Allowed

P.Dhanasekaran v. The Inspector of Police

Madras HC2 Feb 2023WP/3061/2023

Case brief

AI extract

What is this about?

Processed Writ Petitions challenging the seizure and retention of drivers' licenses following accidents. The Court held that police seizure of licenses is not automatic for IPC offenses like rash/negligent driving and must strictly comply with specific contingencies under Section 206 of the Motor Vehicles Act, requiring a recorded reason to believe specific offenses were committed. Directs return

What did the court decide?

Directing the second respondent (Licensing Authority) to return the original driving licenses to the respective petitioners within one week from the date of receipt of the copy of this order.

P.Dhanasekaran Vs The Inspector of Police — Pension and Retirement Benefits | Madras HC (2023)

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W.P.No.3061 & 3066 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 02.02.2023

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CORAM

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THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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W.P.Nos.3061 & 3066 of 2023

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P.Dhanasekaran 2. S.Babu

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.. Petitioners in both WPs

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Versus

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The Inspector of Police Oragadam Police Station Kancheepuram District.

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The Licensing Authority cum Regional Transport Officer, Sriperumbudur, Kancheepuram District ...Respondents in W.P.No.3061 of 2023 1. The Inspector of Police T-12, Poonamallee Police Station Chennai - 56

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The Licensing Authority cum Regional Transport Officer Poonamallee Chennai – 71 ...Respondents in W.P.No.3066 of 2023

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Common Prayer: Writ Petitions filed under Section 226 of the Constitution of India to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 2^nd Respondent in both petitions to return the original driving licences

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https://www.mhc.tn.gov.in/judis

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W.P.No.3061 & 3066 of 2023

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(DL.No.TN21 19870000537) and (DL.No.TN01 198400008377) to the respective petitioners forthwith.

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For Petitioners : Mr. K. Hariharan(in both WPs)

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For Respondents : Mrs.R.Anitha (in both WPs) Special Government Pleader

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COMMON ORDER

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These Writ Petitions have been filed seeking to direct the 2^nd Respondent in

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both petitions to return the original driving licences (DL.No.TN21 19870000537) and (DL.No.TN01 198400008377) to the respective petitioners forthwith.

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W.P.No.3061 of 2023:

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It is the case of the Writ Petitioner that he is a Driver of Tamilnadu State Transport Corporation of Villupuram. On 14.01.2023, while he was driving the bus bearing registration No.TN-32-N-4194 met with an accident due to which a pedestrian died. Pursuant to the accident the, 1^st Respondent registered a case against the petitioner in Cr.No.19 of 2023 under Sections 279 & 304-A IPC and forwarded the FIR to the Judcial Magistrate, Sriperumbudur.

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The first respondent while registering the FIR, collected the original

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driving licence of the petitioner, retained the same and on 14.01.2023 sent it to the

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https://www.mhc.tn.gov.in/judis

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2^nd Respondent and recommended to cancel the licence. The 2^nd Respondent has not taken any penal action against his driving licence since the criminal case against the petitioner is pending investigation. The petitioner has not convicted by the criminal court for rash and negligence driving. Therefore, it is his contention that unless the criminal court convicts him the transport authorities cannot suspend or revoke the driving licence. The Petitioner has sent a representation to the 2^nd Respondent on 18.01.2023; however, licence has not been returned to him. Hence he filed this writ petition.

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W.P.No.3066 of 2023:

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It is the case of the Writ Petitioner that he is a Driver of Metropolitan Transport Corporation, Chennai. On 04.01.2023, while he was driving the bus bearing registration No.TN-01-AN-3595 met with an accident due to which a motor cycle rider died. Pursuant to the accident the, 1^st Respondent registered a case against the petitioner in Cr.No.09 of 2023 under Sections 279 & 304-A IPC and forwarded the FIR to the Judcial Magistrate, Poonamallee.

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The first respondent while registering the FIR, collected the original

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driving licence of the petitioner, retained the same and on 09.01.2023 sent it to the 2^nd Respondent and recommended to cancel the licence. The 2^nd Respondent has not taken any penal action against his driving licence since the criminal case against the petitioner is pending investigation. The petitioner has not convicted by the criminal court for rash and negligence driving. Therefore, it is his contention that unless the criminal court convicts him the transport authorities cannot suspend or revoke the driving licence. The Petitioner has sent a representation to the 2^nd Respondent on 10.01.2023; however, licence has not been returned to him. Hence he filed this writ petition.

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6.Heard the learned Special Government Pleader Mrs.R.Anitha appearing for the Respondents in both the writ petitions.

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Mr.K. Hariharan, learned Additional counsel appearing for the Petitioners

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in both the writ petitions would submit that the police have no power to seize the licences and forward the same to the 2^nd Respondent. The 2^nd Respondent cannot impound the licences until the criminal court finds him guilty. Therefore, it is his contention that in many cases this Court has held that retaining licence by the 2^nd

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Respondent is not permissible under law without any enquiry. The police also has no power to seize the licences. In such a view of the matter, mere retaining the licences by the second respondent, in fact will have a serious consequences and will affect the drivers engaged by the Corporation and Government Undertakings. Therefore, seeks direction of the court to release the licences.

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Mrs.R.Anitha, learned Special Government Pleader appearing for the respondents would submit that in view of the sub-clause (4) to Section 206 of the Motor Vehicles (Amendment) Act, 2019, the police can very well seize the licence from the driver who caused an accident. Similarly under Section 19(1A) of the Motor Vehicles (Amendment) Act, 2019, 2^nd Respondent viz., Regional Transport Authority i.e., the R.T.O., have a power to suspend or revoke the licence. Hence, submitted that when the authority has power under the statute to seize the subject licences, the same cannot be returned at the present. Hence opposed these writ petitions.

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It is not disputed that immediately after the accident the licences were seized by the first respondent and appears to have forwarded the same to the 2^nd

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Respondent. It is useful to refer the Judgment of the Division Bench in Sethuram vs. The Licensing Authority reported in 2010 Writ L.R.100 , wherein para 8 the 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 for reasons to be recorded in writing.

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Similarly in S. Murugan vs. Licensing Authority [W.A.(MD) No.176

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of 2009 dated 22.06.2009 Madurai Bench of Madras High Court] also the Division Bench 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 to the appellant. This is a clear violation of the provisions of the Statute.

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Another judgment of the Madurai Bench of this Court, in S. K rishnan

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vs. The Licensing Authority [MANU/TN/1360/2012] the Division Bench in para

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6 held that Section 19 itself gives the 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 Section19(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 also passed an order in K. Perumal vs. The Regional Transport Officer [W.P.(MD) No.9605 of 2022 dated 12.05.2022 – Madurai Bench of Madras High Court].

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One of the Writ Petitions filed before me, this Court has also passed an order in S. Baskaran vs. The Inspector of Police [W.P.No.33204 of 2022 dated 09.12.2022 – Madras High Court] directing the authority to release the licence. However, in Para No.5 of the Order, this Court directed the second respondent to

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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 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 above Division Bench judgments the power under Section 19 to suspend or revoke the licence by the licensing 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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Now, with regard to the submissions of Mrs.R.Anitha, learned Special Government Pleader 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

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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

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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

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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 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

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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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15.a. On perusal of the above provisions sub-clause (1) give power to the

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police to seize the licence if the police has reason to believe that there is any mark or document relate to the vehicle is false.

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15.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

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forward it to the Court concerned. The court concerned can return the licence to the concerned parties.

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15.c. Sub-clause (3) deals with the temporary acknowledgment by the

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police officer authorising the holder of driving licence to drive the vehicle until the licence returned to him.

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

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has reason to believe that the driver of the motor vehicle committed an offence

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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 the section 206 makes it clear when the police officer has reason to believe that the offence committed in any of the sections particularly in the Motor Vehicles Act, such officer can seize the licence. On such seizure, acknowledgment to be given by the police authorising the holder to drive vehicle until the licence is returned to him. Only the contingencies enumerate in Section 206, the licence can be seized by the police officer.

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Section 19(1) (A) Motor Vehicles (Amendment) Act, 2019 makes it

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clear that where a licence has been forwarded to the licensing authority under subsection (4) of section 206, 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 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 in certain circumstances. Only if the police officer has reason to believe that offence has committed in any of the 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

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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 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 acknowledgment 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 sections 183, 184, 185, 189, 190, 194C, 194D, or 194E, 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 attracted he can exercise such a power. The word “reason to believe” is defined under Section 26 of the Indian Penal Code which 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 the mere suspicion or doubt. The

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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 search 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 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

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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 action a notice of opportunity to be given to the holder of licence. Sub-clause 2 of Section 19 makes it very clear that only the order under sub-clause 1 or Sub-clause 1A 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 of the licence to take action under section 19 is not mandatory. Irrespective of licence being surrendered or produced before the authorities, the action can be initiated by the authorities under Section 19 on 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

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the licence. If at all any action is contemplated under Section 19, they may forward a report to the concerned RTA to take action under Section 19 of the Act. On such report the licensing authority is satisfied 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 licences in the given cases is not valid in the eye of law and the 2^nd Respondent is directed to return the licences to the respective petitioners within one week from the date of receipt of copy of this order. It is well open to the 1^st Respondent to send a report to the RTA for taking appropriate action. The RTA may after providing 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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