GENERAL INSURANCE COUNCIL AND ORS.versusSTATE OF ANDHRA PRADESH AND ORS.

                    [2010] 5 S.C.R. 97


      GENERAL INSURANCE COUNCIL AND ORS.                       A
                             v.
       STATE OF ANDHRA PRADESH AND ORS.
           (Writ Petition (C) No. 14 of 2008)
                      APRIL 19, 2010
                                                               B
      [P. SATHASIVAM AND DEEPAK VERMA, JJ.]

     Code of Criminal Procedure, 1973 - ss.451 and 457 -
Directions issued by StJpreme Court in two earlier cases with
regard to disposal of seized vehicles involved in commission C
of various offences - Petition under Art. 32 of the Constitution
alleging non-compliance of such directions - Considering the
mandate of s.451 rlw s.457, further directions now issued by
Supreme Court - In addition, all State Governments/Union
Territories/ Director Generals of Police directed to ensure D
macro implementation of the statutory provisions - Activities ·
of each and every police station, especially with regard to
disposal of seized vehicles, directed to be taken care of by
the Inspector General of Police of the concerned Division!
Commissioner of Police of the concerned cities/ E
Superintendent of Police of the concerned district - On non-
compliance of the directions, action to be taken against the
erring officials - Motor Vehicles Act, 1988 - s. 158(6) - Central
Motor Vehicle Rules, 1989 - r.159 - Constitution of India,
1950 - Article 32.
                                                               F
    In two earlier cases, viz. Sunderbhai Ambalal Desai's
case* and General Insurance Council's case**, the Supreme
Court had issued certain directions with regard to
disposal of seized vehicles involved in the commission
of various offences.                                           G

    A writ petition under Article 32 of the Constitution
was filed wherein it was contended that the police, the
investigating agency and the prosecuting agency were
                           97                                  H
    98      SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A not taking appropriate and adequated's1              teps1 'for
  compliance of the directions issued by this Court in the
  aforesaid two cases. Prayer was made for further
  directions, orders and clarifications, so that national
  waste with regard to the seized vehicles may not become
B junk and their road worthiness be maintained.

         Disposing of the writ petition, the Court

         HELD: 1.1. The information with regard to all insured
    vehicles in the country is available with the Insurance
C   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
D   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
E   coordination. The information is required to be utilised
    and followed scrupulously and has to be given positively
    as and when asked for by the Insurer. Also it is necessary
    that in addition to the directions issued by this Court in
    Sunderbhai Amba/al Desai's case, considering the
F   mandate of Section 451 read with Section 457 of tl:le
    CrPC, 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 so.on
G as it is informed of such recovery before the
  Jurisdictional Court. Ordinarily, release shall tie 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
H may be prepared before such release. (B) The
    GENERAL INSURANCE COUNCIL v. STATE OF                   99
              ANDHRA PRADESH
 photographs ~o taken may be used as secondary                    A
 evidence during trial. Hence, physical production of the
 vehicle may be dispensed with. 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                 B
 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 application for release of the recovered
 vehicle. Insistence on personal bonds may be dispensed           c
 with looking to the corporate structure of the insurer."
 [Paras 13, 14) [105-H; 106-A-H; 107-A-B]

       1.2. 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         D
  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      E
  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, all the State          F
  Governments/ Union Territorles/Director Generals of
  Police are directed to ensure macro implementation of the
  statutory provisions. It is further directed that the
· activities l>f each and every police stations, especially
  with regard to disposal of the seized vehicles be taken         G
  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. In case any non-compliance is
                                                                  H
         100       SUPREME COURT RE FORTS                  [2010] 5 S.C.R.

     A . reported either by the Petitioners or by any of the
         aggrieved party, then a serious view of the matter would
        be taken against an erring officer, who would be dealt
        with iron hands. [Paras 15, 16] [107-B-G]

     8       * Sunderbhai Ambalal Desai v. State of Gujarat, (2002)
         10 SCC 283 and ** General Insurance Council and Others
         v. State of Andhra Pradesh, 2007 (8) SCR 192, referred to. ·

                                Case Law Reference:

     c         c2002) 1o sec 283          referred to            Para 1
               2007(8) SCR 192            referred to            Para 8
              CIVIL ORIGINf.L JURISDICTION: Writ Petition (C) No. 14.
         of 2008.
     D         Under Article 32 of the Constitution .of India.

"'            G.E. Vahanvati, AG, Mohan Jain, ASG, Jayshree Anand,
         AAG, K. Ramamurthi, A. Mariarputham, Joy Basu, B.K Satijia,
         D.K. Thakur,,..!;), Wasim A. Qadri, Anil Katiyar, Asha G. Nair,
     E   Rohini Mukherjee, Sadhana Sandhu, D.S. Mahra, Madhurendra
         Kurpar, Bikas K Gupta, Avijit Bhattacharjee, Gopal Jain, Nitin
         Mishra, Ranjan Mukherjee, S. Bhovvmick, S.C. Ghosh, Sanjay
         R. Hegde.c /ti..c Rohen Singh, Ramesh Kr. Mishra, Sibo Sankar
         Mishra, Kamal Mohan Gupta, M.K. Michael, P.V. Yogeswaran,
     F   Gopal Singh, Rituraj Biswas, Noorjahan, K.K. Mahalik,
         Abhishek Vikas, T. Mahipal, Ram Naresh Yadav, Aruneshwar
         Gupta, S,S. Shamshery, P.N. Gupta, T. Harish Kumar,
         Prasanth P., Aruna Mathur, Amarjeet SinghGirsa, Arputham
         Aruna & Co., Anuradha Rustagi, D. Btiarathi Reddy, ~dward
     G   Belho, Enatoli Serna, Anil Shrivastav, Rituraj, Vikas Upadhyay,
         B.S. Banthia, M. Shoeb Alam, T.V. George, Navneet Kumar,
         Keshav, Corporate Law Group, B.B. Singh, H.K. Puri, Priya
         Puri, V.M. Chauhan, S.K. Puri, Naresh K. Sharma, Shailendra
         Swarup P.V. Dinesh, T.P. Sindhu, P.V. Vinod, P. Rajesh,
     H   Athouba Khaidem, H.B. Manar, Manish Kumar, V.G.
  GENERAL INSURANCE COUNCIL v. STATE OF                    101
            ANDHRA PRADESH
Pragasam, S.J. Aristotle, Prabu Rama Subramanian, A
Khwairakpam Nobin Singh, Ansar Ahmad Chaudhary,
Dharmendra Kumar Sinha, Ajay Pal for the appearing parties.

    The Judgment of the Court was delivered by

      DEEPAK VERMA, J. 1. Even though the question B
projected in this petition filed under Article 32 of the
Constitution of India stands answered by a judgmentof 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 C
Sections 451 and 457 of the Code of Criminc~I 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.                             D

     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 E
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.

     3. According to them, there has been a gross violation of
fundamental rights as conferretl on them under Articles 14 and F
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 G
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 fol
    102           SUPREME COURT REPORTS                   [2010) 5 S.C.R.
                                                            .I   . -• •   •\



A ·vehicles involved in commission of vario1,1s offences may not               •
   ·become junk and their road worthiness be maintained.

      ' 4. According to the Petitioners, the report of 20U5. of
    NCRB, 84,675 vehicles were reported lost, out of which 24,918
    vehicles were recovered by the \polic13 and out of the~9. only
8
    4,676 vehicles were finally co-otdinated. 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
C   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
D   Court was primarily dealing with provisions of Sections 451 and
    457 of the Code. While quoting the aforesaid two provisions
    of t~~ 'Act in the judgment, it was observed in para 7 as under:

          ·''7.       In our view, the powers under Section 451 Cr PC
                      should be exercised expeditiously and judiciously.
E
                      It would serve various purposes, namely:

                      1.    owner of the article would not suffer because
                            of its remajning unused or . by its
                            misappropriation;
F
                      2.    court or the police would not be required to
                            keep the article in safe cust6dy;

                  :   3.        if the prop~r panchnama before handing
                            over possession ofthe article is prepared,
G                           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        ·       ··     ·
H
      GENERAL INSURANCE COUNCIL v. STATE OF                     103
       ANDHRA PRADESH [DEEPAK VERMA, J.]
trn     - ·   4.    this jurisdiction of the court to record           A
                    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
                                                                       B
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,          c
              then seized articles behanded over to the
              complainant after:
              (1)   preparing detailed proper panchnama of
                    such     articles;
                                                                       D
              (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."                     E

    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            F
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 G
             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.
                                                                       H
                     .


    104       SUPREME COURT REPORTS                 [2010) 5 S.C.R.


A          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
B                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
c                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."
0
         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
E   of Andh.ra Pradesh and Others, decided on 09.07.2007 by a
    coordinate Bench of two learned Judges of this Court.

         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
F   Rule 159 of the Central Motor Vehicles Rules, 1989 in sbort,
    'the Rules'.
       10. This Court in the said matter after considering the issue
    came to the following conclusion:-
G              "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
H         Governments and the Union Territories shall instruct, if not
   GENERAL INSURANCE COUNCIL v. STATE OF                     105
    ANDHRA PRADESH [DEEPAK VERMA, J.]
    already done, all concerned police officers about the need       A
    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           B
    non-compliance, appropriate action shall be taken against
    the errino officials. The Department of. Transport and
              ~



     Highway shall make periodical verification to ensure that
    action is being taken and in case of any deviation
     imrr.ediately bring the same to the notice of the concerned     c
     State Government/Union Territories so that necessary
    action can be taken against the concerned officials."
           The writ petition is accordingly disposed of."
     11. Despite the aforesaid directions having been issued         D
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
                                                                     E
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         F
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        G
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     H
    106     SUPREME COURT REPORTS                   [2010] 5 S.C.R.


A' to all insured vehicle!:Vin"the~ bt>untry'is, availat>le with the
  lnsurariee 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
B 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
c necessary coordination.
        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
D 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
E
               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
F              taken duly authenticated and certified, and a
               detailed panchnama may be prepared before such
               release.
          (B)   The photographs so taken may be used as
G               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
H               event that the Magistrate finally adjudicates that the
   GENERAL INSURANCE COUNCIL v. STATE OF                       107
    ANDHRA PRADESH [DEEPAK VERMA, J.]
  ;:1nJ 11.      rightful ownership of the.·vehicle does not vest with A
  .101·   .-,.-,·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 8
                 structure of the insurer."
      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           C
account of weather conditions. Even a good maintained vehicle
loses its road worthin~ss 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            D
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           E
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            F
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         G
hands. With the aforesaid directions, this writ petition stands
finally disposed of.

8.8.8.                                  Writ Petition disposed of.