Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 14 OF 2008
General Insurance Council & Ors. …........Petitioners
Versus
State of Andhra Pradesh & Ors. ….......Respondents
J U D G M E N T
Deepak Verma, J.
1. Even though the question projected in this petition
filed under Article 32 of the Constitution of India stands
answered by a judgment of two learned judges of this Court
reported in (2002) 10 SCC 283 titled Sunderbhai Ambalal
Desai Versus State of Gujarat pertaining to interpretation
and mode of implementation of Sections 451 and 457 of the
Code of Criminal Procedure, 1973 (hereinafter shall be
referred to as 'the Code'), but on account of certain grey
areas having been left untouched, which still cast clouds on
the question, this petition has been filed for further
directions, orders and clarifications.
2. Petitioner No.1, General Insurance Council has been
constituted under Section 64 C (b) of the Insurance Act,
1938 consisting of all the members and associate members of
the association as envisaged in Section 64A of the said Act,
who carry on general insurance business in India and are
being represented by Petitioner No. 1 and have been arrayed
as Petitioner Nos. 2 to 5 in the said petition.
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3. According to them, there has been a gross violation
of fundamental rights as conferred on them under Articles 14
and 19 of the Constitution of India. Thus, they are
constrained to approach this Court directly by filing a
petition under Article 32 of the Constitution of India. They
further contended that despite the directions passed by this
Court in Sunderbhai Ambalal Desai (supra), as also in W.P.
(C) No. 282 of 2007 titled General Insurance Council and
Others Vs. State of Andhra Pradesh and Others, decided on
09.07.2007, there has not been full and complete compliance
of the same. Therefore, they have once again approached this
Court for issuing further directions so that national waste
with regard to the seized vehicles involved in commission of
various offences may not become junk and their road
worthiness be maintained.
4. According to the Petitioners, the report of 2005 of
NCRB, 84,675 vehicles were reported lost, out of which 24,918
vehicles were recovered by the police and out of these, only
4,676 vehicles were finally co-ordinated. As a result,
several hundred crores worth of assets were lost. Further, by
the time the recovered vehicles are released, the same are
reduced to junk at the respective police stations. In other
words, Petitioners have prayed that national waste that is
being caused could be substantially reduced, curbed and
eliminated to a great extent. Keeping in view the aforesaid
facts in mind, they have filed this Writ Petition.
5. In Sunderbhai Ambalal Desai (supra), the Supreme
Court was primarily dealing with provisions of Sections 451
and 457 of the Code. While quoting the aforesaid two
provisions of the Act in the judgment, it was observed in
para 7 as under:-
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“7. In our view, the powers under
Section 451 Cr PC should be exercised
expeditiously and judiciously. It would
serve various purposes, namely:
1. owner of the
article would not suffer because of its
remaining unused or by its
misappropriation;
2 . court or the
police would not be required to keep the
article in safe custody;
3 . if the proper
panchnama before handing over possession
of the article is prepared, that can be
used in evidence instead of its production
before the court during the trial. If
necessary, evidence could also be recorded
describing the nature of the property in
detail; and
4 . this jurisdiction
of the court to record evidence should be
exercised promptly so that there may not
be further chance of tampering with the
articles.”
6. To safeguard the interests of the prosecution, it
was directed that following measures should be adopted giving
instances contained in para 12 reproduced hereinbelow:
“12 For this purpose, if material on
record indicates that such articles
belong to the complainant at whose house
theft, robbery or dacoity has taken
place, then seized articles be
handed over to the complainant
after:
( 1 ) preparing detailed proper
panchnama of such articles;
( 2 ) taking photographs of such
articles and a bond that such
articles would be produced if required at
the time of trial; and
(3) after taking proper security.”
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7. While dealing with the seized vehicles from time to
time by the police either in commission of various offences
or abandoned vehicles or vehicles which are recovered during
investigation of complaint of thefts, the court observed as
under:-
“17. In our view, whatever be the
situation, it is of no use to keep such
seized vehicles at the police stations for
a long period. It is for the Magistrate to
pass appropriate orders immediately by
taking appropriate bond and guarantee as
well as security for return of the said
vehicles, if required at any point of
time. This can be done pending hearing of
applications for return of such vehicles.
18. In case where the vehicle is not
claimed by the accused, owner, or the
insurance company or by a third person,
then such vehicle may be ordered to be
auctioned by the court. If the said
vehicle is insured with the insurance
company then the insurance company be
informed by the court to take possession
of the vehicle which is not claimed by the
owner or a third person. If the insurance
company fails to take possession, the
vehicles may be sold as per the direction
of the court. The court would pass such
order within a period of six months from
the date of production of the said vehicle
before the court. In any case, before
handing over possession of such vehicles,
appropriate photographs of the said
vehicle should be taken and detailed
panchnama should be prepared.”
8. Since it appeared to the Petitioners that despite
the said directions, the requirements of the Petitioners were
not being fulfilled, they were constrained to file W.P (C)
No. 282 of 2007 titled General Insurance Council and Others
Vs. State of Andhra Pradesh and Others, decided on 09.07.2007
by a coordinate Bench of two learned Judges of this Court.
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9. In this second round of litigation before this
Court, a direction was sought with regard to compliance of
Section 158 (6) of the Motor Vehicles Act, 1988 in short 'the
M.V. Act' and Rule 159 of the Central Motor Vehicles Rules,
1989 in short, 'the Rules'.
10. This Court in the said matter after considering the
issue came to the following conclusion:-
“Since there is a mandatory
requirement to act in the manner provided
in Section 158 (6) there is no
justifiable reason as to why the
requirement is not being followed.
It is, therefore, directed that
all the State Governments and the Union
Territories shall instruct, if not already
done, all concerned police officers about
the need to comply with the requirement of
Section 158 (6) keeping in view the
requirement indicated in Rule 159 and in
Form 54. Periodical checking shall be
done by the Inspector General of Police
concerned to ensure that the requirements
are being complied with. In case there is
non-compliance, appropriate action shall
be taken against the erring officials.
The Department of Transport and Highway
shall make periodical verification to
ensure that action is being taken and in
case of any deviation immediately bring
the same to the notice of the concerned
State Government/Union Territories so that
necessary action can be taken against the
concerned officials.”
The writ petition is accordingly
disposed of.”
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11. Despite the aforesaid directions having been issued
by this Court in the aforesaid two matters, grievance is
still being made by the Petitioners, that the police,
investigating agency and the prosecuting agency are not
taking appropriate and adequate steps for compliance of
aforesaid directions issued by this Court. Therefore, a need
has arisen for giving further directions so as to clear the
clouds and iron out the creases.
12. Notice of the said petition was issued to all the
States and Union Territories. Almost all the States have
contended that they have already issued necessary guidelines
and directions for full and complete compliance of the
provisions contained in Sections 451 and 457 of the Code as
elaborated in Sunderbhai Ambalal Desai (supra) as also under
Section 158 (6) of the M.V. Act and 159 of the Rules as
directed in General Insurance Council case (supra). Thus, in
one voice, they have contended that there would not be any
difficulty in compliance of the directions that may be issued
in furtherance of achieving the object as directed by this
Court. Thus, in our view, there appears to be consensus in
this matter.
13. Petitioners have submitted that information with
regard to all insured vehicles in the country is available
with the Insurance Information Bureau created by IRDA. This
information could be utilised to assist the police to
identify the insurer of the vehicle. Upon recovery of the
vehicle in police station, insurer/ complainant can call an
All India Toll Free No. to be provided by Insurance
Information Bureau to give the information of the recovered
vehicle. Thereafter, the insured vehicle database would be
searched to identify the respective insurer. Upon such
identification, this information can be communicated to the
respective insurer and concerned police stations for
necessary coordination.
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14. In our considered opinion, the aforesaid information
is required to be utilised and followed scrupulously and has
to be given positively as and when asked for by the Insurer.
We also feel, it is necessary that in addition to the
directions issued by this Court in Sunderbhai Ambalal Desai
(supra) considering the mandate of Section 451 read with
Section 457 of the Code, the following further directions
with regard to seized vehicles are required to be given.
“(A) Insurer may be permitted to move a
separate application for release of the
recovered vehicle as soon as it is
informed of such recovery before the
Jurisdictional Court. Ordinarily, release
shall be made within a period of 30 days
from the date of the application. The
necessary photographs may be taken duly
authenticated and certified, and a
detailed panchnama may be prepared before
such release.
(B) The photographs so taken may be
used as secondary evidence during trial.
Hence, physical production of the vehicle
may be dispensed with.
(C) Insurer would submit an
undertaking/guarantee to remit the
proceeds from the sale/auction of the
vehicle conducted by the Insurance Company
in the event that the Magistrate finally
adjudicates that the rightful ownership of
the vehicle does not vest with the
insurer. The undertaking/guarantee would
be furnished at the time of release of the
vehicle, pursuant to the applcation for
release of the recovered vehicle.
Insistence on personal bonds may be
dispensed with looking to the corporate
structure of the insurer.”
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15. It is a matter of common knowledge that as and when
vehicles are seized and kept in various police stations, not
only they occupy substantial space of the police stations but
upon being kept in open, are also prone to fast natural decay
on account of weather conditions. Even a good maintained
vehicle loses its road worthiness if it is kept stationary in
the police station for more than fifteen days. Apart from the
above, it is also a matter of common knowledge that several
valuable and costly parts of the said vehicles are either
stolen or are cannibalised so that the vehicles become
unworthy of being driven on road. To avoid all this, apart
from the aforesaid directions issued hereinabove, we direct
that all the State Governments/ Union Territories/Director
Generals of Police shall ensure macro implementation of the
statutory provisions and further direct that the activities
of each and every police stations, especially with regard to
disposal of the seized vehicles be taken care of by the
Inspector General of Police of the concerned
Division/Commissioner of Police of the concerned
cities/Superintendent of Police of the concerned district.
16. In case any non-compliance is reported either by the
Petitioners or by any of the aggrieved party, then needless
to say, we would be constrained to take a serious view of the
matter against an erring officer who would be dealt with iron
hands. With the aforesaid directions, this writ petition
stands finally disposed of.
…...................................J.
[P.SATHASIVAM]
......................................J.
[DEEPAK VERMA]
New Delhi.
April 19, 2010