Hanuman Sahai and anr. Vs. the State - Court Judgment

Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....orderd.s. dave, j.1. this reference comes on the report oe the learned additional sessions judge, sikar, dated the 15th march, 1961.2. the facts giving rise to it are that on 17-1-61 a motor-bus no, rjv 357, which used to ply on the route between sikar and shrimadhopur, was checked at about 6-45 p.m. by surajbhan singh, head constable (traffic) when it was passing near the workshop of chandi prasad khetan on the hospital road, sikar, he found that the driver and the conductor had contravened certain provisions of the rajasthan motor vehicles rules, 1951, and therefore both of them were prosecuted in the court of the magistrate first class, sikar. it was alleged against the driver hanuman sahai that he refused to produce his driving licence on demand by the said head constable and that he.....

Judgment:
ORDER

D.S. Dave, J.

1. This reference comes on the report oE the learned Additional Sessions Judge, Sikar, dated the 15th March, 1961.

2. The facts giving rise to it are that on 17-1-61 a motor-bus No, RJV 357, which used to ply on the route between Sikar and Shrimadhopur, was checked at about 6-45 P.M. by Surajbhan Singh, Head Constable (Traffic) when it was passing near the workshop of Chandi prasad Khetan on the hospital road, Sikar, He found that the driver and the conductor had contravened certain provisions of the Rajasthan Motor Vehicles Rules, 1951, and therefore both of them were prosecuted in the court of the Magistrate First Class, Sikar. It was alleged against the driver Hanuman Sahai that he refused to produce his driving licence on demand by the said head constable and that he was not wearing the prescribed uniform. Against the conductor, Habib, it was alleged that he was not wearing the prescribed uniform. It was further alleged that the bus was carrying 59 passengers although the permit was given only for 48, and that five big bundles of cloth were placed on its top, with the result that the permissible height at the top was exceeded. When the case came for hearing before the Magistrate on 18-1-61, he examined both the accused under Section 242, Cri. P. C. and thereafter passed an order directing Surajbhan Singh, Head Constable (Traffic) to seize the said bus for mechanical inspection and evidence in the court. In pursuance of this order the bus was seized and kept at Kotwali Sikar. On the same day, the driver presented an application before the Magistrate to the effect that the seizure of the bus would cause heavy pecuniary loss to the owner thereof and that it should be handed over to his possession. It was also stated that he was prepared to furnish security for its production before the court whenever it was needed. The Magistrate fixed 19-1-61 for arguments regarding this application, but it could not be decided on that day, since the counsel for the accused was not present. It was taken up on the next day, but again it was adjourned to 21-1-61 on the ground that the report relating to mechanical inspection was not received. When the case was taken up on 21-1-61, it was noted by the Magistrate that the report relating to mechanical inspection was received and that the bus should be released but it should not be plied till another certificate of fitness was obtained. The mechanical inspector was directed to comply with that order.

3. On a revision application filed by the accused against the said orders, the learned Additional Sessions Judge has reported that both the orders, referred above, passed by the Magistrate were wrong and should be set aside. He has also forwarded with his report an explanation of the Magistrate under Rule 80 General Rules (Criminal). The learned Magistrate has stated in his explanationthat he bad nothing to say except inviting the attention of the court to Section 516A, Cri. P. C.

4. It appears from the explanation offered by the learned Magistrate that either he has not carefully gone through Section 516A, Cri. P. C or he has made a vain attempt to justify his wrong orders by simply referring to a provision of law. Section 516A, Cri. P. C. runs as follows:

'516A. Order for custody and disposal of property pending trial in certain cases,--When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, or if it is otherwise expedient so to do, the Court may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of'.

5. It is clear from the language of the section reproduced above that it empowers a criminal court to make such order as it thinks fit for the proper custody of the property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, if it is produced before that court during any inquiry or trial, it is obvious that this section does not empower the court to pass orders about the seizure of any particular property. The court has to pass orders only if the property is produced before it. Moreover, the property to which the section refers is the property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence. In the present case, there was no allegation that any offence appeared to have been committed regarding the bus, noted above, nor was it alleged if the bus had been used for the commission of any offence. Under these circumstances, the Magistrate was clearly in error in proceeding under the said section. From the police report, which was presented before him, it appears that there was no allegation to the effect that there was any mechanical defect in the bus. Under these circumstances, there was no reason why the Magistrate should have ordered the seizure of the bus and directed that it should be sent for mechanical inspection. It would have been appreciated by him that if a bus is stopped from plying on its route, its owner has to incur a heavy recurring loss. When an application was presented on the same day for releasing the bus from custody and when the accused were prepared to furnish security, the Magistrate ought not to have detained it unnecessarily and adjourned the hearing of the application to the next date. It was unfortunate that he did not pass the release order even on 20-1-61. Even on 21-1-61 when he ordered the bus to be released he imposed another fetter to the effect that the bus would not be plied without obtaining a fresh certificate of fitness. It does not appear from his order dated 21-1-61 if the mechanical inspector had shown any defect after his inspection of the vehicle. Under these circumstances,a further order putting restraint on the running of the bus was not justified. The recommendation of the learned Additional Sessions Judge for setting aside both the orders is quite correct.

6. The reference is therefore allowed, and both the impugned orders dated 18-1-61 and 21-1-61 passed by the Magistrate First Class, Sikar, are hereby set aside. The record be sent back to the trial court for proceeding further in the matter according to law.