invocation of sub rule (3) the
accident involving the vehicle must have
caused death or permanent disablement.
In the instant case, no finding has been
recorded
by
the
court
below
while
imposing the onerous conditions that the
accident had either caused death or
permanent disablement of the victim.
There is also no finding as to whether any
claim has been set up before, or awarded
by, any Court or Tribunal. I, therefore, do
not find any basis for imposing condition
to furnish security of Rs.4,00,000/- and
additional security of Rs.2,00,000/- when
neither the market value of the Motorcycle
has been determined nor anything has
been discussed about the claim or an
award, as the case may be. Thus, the
conditions imposed in the release order
appear to be irrational and arbitrary.
Accordingly, I'm of the view that the
matter requires to be reconsidered by the
court below.

While considering the applicability of sub
rule (3) of Rule 203-B of the Rules, the
Court must first assess whether the injury
caused by the accident resulted in death or
permanent disablement of the third party
(victim). In case it comes to the conclusion
that the accident involving the vehicle has
resulted in permanent disablement or
death of the third party, then it should
proceed to examine whether any claim has
been set up or not. If it is found that a
claim has been set up and awarded, then
the security required to be furnished under
sub rule (3) of Rule 203-B of the Rules
would not be less than the amount
awarded. However, where a claim has
neither been set up nor awarded, then, in
such a situation, discretion has to be
exercised by the Court. While exercising
such discretion it may also notionally
assess
the
compensation
payable
by
taking the aid of structured formula
provided under Section 163A of the Motor
Vehicles Act, 1988. While finally assessing
the security required to be furnished, the
Court must always take into account the
value of the vehicle involved in the
accident. Because if the security far
exceeds the value of the vehicle, no owner
would ever seek for its release and
ultimately, the vehicle would have to be
sold on expiry of six months as per sub
rule (4) of Rule 203-B. It is a matter of
common knowledge that if the vehicle lies
at the police station for six months then its
value
would
drastically
depreciate.
Further, in a situation contemplated under
sub rule (3) of Rule 203-B of the Rules
while seeking for security the Court must
ensure that the security furnished is
worthy of enforcement, when required,
and not illusory.

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State.

2. By order dated 18.9.2012 ten days
time was allowed to the learned A.G.A. to
seek instructions or to file counter affidavit.
No counter affidavit could be filed.
However, considering that there is no
factual controversy involved in this petition,
with the consent of the learned counsel for
the parties, the petition is being finally
disposed off at the admission stage itself.

3. The petitioner aggrieved by few
onerous conditions put by the Chief Judicial
Magistrate, Pilibhit in his vehicle release
order dated 04.08.2012 passed in Case
Crime No.458 of 2012, under sections 279,
337 and 338 IPC, P.S. Kotwali, district
Pilibhit, has filed this writ petition. The
conditions were also affirmed by the
revisional court vide order dated 16.8.2012
passed by the Sessions Judge, Pilibhit in
Criminal Revision No.166 of 2012.
1328 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

4. By the order dated 04.08.2012 the
Hero Honda Splendor Pro Motorcycle with
registration No. U.P.26 L-1077 was ordered
to be released in favour of the petitioner,
who is the registered owner thereof, on
certain conditions, apart from others, that he
would
submit
personal
bond
of
Rs.4,00,000/- together with two sureties of
the like amount and shall further deposit
security of Rs. 2,00,000/- in compliance of
sub rule (3) of Rule 203-B of the UP Motor
Vehicle Rules, 1998 (hereinafter referred to
as Rules) inasmuch as the vehicle was
involved in an accident and was not validly
insured for third party risks, on the date of
the accident.

5. The contention of the learned
counsel for the petitioner is that the
aforesaid conditions, as imposed, for release
of the Motorcycle are onerous and arbitrary
and not warranted in the facts and
circumstances of the case. It has been
contended that sub rule (3) of Rule 203-B of
the Rules was not even applicable as it
applies to a case where death or permanent
disablement is caused on account of the
accident. It has further been submitted that
no finding has been recorded by the court
below that a claim has been set up before, or
awarded by, any court or tribunal,
accordingly, imposition of such onerous
condition would not only render the release
order nugatory but would also deprive the
petitioner of his statutory right to seek for
release of the vehicle, pending inquiry or
trial.

6. Per contra, learned A.G.A.
submitted that the conditions imposed by
the court below were in accordance with
sub-rule (3) of Rule 203-B of the UP Motor
Vehicle Rules, 1998, as incorporated vide
UP Motor Vehicles (Eleventh Amendment)
Rules, 2011, therefore, the conditions are
legally justified. It has also been contended
that the accident involving the motor cycle
had caused fracture to the victim, apart from
other injuries, therefore, to secure his claim,
the conditions cannot be said to be
unjustified.

7. I have perused the orders impugned
as also the record. A perusal of the order
dated 04.08.2012, which has been affirmed
by the revisional court, goes to show that
the aforesaid conditions were imposed by
the court below by placing reliance on sub
rule (3) of Rule 203-B of the U.P. Motor
Vehicles Rules, 1998, as inserted by U.P.
Motor Vehicles (Eleventh Amendment)
Rules, 2011. It would be useful to reproduce
the Rule 203-B, which reads as under:-

"203-B. Prohibition against release
of vehicle.-(1) No vehicle, involved in any
accident, shall be released by investigating
Police Officer or any Police Officer
superior to him unless a release order is
passed, by the court having jurisdiction.

(2) No vehicle, involved in any
accident shall be released by the Judicial
Magistrate, having jurisdiction, unless the
compliance of sub-rules (1) to (3) of Rule
203-A is ensured from the investigating
Police Officer and duly attested copies of
Registration
Certificate,
Insurance
Certificate,
Route
Permit,
Fitness
Certificate of vehicle as the case may be
and driving license of the driver who was
driving at the time of accident, are filed by
the applicant.

(3) No court shall release a vehicle
involved in accident causing death or
permanent disability when such vehicle is
not covered by Policy of Insurance against
third party risks unless the owner/registered
owner of the vehicle furnished sufficient
3 All] Mairaj Ahmad Khan V. State of U.P. and another
1329
security to the satisfaction of the court to
pay compensation that may be awarded in a
claim case arising out of such accident.

(4) Where the vehicle is not covered by
a policy of insurance against third party
risks, or when the owner/registered owner
of the vehicle has failed to furnish sufficient
security under sub-rule (3), or the policy of
insurance produced by owner is found
fake/forged, the vehicle shall be sold in
public auction by the Judicial Magistrate,
having jurisdiction, on expiry of six months
of the vehicle being seized by the
investigating Police Officer and proceeds
thereof, shall be deposited with the Claims
Tribunal, having jurisdiction over the area
in question, for the purpose of satisfying the
compensation to be awarded in claim case."

8. A perusal of the aforesaid Rule
indicates that for invocation of sub rule (3)
the accident involving the vehicle must
have
caused
death
or
permanent
disablement. In the instant case, no finding
has been recorded by the court below while
imposing the onerous conditions that the
accident had either caused death or
permanent disablement of the victim. There
is also no finding as to whether any claim
has been set up before, or awarded by, any
Court or Tribunal. I, therefore, do not find
any basis for imposing condition to furnish
security of Rs.4,00,000/- and additional
security of Rs.2,00,000/- when neither the
market value of the Motorcycle has been
determined nor anything has been discussed
about the claim or an award, as the case
may be. Thus, the conditions imposed in the
release order appear to be irrational and
arbitrary. Accordingly, I'm of the view that
the matter requires to be reconsidered by the
court below.

9. While considering the applicability
of sub rule (3) of Rule 203-B of the Rules,
the Court must first assess whether the
injury caused by the accident resulted in
death or permanent disablement of the third
party (victim). In case it comes to the
conclusion that the accident involving the
vehicle
has
resulted
in
permanent
disablement or death of the third party, then
it should proceed to examine whether any
claim has been set up or not. If it is found
that a claim has been set up and awarded,
then the security required to be furnished
under sub rule (3) of Rule 203-B of the
Rules would not be less than the amount
awarded. However, where a claim has
neither been set up nor awarded, then, in
such a situation, discretion has to be
exercised by the Court. While exercising
such discretion it may also notionally assess
the compensation payable by taking the aid
of structured formula provided under
Section 163A of the Motor Vehicles Act,
1988. While finally assessing the security
required to be furnished, the Court must
always take into account the value of the
vehicle involved in the accident. Because if
the security far exceeds the value of the
vehicle, no owner would ever seek for its
release and ultimately, the vehicle would
have to be sold on expiry of six months as
per sub rule (4) of Rule 203-B. It is a matter
of common knowledge that if the vehicle
lies at the police station for six months then
its value would drastically depreciate.
Further, in a situation contemplated under
sub rule (3) of Rule 203-B of the Rules
while seeking for security the Court must
ensure that the security furnished is worthy
of enforcement, when required, and not
illusory.

10. For the reasons aforesaid, the
order dated 04.08.2012 passed by the Chief
Judicial Magistrate, Pilibhit and the order
1330 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
dated 16.08.2012 passed by the Sessions
Judge, Pilibhit are hereby quashed, the
learned Magistrate concerned is directed to
pass a fresh release order, in accordance
with law, after taking into consideration the
observations made in this order. It will be
open to the learned Magistrate to give
opportunity of hearing to the victim of the
accident before passing the order. It is
expected that the entire exercise shall be
completed, preferably, within 15 days from
the date of filing of certified copy of this
order.

11. With the aforesaid directions, the
writ petition stands disposed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Application U/S 482 No. - 22517 Of 2012

Manoj Rana

 ...Applicant
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vivek Kumar Singh
Sri Ajay Kumar Singh

Counsel for the Respondents:
Govt.Advocate

Code of Criminal Procedure-Section 482cognizance taken by Magistrate on charge
sheet-offence under Section 323, 504, 506
I.P.C.-Revisional Court set-a-side the order
placing reliance upon Division Bench
judgment-the offence under section 506
being Non-cognizable-can be tried as
complaint case-held-ignoring Full Bench
judgment of Mata Sewak Upadhyaycognizable offence took place-revisional
Court
committed
great
illegality-order
taking cognizance by Magistrate restored.

Held: Para-7 and 8

The decision of Mata Sewak Upadhyay
(supra) still holds good and has not been
overruled nor anything has been argued in
this respect by the learned A.G.A. It
appears that at the time of hearing of the
case of Virendra Singh (supra) the decision
of Mata Sewak Upadhyay (supra) was not
brought to the notice of the Hon'ble
Division Bench. In view of the decision of
Full Bench on the same subject, the
decision of Division Bench cannot be given
effect to.

In view of the foregoing discussions it can
safely be said that the offence under
Section 506 I.P.C. is not non-cognizable,
hence the impugned order passed by the
lower revisional court cannot be sustained
in the eye of law. The provisions of Section
2(d) of Cr.P.C. do not apply in the present
case. The submission of leaned counsel of
the applicant in this regard finds force. The
impugned order passed by the lower
revisional court is set aside and the order
of the Magistrate dated 1.4.2010 is hereby
restored. Accordingly, the matter is sent
back to the Magistrate, who may proceed
in the case in accordance with law.
Case Law discussed:
[2002 (45) ACC 609 Alld.]; 1995 JIC 1168 (All)
(FB)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Vivek Kumar Singh,
learned counsel for the applicant, learned
AGA for the State and perused the record.

2. As the matter involves a pure
question of law, is squarely covered by a
Full Bench Decision of this Court, hence,
no notice is required to be given to the
opposite party nos.2 to 5 of the application
and the matter is disposed of after hearing
the learned AGA on behalf of the State.