Allowed

P.Sekar v. The Regional Transport Officer

Madras HC20 Jan 2023WP/1345/2023

Case brief

AI extract

What is this about?

Single Judge of Madras High Court allowed a writ petition filed by a bus driver seeking the return of his driving licence seized after an accident. The court ruled that police cannot automatically seize a licence and the authority must follow due process under Section 19 before disqualification.

What did the court decide?

The first respondent is directed to return the petitioner's driving licence within one week from the date of receipt of the order copy.

P.Sekar Vs The Regional Transport Officer — Pension and Retirement Benefits | Madras HC (2023)

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Writ Petition No.1345 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 20/1/2023

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C O R A M

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THE HONOURABLE Mr.JUSTICE N. SATHISH KUMAR

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Writ Petition No.1345 of 2023

P. Sekar

... Petitioner

The Regional Transport Officer Regional Transport Office A. Kumaramangalam Village Kanayar Post Ulundurpet 606 107 Kallakurichi District.

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The Inspector of Police Thirunavalur Police Station Kallakurichi District. ... Respondents

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PRAYER : Petition filed under Article 226 of the Constitution of India

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praying for the issuance of a writ of mandamus to direct the first respondent

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to return the petitioner's Original Driving Licence bearing No.TN-5720060004354 to the petitioner forthwith.

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For Petitioner ... Ms.D.Kalaiselvi For respondents ... Mrs.R.Anitha Special Government Pleader

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O R D E R

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This writ petition has been filed to direct the first respondent to return

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the petitioner's Original Driving Licence bearing No.TN-57-20060004354 to the petitioner forthwith.

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The case of the petitioner is that he is a driver of a bus owned by the State Express Transport Corporation Ltd. The bus bearing Registration No.TN-01-AN-3454, which the petitioner was driving was involved in a road traffic accident that happened on 16/12/2022, at 12.50 a.m., in which a man died. Immediately, a First Information Report in Crime No.568 of 2022, dated 16/12/2022 was registered against the petitioner, for an offence under Sections 279 and 304 – A of the Indian Penal Code, by the second respondent Police.

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While registering the First Information, the second respondent who had already seized the Driving Licence of the petitioner handed over

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the same to the first respondent. Hence, the petitioner had submitted a

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representation, dated 23/12/2022, to return the original Driving Licence. Since the same has not been considered so far, the petitioner has come

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forward the present writ petition praying for the relief as stated therein.

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Heard the learned counsel appearing for the petitioner and

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Mrs.R.Anitha, learned Special Government Pleader for the respondents.

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The learned counsel appearing for the petitioner submitted that the

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Police has no power to seize the licence and forwarded the same to the first respondent. The first respondent cannot impound the licence until the criminal Court finds him guilty. He further contended that in many cases, this Court has held that retaining licence by the first respondent is not permissible under law without any enquiry and the Police also has no power

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to seize the licence. Mere retaining the licence by the first respondent, in fact, will have a serious consequences and will affect the drivers engaged by

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the Corporation and Government Undertakings. Therefore, seeks direction to release the licence.

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Mrs.R.Anitha, learned Special Government Pleader appearing for

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the respondents would submit that in view of sub-clause (4) to Section 206

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Writ Petition No.1345 of 2023

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of the Motor Vehicles (Amendment) Act, 2019, Police can very well seize the licence from the driver, who caused an accident. Similarly, under Section 19 (1-A) of the Motor Vehicles (Amendment) Act, 2019, first respondent, viz., Regional Transport Officer have a power to suspend or revoke the licence. Hence, submitted that when the authority has power under the statute to seize the impugned licence, the same cannot be returned at the present. Hence opposed the writ petition.

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It is not disputed that immediately after the accident, licence was seized by the second respondent and he appears to have forwarded the same to the first respondent. It is useful to refer to the judgment of the Hon'ble Division Bench in Sethuram vs. The Licensing Authority reported in 2010 Writ L.R.100 , wherein at para 8, the Hon'ble Division Bench has held that a bare reading of Section 19(1) shows that the Licensing Authority has the power to revoke any licence or disqualify a person for a specified period from holding or obtaining a driving licence, if any of the contingencies prescribed in Clauses (a) to (h) of Sub-section (1) of Section 19 arises. Moreover, the power under Section 19(1) can be invoked only after giving an opportunity of being heard to the holder of the licence and reasons to be recorded in writing.

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Similarly in S. Murugan vs. Licensing Authority [W.A.(MD) No.176 of 2009 dated 22.06.2009, a Hon'ble Division Bench of Madurai Bench of Madras High Court, took the same view. However, directed the Respondent to return the licence, as the licence was retained both without an order in writing and without affording an opportunity of being heard. This is a clear violation of the provisions of the Statute.

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In S. K rishnan Vs. The Licensing Authority [MANU/TN/1360/2012] the Hon'ble Division Bench of Madurai Bench of Madras High Court, at para 6 held that Section 19 itself gives power to the authority to disqualify a person from holding a driving licence. When the licensing authority is satisfied after giving notice to the licensee and enumerated 10 disqualification clauses, one among them was Section 19 (1) (C) which clearly states that when the vehicle is used and a cognizable offence is made out, all that is required is the authority should satisfy itself whether the petitioner has utilized the vehicle which resulted in a cognizable offence. Admittedly, this appellant used the vehicle and caused the death of a person.

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Following the above judgments, a Single Judge of this Court has

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passed an order in K. Perumal vs. The Regional Transport Officer

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[W.P.(MD) No.9605 of 2022 dated 12.05.2022 – Madurai Bench of Madras High Court].

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In one of the Writ Petitions filed before me, i.e., in S. Baskaran vs. The Inspector of Police [W.P.No.33204 of 2022 dated 09.12.2022 – Madras High Court], this Court, has directed the authority to return the driving licence. However, in Para No.5 of the Order, this Court had directed the second respondent to await the final orders in the criminal proceedings and if the criteria as provided under Section 19(1) of the Motor Vehicles Act, 1988 is satisfied, second respondent is at liberty to initiate proceedings against the petitioner for suspension/revocation of the driving licence.

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The observation made by me, in the above Writ Petition (W.P.No.33204 of 2022) is that action under Section 19 (1) of the M.V.Act, could be initiated only after the criminal case is concluded is no longer good law, in view of the Division Bench Judgments referred above. In the Division Bench judgments cited above, the power under Section 19 of the Motor Vehicles Act, to suspend or revoke the licence by the licensing https://www.mhc.tn.gov.in/judis Page No:6/16

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authority have been elaborately dealt with. In such a view of the matter, the contention that till the criminal courts finds the driver guilty of the offence, no action could be initiated under section 19 of the Act to revoke or suspend or impound the licence by the Licensing Authority cannot be accepted.

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Learned Special Government appearing for the respondents submitted that the police can seize the licence in view of the amendment under Sections 206 and 19 of the Motor Vehicles Act. It is relevant to extract the provisions of the Motor Vehicles Act amended and inserted:

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“ 206. Power of police officer to impound document.

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(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of section 464 of the Indian Penal Code, 1860 (45 of 1860) seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document.

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(2) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it into the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub-section (3).

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(3) A police officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgment therefor and such acknowledgment shall authorise the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgment whichever is earlier:

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Provided that if any Magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been, returned to the

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holder thereof before the date specified in the acknowledgment for any reason for which the holder is not responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgment.

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(4) A police officer or other person authorised in this behalf by the State Government shall, if he has reason to believe that the driver of a motor vehicle has committed an offence under any of sections 183, 184, 185, 189, 190, 194C, 194D, or 194E, seize the driving licence held by such driver and forward it to the licensing authority for disqualification or revocation proceedings under section 19:

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Provided that the person seizing the licence shall give to the person surrendering the licence a temporary acknowledgement therefor, but such acknowledgement shall not authorise the holder to drive until the licence has been returned to him.”

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14.a. On perusal of the above provisions sub-clause (1) gives power

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to the police to seize the licence if the police has reason to believe that there

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is any mark or document relate to the vehicle is false.

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b. Similarly sub-clause (2) empowers the police, authorised by the State Government, if the police has reason to believe that the driver of motor vehicle who is charged with any offence under the Motor Vehicles Act, may abscond or otherwise, avoid the service of summons, seize any licence held by such driver and forward it to the Court concerned. The court concerned can return the licence to the concerned parties.

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c. Sub-clause (3) deals with the temporary acknowledgment by the police officer authorising the holder of driving licence to drive the vehicle until the licence returned to him.

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d. Sub-Clause (4) empowers the police officer to seize the licence if

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he has reason to believe that the driver of the motor vehicle committed an offence under any of Sections 183, 184, 185, 189, 190, 194C, 194D, or 194E of the M.V. Act,

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A careful perusal of the Sub-Clause (4) of Section 206 makes it

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such officer can seize the licence. On such seizure, acknowledgment to be given by the police authorising the holder to drive the vehicle until the licence is returned to him.

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Section 19 (1) (A) of the Motor Vehicles (Amendment) Act, 2019 makes it clear that where a licence has been forwarded to the licensing authority under sub-section (4) of Section 206 of the Motor Vehicles Act, the licensing authority, if satisfied after giving the holder of the driving licence, an opportunity of being heard, may either discharge the holder of a driving licence or, it may for detailed reasons recorded in writing, make an order disqualifying such person from holding or obtaining any licence to drive all or any class or description of vehicles specified in the licence—

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(a) for a first offence, for a period of three months;

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(b) for a second or subsequent offence, with revocation

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of the driving licence of such person.

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Therefore, before any action taken under Section 19 of the Act, an

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opportunity has to be given by the Licensing Authority. Therefore, the seizure power of the police introduced under Section 206 of the Act is only

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in certain circumstances. Only if the police officer has reason to believe that offence has committed in any of the following Sections 183, 184, 185, 189, 190, 194C, 194D, or 194E under sub-clause (4) of Section 206 of the M.V. Act, he can seize the licence and forward to the Licensing Authority. The combined reading of Clauses 1, 2, 3, and 4 of Section 206 of M.V.Act, makes it clear that only under three contingencies, the Police officer can seize the licence, particularly, when the identification mark or licence or the documents relating to the vehicle are false, those documents can be seized under sub-clause (1).

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The second contingency on which Police officer can seize the licence is if any person charged under the M.V. Act, try to abscond or avoid service of summons, licence may be seized and temporary acknowledgement can be given. Another circumstances under Sub-clause 4 of Section 206 of the Act is when the Police officer has reason to believe that the driver of a motor vehicle has committed an offence under any of the Sections 183, 184, 185, 189, 190, 194 C, 194 D, or 194 E, of the M.V.Act, the licence can be seized by the Police Officer. The power vested under Section 206 for seizure of the licence is not automatic. Only when the Police Officer records the reasons to believe that any of the circumstances as narrated in Section 206 is

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attracted, he can exercise such a power. The word “reason to believe” as

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defined under Section 26 of the Indian Penal Code reads as follows:

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“Section 26 of The Indian Penal Code

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26. “Reason to believe”.—A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise.

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The word “reason to believe” excludes mere suspicion or doubt.

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The word believe is very much stronger word than suspect and involves the necessity of showing the circumstances that a reasonable man must have felt convinced his mind, that circumstances exists to proceed under section 206 of the M.V. Act. “Reason to believe” means belief which a reasonable man will entertain on the facts before him and it contemplates an objective based on the independent care and deliberation and the same must be based on the good faith. In substance, the reason to believe means that a person must have a reason to believe if the circumstances are such that reasonable man would, by probable reasoning conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference but it sufficient such circumstances are

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creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing.

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In such a view of the matter, even to exercise power under Section 206 of the Act, the Officer exercising the power has to record reasons in writing considering the facts and circumstances of the particular case. The seizure of the licence is not automatic. Without recording reasons obtaining to the facts and circumstances of the particular case such power cannot be exercised mechanically. With regard to exercise the power under section 19 of the Act by the RTA, it is relevant to note that before exercising such an action, notice of opportunity to be given to the holder of licence. Subclause 2 of Section 19 makes it very clear that only the order under subclause 1 or Sub-clause 1-A is made, the holder of driving licence shall forthwith surrender his licence to the Licensing Authority making the order, if the driving licence is not already ordinarily surrendered.

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In such a view of the matter, this court is of the view that seizure

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of the licence to take action under Section 19 of the Act, is not mandatory. Irrespective of licence being surrendered or produced before the authorities, the action can be initiated by the authorities, under Section 19 of the Act, on

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the report submitted by the police. Therefore, this Court is of the view that merely on the basis of the FIR is registered particularly in the other IPC offences, the Police Officer cannot have power to seize the licence. If at all any action is contemplated under Section 19 of the Act, they may forward a report to the concerned RTA to take action, under Section 19 of the Act. On such report, if the licensing authority is satisfied with any of the contingencies in clauses 1(a) to (h) of Section 19 and sub-clause 1A of the Act and after giving an opportunity to the holder of the licence, may pass an order, as contemplated in Section 19 of the Act.

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Accordingly this Court hold that the seizure of the licence in the given case is not valid in the eye of law and the first respondent is directed to return the licence, within one week, from the date of receipt of copy of this order. It is well open to the first respondent to send a report to the RTA for taking appropriate action. The RTA may after providing an opportunity to the petitioner may proceed under Section 19 of the M.V. Act and to pass an order on merits.

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N. SATHISH KUMAR, J mvs.

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