Mohammed Illyas vs Union Of India (Uoi) on 15 September, 1990

JUDGMENT

K.A. Swami, J.

1. In alt these Petitions under Articles 226 and 227 of the Constitution, the petitioners – operators of the tourist, vehicles or stage carriages have sought for a declaration that the provisions of Section 200 of the Motor Vehciles Act, 1988 (hereinafter referred to as ‘the Act’) and Rule 259(2) of the Karnataka Motor Vehicles Rules, 1989 (hereinafter referred to as ‘the Rules’) are violative of Articles 14 and 19(1)(g) of the Constitution and to strike down the same. The petitioners – the operators of the tourist vehicles have also sought for a declaration that the operation of the tourist vehicles under valid tourist permits for Country wide operation between one terminus in home State and another terminus in another State are not liable to be seized and detained on the basis of Entry 16 of the Notification bearing No. FTD 18 TMR 85 dated 13-11 -1986 on the sole ground that the said tourist vehicles are operated as non-stop stage carriages between any two points and carry individual passengers. They have also sought for quashing the Entry Nos.16 and 64 contained in the Notification bearing No. FTD 18 TMR 85 dated 13-11-1986 issued by the State Government. The operators of the tourist vehicles have also sought for an appropriate direction to the respondents 2 to 4 and their subordinates to refund the compounded fee collected from the petitioners – operators. There are other prayers made in individual Writ Petitions which relate to quashing of the checking report cum receipt issued in individual cases.

2. Originally some of the Petitions were filed under the Motor Vehicles Act, 1939 challenging the provisions contained in Section 127B of the Motor Vehicles Act, 1939 and the Notification issued thereunder bearing No. FTD 18 TMR 85 dated 13-11-1986.

3. The Statement of Objections was also filed by the respondents on the basis of the provisions contained in the Motor Vehicles Act, 1939, which will hereinafter be referred to as 1939 Act. However, during the course of the hearing, in the light of the coming into force of the Act (Motor Vehicles Act, 1988) with effect from 1st July, 1989, some of the petitioners made written applications to seek appropriate amendments having regard to the repealing of the 1939 Act and re-enacting of the similar provisions in the Act i.e., Motor Vehicles Act, 1988. As far as the Notification dated 13-11-1986 is concerned, the same has been saved having regard to the provisions contained in Section 217(2)(a) of the Act.

3(a). In view of the fact that Section 200 of the Act contains the provisions similar to Section 127B of the 1939 Act and also that the Act contains many provisions regarding control of the vehicles and other connected matters similar to those contained in the 1939 Act, the applications filed by the petitioners seeking amendment were allowed. In some of the Petitions, oral applications were made to the same effect, and the same were also allowed. Subsequently, some of the petitioners also sought for addition of another prayer, namely, to declare Rule 259(2) of the Rules in so far it covers Section 200 of the Act as unconstitutional. That amendment was also allowed. The respondents have also filed the additional Statement of Objections.

4. In the light of the contentions urged on both sides, the following points arise for consideration:

1) Whether the provisions contained in Section 200 of the Act and Rule 259(2) of the Rules in so far they empower any Officer of the Motor Vehicle Department of and above the rank of Inspector of Motor Vehicles to exercise the power under Section 200 of the Motor Vehicles Act, 1988 are violative of Articles 14 and 19(1)(g) of the Constitution?

2) Whether the Notification bearing No. FTD 18 TMR 85 dated 13-11-1986 is liable to be quashed being violative of Articles 14 and 19(1)(g) of the Constitution?

3) Whether the operators of the tourist vehicles are entitled to a declaration that the tourist vehicles under valid tourist permits for Country-wide operation between one terminus in home State and another terminus in another State are not liable to be seized and detained on the basis of the Entry No. 16 of the Notification No. FTD 18 TMR 85 dated 13-11-1986 on the sole ground that the said tourist vehicles are operated as non-stop stage carriage between any two points and carry individual passengers?

4) Whether the petitioners are entitled to the relief as to refund of the compounding fee paid in each one of these petitions?

POINTS Nos. 1 & 2 5.

Section 200 of the Act reads thus:

“Composition of Certain Offences – (1) Any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, Sub-section (1) or Sub-section (2) of Section 183, Section 184, Section 186, Section 189, Section 191, Section 192, Section 194, Section 196, or Section 198 may either before or after the institution of the prosecution, be compounded by such Officers or Authorities and for such amount as the State Government may, by Notification in the Official Gazette, specify in this behalf.

(2) Where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.”

Similarly Rule 259(2) of the Rules also reads thus:

“Any Officer of the Motor Vehicles Department of and above the rank of Inspector of Motor Vehicles shall exercise the powers under the provisions of Section 114, 130, 132, 133, 134, 136, 158, 200, 203, 204, 205, 206 and 207 of the Act.”

It may be relevant to notice that Rule 259(2) of the Rules is challenged only in so far it empowers any Officer of the Motor Vehicles Department of and above the’ rank of Inspector of Motor Vehicles to exercise the powers under Section 200 of the Act. Section 200 of the Act authorises the State Government to empower such Officers or Authorities by issue of a Notification in the Official Gazette to compound either before or after the institution of the prosecution in respect of any offence committed before or after the commencement of the Act punishable under Sections 177, 178, 179, 180, 181, 182, Sub-section (1) or Sub-section (2) of Section 183, Sections 184, 186, 189, 191, 192, 194, 196 and 198 of the Act. Therefore, even though the Rule has been challenged in so far it empowers the Officer of and above the rank of Inspector to exercise the power under Section 200 whereas Section 200 empowers such Officers to exercise the powers to compound the offences punishable under various Sections mentioned in that Section, therefore, the challenge in effect covers exercise of power by the Officer of and above the rank of Inspector under the various provisions mentioned in Section 200 of the Act. The validity of Sub-rule (2) of Rule 259 also depends upon the validity of Section 200 and the Notification No. FTD 18 TMR 85 dated 13-11-1986 issued thereunder. In the event Section 200 is held valid and the Notification issued thereunder is also held valid, there will not be much left for consideration as to the validity of Rule 259(2) of the Rules because the said Rule as already pointed out does not provide more than what is provided under Section 200 of the Act.

6. The Notification No. FTD 18 TMR 85 dated 13-11-1986 is issued under Section 127B of the Motor Vehicles Act, 1939. The said Notification having regard to the provisions contained in Section 217(2)(a) of the Act, has been continued irrespective of the repeal of the 1939 Act, therefore, it must be deemed to have been issued under Section 200 of the Act. The said Notification supercedes the earlier similar Notification dated 28th April 1986. It empowers the Officers mentioned therein to compound the offences specified therein. Following Officers are empowered under the Notification:

1) Officers of and above the rank of Inspector of Police in – charge of circles within their respective jurisdiction in the State;

2) Officers of and above the rank of Sub-Inspector of Police (Traffic) in case of City of Bangalore, within their respective jurisdiction.

The Notification further states the nature of the offences and the provisions of the Act and the Rules and also the compounding fee in respect of each of the offences. The Officers empowered under the Notification have no discretion either to reduce the compounding fee or to enhance it. The Notification contains in all 161 Entries covering various offences under the provisions of the 1939 Act and the Karnataka Motor Vehicles Rules, 1963. As already pointed out, the Notification has been continued under Section 217(2)(a) of the Act. The 1988 Act also contains the provisions similar to those contained in 1939 Act. The various provisions mentioned in the Notification are to be read as corresponding to the similar provisions contained in the Act and also the corresponding Rules contained in 1989 Rules. As it is already pointed out, in all these Petitions, only the Entry Nos. 16 and 64 are challenged. However, as the validity of the Notification is challenged on the ground that it is violative of Articles 14 and 19(1)(g) of the Constitution, in the event the contentions of the petitioners are accepted, the whole Notification has to go irrespective of the fact that the petitioners have laid stress on Entry Nos.16 and 64.

7. Sri M. Rangaswamy, learned Counsel appearing for the petitioners, Sri M.R.V. Achar, learned Counsel appearing for some of the petitioners, Sri S.V. Krishnaswamy, Sri C.N. Achar and Sri Shanthamallappa, learned Counsel appearing for some of the petitioners contended that compounding of an offence involves determination of the criminal liability and the administration of criminal justice is an inviolable part of the Judiciary under the constitutional set up, that as the Section empowers to authorise any Officer or the Authority to compound the offence and thereby enabling the State Government to empower any Officer or the Authority other than the Court to determine the criminal liability; such a provision completely deprives the Court from its authority to determine criminal liability and punish the offender is opposed to the Very basic features of the Constitution, in addition to the fact that it is violative of Articles 14 and 19(1)(g) of the Constitution. It is further contended that the determination of the criminal liability is a serious matter and it makes an operator of the vehicle as well as in some cases the drivers of the motor vehicles criminally liable with penal consequences. The Officers, who are empowered under the Notification are neither experts in law nor are they trained in Judicial determination of the criminal liability. Therefore, empowering of such Officers with the Authority to determine the offences and compound them is nothing but an arbitrary act violative of Article 14 of the Constitution. Elaborating the argument, it is further contended that as the right to operate a vehicle is a right to carry on avocation or trade, if Officers or the Authorities, who are not competent to determine the criminal liability or empowered to determine the criminal liability and compound the offences, such an act would also affect the right to carry on the trade or avocation in as much as there would be an interference with that right by the Officers/Authorities who are not competent to determine the question as to whether there is any offence committed by the operator or the driver under the provisions of the Act. It is also further contended that no doubt in respect of the offences relating to motor vehicles and operation of the same whether it be of tourist vehicles, stage carriages vehicles or vehicles of other nature, in view of the fact that the movement of the vehicles will be interfered with and there will be several cases of that nature therefore in the interest of expediency it may be permissible to provide fixed penalty procedure or in other words spot penalty procedure by empowering the Competent Authorities, and at the same not allowing such procedure to be completely free from the Court control or supervision. If it is completely detached from the Court and the Court is deprived of its power even though under the provisions of the Act, it is the Court which alone is entitled to determine the offences committed under the Act, record conviction and impose punishment; there will not only be a violation of basic features of the Constitution but it would also amount to taking away the inviolable part of the jurisdiction of the Court and entrusting the same to the Officers or the Authorities who cannot be considered to be the Court, Therefore, it is the contention of the petitioners that even if it is held that fixed penalty procedure or otherwise known as spot penalty procedure is permissible for the sake of expediency, the control of the Court over the same in some form or the other should be retained. In support of these contentions reliance is placed on the Statement of Law made in Halsbury’s Laws of England, Volume 40, Fourth Edition, paragraphs 539 and 540, the Statement of Law made by Glanville Williams in his Text Book of Criminal Law – Second Edition, the definition of the word ‘compounding crime’ as contained in Black’s Law Dictionary and also certain observations contained in Administrative Law – Second Edition by Bernard Schwartz. Reliance is also placed on a Decision of the Supreme Court in S.P. SAMPATH KUMAR v. UNION OF INDIA AND ORS,. AIR 1987 SC 386 These would be referred to while considering the validity of these contentions.

8. On the contrary, it is contended by Sri Shylendra Kumar, learned Senior Standing Counsel for the Central Government and Sri Ramesh, learned High Court Government Pleader that the provisions contained in Section 200 of the Act only authorises the State Government to empower the Officers or the Authorities to compound the offences before or after the institution of prosecution that such a provision is beneficial to, and is in the interest of the operators of the motor vehicles because it would be open to them to agree to compound and save themselves from the trouble of facing the prosecution. It would not only save their time, energy and money but will also enable them to have the smooth operation of the vehicles irrespective of the fact that they have committed certain offences pertaining to operation of vehicles. If such a provision is held to be unconstitutional on the grounds contended by the petitioners, it would seriously affect the Authorities charged with the administration of the Act to exercise effective control over the vehicles and the operators of the vehicles, In their Statement of Objections it is also specifically contended that the provision is intended to curtail, delay and arrears, in trial Courts and in fact it is intended to benefit the operators by enabling them to compound the offences by paying compounding fee instead of facing prosecution. It is contended that the Officers or the Authorities empowered to exercise power under Section 200, do not determine the offence, they only prima facie find out as to whether the offence has been committed and if so, give an option to the operator to compound or in the case of refusing to compound to face the prosecution. It is also contended in the Statement of Objections that Section 200 of the Act is independent of the provisions contained in Section 60 or Section 130 of the 1939 Act which are equivalent to the provisions contained in Sections 86 and 208 of the 1988 Act.

9. It is contended on behalf of the State that the Notification issued under Section 200 of the Act only empowers those Officers who are entitled to exercise power under Section 207 of the Act which is equivalent to Section 129A of the 1939 Act which has been held valid by the Supreme Court in THE TRANSPORT COMMISSIONER, ANDHRA PRADESH, HYDERABAD AND ANR. v. S. SARDAR AlI AND ORS. Therefore, when the Officers empowered under the Notification are entitled to seize and detain the vehicle under Section 207 of the Act and such seizure and detention takes place only on the basis that there is a contravention of the provisions mentioned in Section 207 of the Act; there is nothing wrong nor it is unconstitutional or arbitrary, in empowering them to compound the offences for which the vehicles are liable to be seized. As far as Rule 259(2) of the 1988 Rules is concerned it is contended that the Officers mentioned in that Rule are also empowered under Section 207 of the Act to seize the vehicle for the offences mentioned under Section 200 of the Act, Therefore, the Rule is neither unconstitutional nor it is ultra vires of the powers of the State Government to frame the Rules under the Act. It is also the contention of the learned Government Pleader that as the provisions contained in Section 200 of the Act and the Notification issued thereunder empowering certain Officers to compound the offences are beneficial to operators of motor vehicles, it is not open to them to challenge the same. In support of this plea, the Government Pleader placed reliance on a Decision of this Court in SHAW GHELABHAI v. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, ILR 1965 KAR 1330. It is also contended by the learned Senior Standing Counsel for the Central Government and the learned Government Pleader that the provisions contained in Section 200 cannot be struck down as violative of Articles 14 and 19(1)(g) of the Constitution merely because the said provisions do not contain the guidelines as to on what basis the Officers and the Authorities are to be selected and are to be empowered to exercise the power to compound the offences; therefore there is likelihood of arbitrary exercise of the power. In such a case it is the validity of exercise of power in each case that has to be considered and the provisions cannot be held to be bad in law or violative of Article 14 of the Constitution merely because there is likelihood of arbitrary exercise of the power. Reliance is placed on the Decision of the Supreme Court in MEHMOOD ALAM TARIQ AND ORS. v. STATE OF RAJASTHAN AND ORS., . It is also the contention of the learned Government Pleader appearing for the State and the Senior Standing Counsel for the Central Government that compounding of an offence is a matter of agreement between the Authority and the person who is alleged to have committed the offence. There is no compulsion for the offender to compound the offence. It is a voluntary act of the offender to agree to compound. Therefore, such a provision cannot be held to affect the right of the offender in any manner or contravene either the basic features of the Constitution or Articles 14 or 19(1)(g) of the Constitution because it is always open to the offender not to agree and allow the Officer or the Authority to proceed to prosecute him and contest the prosecution in the Court of Law. It is also contended that the Officers empowered under the Notification dated 13-11-1986, are those who possess the qualifications prescribed under Section 213 of the Act read with the Notification No. SO 443 E dated 12th June, 1989 issued in exercise of the power under Sub-section (4) of Section 213 of the Act.

10. Section 207 of the Act, as already pointed out is equivalent to Section 129A of the 1939 Act which has been held valid in Sardar All’s case by the Supreme Court. It provides that any Police Officer or any other person authorised by the State Government may if he has reason to believe that the motor vehicle has been or is being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required by Sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used seize and detain the vehicle in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. Proviso thereto further provides that where any such Officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit in contravention of Sub-section (1) of Section 66, he may instead of seizing the vehicle, seize the Certificate of Registration of the vehicle and shall issue an acknowledgement in respect thereof. Thus, from the aforesaid proviso, it is clear that if there is a reason to believe that the motor vehicle has been or is being used in contravention of Sections 3 or 4 which relate to driving licence and the age of the person driving the motor vehicle and also driving the vehicle without the permit in contravention of Sub-section (1) of Section 66 of the Act, the vehicle is not required to be seized, but only Certificate of Registration of the Vehicle has to be seized and an acknowledgement has to be given. The other offences mentioned in Sub-section (1) of Section 207 of the Act which are not covered by the proviso are:

(i) contravention of Section 39 of the Act i.e., no person shall drive any motor vehicle or no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter IV of the Act and the Certificate of Registration of the vehicle has not been suspended or cancelled and the vehicle carries a Registration Mark displayed in the prescribed manner;

(ii) use of the vehicle in contravention of any condition of the permit relating to the route on which or the area in which or the purpose for which the vehicle may be used.

These offences are punishable under Section 86 of the Act. The power under Section 86 is exercisable only by the Transport Authority competent to grant the permit, whereas Section 200 of the Act covers the offences which are not covered by Section 207 of the Act. As already pointed out, Section 200 empowers the Officers or the Authorities authorised by the State Government to compound the offences punishable under Sections 177 to 182, Sub-section (1) or (2) of Sections 183, 184, 186, 189, 191, 192, 194, 196 and 198. Section 177 provides for punishment for the contravention of the provisions of the Act and the Rules, Regulation or Notifications made thereunder for which no penalty is provided for the offence be punished for the first offence with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees. Section 178 relates to penalty for travelling without pass or ticket and for dereliction of duty on the part of conductor and refusal to ply contract carriage etc. Section 179 provides for punishment for disobedience of orders or for causing obstruction to any person or authority in the discharge of his function under the Act. It also provides, for punishment for refusing to supply any information or wilfully witholds such information or gives information which he knows to be false or which he does not believe to be true. Section 180 provides for punishment for allowing unauthorised persons to drive vehicles. Section 181 provides for punishment for driving vehicle in contravention of Section 3 or Section 4. As far as Section 181 is concerned, there is a power of seizure conferred by Section 207 of the Act. Section 182 provides for punishment with regard to the offences relating, to licences. Sub-sections (1) and (2) of Section 183 provides -for punishment for driving a motor vehicle in contravention of the speed limits referred to in Section 112. Section 184 provides for punishment for driving the vehicle at a speed or in such a manner which is dangerous to the public. Section 186 provides for punishment for driving the vehicle when mentally or physically unfit to drive. Section 189 makes punishable an act of taking part in a race or trial of speed of any kind’ without the written consent of the State Government. Section 191 makes punishable sale, offer to sell or delivering a motor vehicle or trailer in such a condition that the use thereof in a public place would be in contravention of Chapter VII of the Act or any Rule made thereunder and alteration of the vehicle or trailer so as to render its condition such, that its use in public place would be in contravention of Chapter VII of the Act and the Rules made thereunder. Section 194 provides for punishment for driving a motor vehicle or causing or allowing a motor vehicle to be driven in contravention of Sections 113 or 115 of the Act; Section 196 provides for punishment for driving or causing or allowing a motor vehicle to be driven without insured as per Section 146 of the Act i.e., without insured against third party risk. Thus Section 200 of the Act enables the State Government to empower the Officers and Authorities to compound several offences which are not included under Section 207 of the Act which empowers the Officers mentioned therein to seize and detain the vehicle. Therefore, it is the contention of the learned Government Pleader that as Section 207 is equivalent to Section 129A of the 1939 Act which has been held valid; that it is the very same Officers who have been empowered to exercise the power of compounding in exercise of the power conferred under Section 200 of the Act by issuing a Notification; as such it is contended that neither Section 200 nor the Notification issued thereunder can be held to be either violative of Articles 14 or 19(1)(g) of the Constitution nor it is opposed to the basic structures, basic features of the Constitution. The power of seizure seriously affects the right of the operators of the vehicles and such a provision has been held to be valid, whereas the provisions contained in Section 200 being enabling provisions inasmuch as they only enable the Officers or the Authority empowered thereunder to afford an opportunity to the operators of the vehicle either to compound or to face the prosecution. Therefore, such a provision cannot be held to be arbitrary.

11. At this stage, it is relevant to refer to the relevant portions the decision in Sardar Ali’s case. In para 3 of the Judgment, after extracting Section 129A of the 1939 Act, it has been observed thus:

“It is seen that Section 129A contemplates three situations where the Police Officer or authorised person may seize and detain the vehicle. The three situations are: (i) where he has reason to believe that the” motor vehicle has been or is being used in contravention of the provisions of Section 22, (ii) where he has reason to believe that the motor vehicle has been or is being used without the permit required by Section 42(1) and (iii) where he has reason to believe that the motor vehicle has been or is being used in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. These are precisely the three situations contemplated by Section 123(1) of the Motor Vehicles Act and made punishable under that provision.”

Again after extracting Section 123 of the 1939 Act, it is observed as under:

“it is therefore, clear that the power given to seize and detain the vehicle under Section 129A is to be exercised by the Police Officer or the authorised person when he has reason to believe that an offence punishable under Section 123(1) has been or is being committed. Now, after detecting the commission of an offence punishable under Section 123(1) of the Motor Vehicles Act, the next appropriate step for the Police Officer or the authorised person would be to consider the question whether the offence should be compounded as provided by Section 127B of the Motor Vehicles Act and any Notification issued by the Government in that behalf.”

Thereafter, Section 127B has been extracted. After extracting Section 127B of 1939 Act, it has been further observed thus:

“Thereafter the next logical and appropriate step for the Police Officer or the authorised person would be to lay a complaint before the Court competent to take cognizance of the offence, subject to the overriding provision of Section 132 of “the Motor Vehicles Act which provides that no Court inferior to that of a Metropolitan Magistrate or a Magistrate of the Second Class shall try any offence punishable under the Motor Vehicles Act or any Rule made thereunder. Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Penal Code shall also be investigated, inquired into, tried and otherwise dealt with according to the same provisions, that is, the provisions of the Criminal Procedure Code, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Chapter XIII of the Code of Criminal Procedure deals with “Jurisdiction of the Criminal Courts in inquiries and trials”. So, subject to Section 132 of the Motor Vehicles Act, the Court before which the complaint may be laid has to be determined in accordance with the provisions of Chapter XIII of the Code of Criminal Procedure. After the complaint is laid, the case has to be tried in accordance with the provisions of the Code of Criminal Procedure. This again is subject to one special provision of the Motor Vehicles Act, namely Section 130.”

After quoting Section 130 of the Act, the Supreme Court has considered the question as to what happens to the vehicle seized under the provisions of Section 129A. In that connection, it is observed that the seizure is generally expected to serve a manifold purpose, such as to prevent repetition of the offence, to use the thing seized as material evidence in the prosecution, to preserve the property so as to enable the Court to pass appropriate orders for its disposal by way of destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise. It has also been further observed that there is no reason to assume that the seizure under Section 129A is in any way different and is not to serve any of the aforesaid purposes or any purpose at all. Thereafter, it has been further observed that so far as the custody of the vehicle pending the conclusion of the case is concerned, the Court may either treat the arrangement made by the Officer or person acting under Section 129A as sufficient or may itself make further or other orders. Section 451 of the Code of Criminal Procedure empowers the Court when any property is produced before it during any inquiry or trial, to make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial. Therefore, it has been further held that:

“A Motor Vehicle regarding whose temporary custody arrangements have been made under Section 129A of the Motor Vehicles Act by the Police Officer or the authorised person seizing the vehicle must be considered to have been produced before the Criminal Court as soon as a complaint is filed before the Court alleging the commission of an offence under Section 123 regarding the vehicle. In any case, the Court has ample power under Chapter VII of the Code of Criminal Procedure and Section 91 in particular, to compel the production of the vehicle before the Court. Thus if the provisions of the Motor Vehicles Act are read in conjunction with the provisions of the Code of Criminal Procedure – and there is no getting away from the provisions of both the laws – it is seen that there is no lacuna whatsoever in regard to the proper custody and disposal of the motor vehicle seized under Section 129A of the Motor Vehicles Act. The custody of the vehicle in the hands of the Police Officer or the authorised person is but temporary and he is therefore, obliged to act and take all further steps in the matter with all expedition. If he releases the vehicle on being satisfied that no offence has been committed or if he releases the vehicle on the offence being compounded, no further question arises. If, instead, he lays a complaint before the Court, the Court acquires instant jurisdiction over the vehicle to pass suitable orders. In the remote event of the Police Officer or the authorised person not taking any further action after seizing and detaining the vehicle, the owner of the vehicle is not without remedy. Article 226 is always available but one does not have to presume that the Police Officer or the authorised person may not act according to law.”

The learned Counsels appearing for the respondents lay more stress on the observations of the Supreme Court: “If he releases the vehicle being satisfied that no offence is committed or if he releases the Vehicle on the offence being compounded, no further question arises,” and contend that the power of compounding must also deemed to have been held valid by the Supreme Court in Sardar Ali’s case. It is relevant to notice that the Supreme Court was not called upon to consider the validity of the provisions contained in Section 127B of the 1939 Act which is equivalent to Section 200 of the 1988 Act. The question before the Supreme Court was regarding the validity of the provisions contained in Section 129A of the 1939 Act equivalent to Section 207 of the 1988 Act. While considering the validity of Section 129A of the 1939 Act, the other provisions contained in the 1939 Act have been noticed and the effect of seizing and not seizing the vehicle or compounding the offence and releasing the vehicle are also considered. That does not mean that the Supreme Court was called upon to consider the validity of Section 127B of the 1039 Act. In para 6 of the Judgment, it has been further held as follows:

“6. None of these reasons bears any scrutiny, if properly examined in the light of the provisions of both the Motor Vehicles Act and the Code of Criminal Procedure, as we are bound to. Indeed, whenever an offence under a law other than the Penal Code is committed and that law does not itself regulate the procedure to be followed, there is no option but to look to the provisions of the Criminal Procedure Code for further action and to weave into a single texture the provisions of the Code and the Special Law. The High Court has totally ignored the provisions of the Criminal Procedure Code and the Judgment stands vitiated on that account. It has therefore, to be set aside. We have explained the context of Section 129A in the scheme emerging from the inter-lacing of the provisions of the Motor Vehicles Act and the Criminal Procedure Code. We do not have the slightest hesitation in rejecting the contention that there is any infringement of the fundamental right guaranteed by Article 19(1)(g) of the Constitution and in upholding the vires of Section 129A of the Motor Vehicles Act.”

12. I will now take up the question as to when an offence is committed under the provisions of the Act, whether it is the exclusive jurisdiction of the Court as per the provisions contained in Section 208 of the Act which is equivalent to Section 130 of the 1939 Act, and also the other provisions contained in Chapter XIII of the Act relating to offences, penalties and procedure. Under the provisions of the Constitution, Judicial powers of the State are to be exercised by the Court. Of course, Article 50 of the Constitution directs that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. However, separation of powers under the Constitution is not inflexible as it is permissible to entrust Judicial functions on. Authorities other than the Courts. But as far as determination of criminal liability of a citizen is concerned, it is not possible to rigid that the same can be entrusted to any Officer or Authority other than the Court. Of course, in this regard also, having regard to innumerable cases and thereby making it difficult for the Courts to decide the same within a reasonable time, certain offences which are in the nature of civil liability, or to be specific civil wrong not criminal in nature, are being entrusted to the Authorities or Officers or the Tribunals other than the Courts. In the case of traffic offences also, the development of law is in favour of entrusting the same to Officers or Authorities other than the Courts, mainly from the point of view of expediency and also of practical necessity. If such cases are to be decided by the Courts only, it will not be possible to effectively enforce the law governing such cases and the punishment will not have its salutary effect; because the cases of such nature will be more in number and as a result thereof, the Courts will not be in a position to decide the same within a reasonable time and thereby the very object of the law itself is likely to be defeated or in other words the very force and the authority of the law and the enforcement of the law will be undermined because of the inability to decide the cases and punish the offenders within a reasonable time. In the ultimate end, it may bring both the Court and the law into disrepute. Even otherwise, in the public interest and also in the interest of administration of Justice, it is also necessary that such offences should be punished on the spot itself. But this does not mean that the punishment of such offences on the spot should be kept completely free from the Court. Compounding of an offence is permitted on the basis that the crime is committed and instead of punishing the offender, he is afforded an opportunity to compound the same. In Black’s Law Dictionary, the expression ‘compounding crime’ has been defined thus:

“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform one who has committed a crime. There are three elements to this offence at common law, and under the typical compounding statute: (1) the agreement not to prosecute; (2) knowledge of the actual commission of a crime; and (3) the receipt of some consideration

The offence committed by a person who, having been directly injured by a felony, agrees with the criminal that he will not prosecute him, on condition of the latter’s making reparation, or on receipt of a reward or bribe not to prosecute.

The Offence of taking a reward for forbearing to prosecute a felony, as where a party robbed takes his goods again, or other amends, upon an agreement not to prosecute.”

Thus it is clear that there can be a compounding only when there is an offence committed; and, it is not possible to hold that there is an offence committed unless there is a determination of the fact that an offence is committed. Such a determination may be by a long drawn process or by examining the relevant facts, and, it need not be by way of elaborate reasoned order. What is necessary is that a person who is empowered to compound must be competent to determine the same. This Court in T. NANJAPPA AND SONS v. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, MYSORE DIVISION, MYSORE, AND ANR., 22 STC 277 while considering the provisions contained in Section 31 of the Mysore Sales Tax Act, 1957 relating to composition of an offence, has held thus:

“6. The essential principles governing the idea of compounding offences as known to the law of criminal procedure are well-known. Offences are defined and punished by the law. Normally or ordinarily, it is the State that has the right or power to punish offences, although individuals might be directly and personally aggrieved by the commission of the offences. The criminal law regards the punishment imposed by the law at the instance of the State on the offender as the proper and sufficient satisfaction, not only for the society as a whole, but also for the individual or individuals personally aggrieved by the offence. But, in the case of certain offences, the law permits the aggrieved person himself to agree to receive or receive satisfaction other than actual punishment or satisfaction in substitution of punishment for his grievance caused by the commission of the offence. That satisfaction is permitted to be substituted for the punishment prescribed by the law by an agreement between the offender and the aggrieved person.

7. In actual event, therefore, compounding of an offence or composition of an offence otherwise than by regular punishment is a matter of agreement between the offender and the aggrieved party which the law permits them to arrive at in substitution of actual imposition of the punishment prescribed by law. According to the relevant provisions of the Code of Criminal Procedure, composition of an offence means an acquittal in the eye of the law.”

Sub-section (2) to Section 200 of the Act also incorporates the aforesaid proposition. It specifically provides that, where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. Therefore, the compounding has the effect of acquittal of a person from the charge. In other words, he is permitted to bargain the acquittal on payment of certain amount. But, nevertheless in the eye of law there is a determination of the fact that a crime has been committed and the conviction or the punishment is waived on receiving certain sum and the offender is treated or is deemed as acquitted of the charge.

13. However, it is the specific stand of the Central Government as revealed from para-3 of the Statement of Objections, which reads as under:

“3. It is further submitted that the challenge to the vires of Section 127B of the Act proceeds wholly on a misconception of the Section and the scheme of the Act. A perusal of Section 127B aforementioned makes it clear that certain offences are made compoundable. It only enables the alleged offender to avoid prosecution by agreeing to pay some consideration. The word “compound” as seen from the Chambers Dictionary means “to settle or adjust by agreement; to agree for a consideration not to prosecute”. It is a matter of agreement. There is no compulsion. If the alleged offender wants to avoid prosecution, he can agree for payment of some amount which is to be levied by the officers. When once that is done, no prosecution shall be launched and under Sub-section (2) even if a prosecution is pending, the offender has to be discharged. Hence, the argument that it confers an arbitrary power on the checking officers has no substance. The authorised officer who is empowered to compound the offence does not act as a Judge as he decides nothing. There is no adjudication. There cannot, therefore, be an appeal against any agreed order or proceeding. In fact, it is a provision which is beneficial and advantageous to the permit holders, drivers and other users of motor vehicles. During the course of a check, if certain irregularities are found, a check report is prepared and a complaint is to be laid in the Court of the Magistrate. At that stage, the alleged offender has chance to seek for compounding for a specified sum and on acceptance of the same, the officers are restrained from laying any prosecution. No right of the petitioners is affected. They are at liberty to prove, their innocence in a trial. On the other hand, a right is conferred to seek for compounding.”

14. It is not possible to agree with the contention that there is no adjudication of the crime. What is intended or what results out of the compounding, according to the learned Central Government Pleader, is that by the agreement of the parties, launching of the prosecution is waived, therefore, there is no determination of the fact as to whether the crime is committed. As already pointed out, composition of an offence can be permitted only on the basis that an offence is committed. The Decision of this Court in the case of T. Nanjappa and Sons, also has laid down in unequivocal terms that, the compounding is done if an offence is committed and the result of compounding is an acquittal of the person who has committed an offence.

15. It is not possible to accept the meaning of the word ‘compounding’ as contained in the Chambers Dictionary as reflecting full effect or as conveying full effect of the word ‘compounding’ or the full meaning of the same. What is compounded is the offence, not the prosecution. It is on compounding the offence, the Authority empowered to prosecute undertakes or agrees not to prosecute. Therefore, it is not possible to accept the meaning given in the Chambers Dictionary as full and complete meaning of the word ‘compounding’. On the contrary, Black’s Law Dictionary states full meaning of the words ‘compounding crime’. In this regard, it is also relevant to notice the statement of law contained in Halsbury’s Laws of England, 4th Edition, 40th Volume, as follows:

“539. Scope and effect of procedure. The following procedure, known as the “fixed penalty procedure”, applies (until replaced by a new fixed penalty procedure by the Transport Act 1982) in any area specified by order made by the Secretary of State and to any person who is found in any occasion by a police constable or an authorised traffic warden having reason to believe he is committing or has committed a statutory summary offence, other than an excluded offence, in respect of a vehicle by (1) the vehicle being on a road during the hours of darkness without the lights or reflectors required by law; or (2) the vehicle obstructing a road, or waiting, or being left or parked, or being loaded or unloaded, in a road; or (3) the non-payment of the charge made at a street parking place; or (4) the vehicle being used in contravention of certain provisions as to the route to be followed by vehicles of the class to which it belongs or as to roads or parts of carriage ways not to be used by them or as to places where U-turns are prohibited to them or as to the conditions under which U-turns may be made by them; or (5) any use of the vehicle in contravention of construction and use regulations which are specified by order; or (6) its being used or kept on a public road without a vehicle excise licence being exhibited in the prescribed manner, in such cases, the constable or warden may give to the suspected person a prescribed notice in writing offering the opportunity of the discharge of any liability to conviction of the offence by payment of a fixed penalty. The fixed penalty for an offence may be paid to a specified justices’ clerk and, if paid, must be treated by him as a fine imposed on summary conviction for that offence. The fixed penalty is £10 or one-half of the maximum amount of the fine payable on summary conviction by a person who has not previously been convicted of the offence, whichever is the less.

Where such a notice has been given in respect of an offence, criminal proceedings may not be taken against any person for that offence by any constable, warden or local authority for twenty-one days from the date of the notice or such longer period, if any, as may have been specified in the notice. If the fixed penalty is paid within such period or before proceedings are begun the person concerned may not be convicted of the offence.”

“540. Affixing penalty notice to vehicle. If, where the fixed penalty procedure applies, a constable or authorised traffic warden finds a vehicle and has reason to believe that there is then being or has been committed in respect of it an offence to which that procedure applies, he may affix the statutory notice to the vehicle, and the fixed penalty procedure applies as if he had found a person reasonably believed by him to be committing the offence, and the affixed notice is deemed to have been given to the person liable for that offence.

A notice so affixed must not be removed or interfered with except by or under the authority of the driver or person in charge of the vehicle or the person liable for the offence; and contravention of this provision is an offence punishable on summary conviction by a fine not exceeding level 2 on the standard scale.”

Thus, it may be noticed from the aforesaid statement of law that a fixed penalty for certain offences may be paid to a specified Justices’ clerk or, if paid, must be treated by him as a fine imposed on summary conviction for that offence. It is also not collected on the spot. The notice of the fixed penalty is served upon the offender who has to pay the same within a particular period to the specified Justices’ clerk. If it is not paid within that period, criminal proceeding will be continued. On the contrary, if it is paid, criminal proceeding is dropped. The result is that the control of the Court over the matter is maintained even though the determination at the initial stage of the commission of the offence, is made by the Officer empowered to levy fixed penalty. If the person concerned does not agree to pay it, he has to face the prosecution before the Court. Whereas in the case on hand, compounding fee which is equivalent to fixed penalty is collected on the spot and thereafter there is no question of the Court having any control over it. In fact, the Court does not come to know of it at any time.

16. Similarly, Bernard Schwartz in his Administrative Law, Second Edition, at Paras 2.22 to 2.24, has stated thus:

“2.22. Criminal Cases: Not too long ago, there appeared to be a strict line between civil, and criminal cases, as far as delegation of adjudicatory authority to administrative agencies was concerned. That line has now become a penumbra, with a borderland in which at least some criminal jurisdiction may be transferred from Courts to agencies. The changing law is underscored by a New York statute removing most New York City traffic offences from the Courts. The statute establishes the New York City Parking Violations Bureau to have jurisdiction of standing, stopping, and parking violation cases. They are to be tried before hearing examiners who issue decisions subject to appeal to an appeals board within the bureau. The bureau is authorised to provide for parking violation penalties (other than imprisonment), including fines of up to fifty dollars. These fines shall be considered civil penalties. Moving violations such as speeding were transferred to a counter part state agency.

In effect, the New York statute sets up “administrative traffic Courts” to assume the jurisdiction exercised over traffic offenses by the criminal Courts. Until recently, one would have questioned the validity of such a delegation of criminal jurisdiction to an administrative agency. Practical necessities today compel an affirmative answer to the question of validity. Candor compels recognition of the virtual breakdown of the New York City Criminal Court as an effective traffic Court. Its enforcement of the traffic law served only to bring both the Court and the law into disrepute. Theoretical objections to the delegation of even minor criminal jurisdiction to an agency have had to yield to the practical necessities of traffic enforcement.

The setting up of such an administrative traffic Court may be but the first step in administrative intrusion into the criminal law. Administrative criminal jurisdiction may still seem, to many violative of basic concepts. Constitutional niceties may, nevertheless, have to give way – as in New York, in the face of the growing inadequacies of the Courts to deal with traffic violations. “One partial solution to the problem of minor offences may well be to remove them from the Court system.” We may expect increasing efforts to transfer other lesser offences, notably those involving violations of sumptuary laws, from Courts to agencies. Thus, the Governor of New York in 1971 called for the transfer of jurisdiction from the Courts of “those offenses and other matters than can be effectively handled outside the Court system”. Administrative “regulation must replace our present futile reliance upon the criminal justice system in such areas.” If these recommendations are followed, the administrative agency may soon spawn progeny that will dwarft the present criminal justice system.

In the field of criminal jurisdiction, the Bill of Rights and comparable state guaranties place limits upon delegation to administrative agencies, limits that do not exist with regard to civil cases. The guaranty of trial by jury would, if nothing else, bar the trial of felony cases by tribunals other than Courts, In addition, as will be seen in Section 2.26 infra, administrative agencies may not be vested constitutionally with the power to impose imprisonment as a penalty. If jurisdiction, such as that over traffic offenses, is delegated to agencies, punishment must be limited to monetary penalties. Transfer of criminal jurisdiction from Courts to agencies means elimination of imprisonment as punishment for the offences concerned, as well as their removal from classification as crimes, with the stigma and consequences theretofore attached.

A caveat should, however, be interposed in the face of the current willingness to abandon the traditional reluctance to confer criminal jurisdiction upon administrative agencies. The need in areas like traffic offences scarcely justifies stripping the Courts of a major part of their criminal competence. Perhaps conduct such as gambling and prostitution should no longer be considered of such harmful consequence to society as to justify rigid prohibition by law. But while such acts remain offenses, we should hesitate to remove the safeguards of the criminal law from those charged. What is to be feared is that the present crisis in the criminal Courts will exert a kind of pressure that will make what was previously dear seem doubtful, and before which even seemingly settled administrative law principles will have to bend too far.”

“2.23. Sanctions for Regulations: Statutes enacted by the legislature prescribe Rules that must be followed by those covered; the alternative is to risk the sanctions imposed upon violators. Administrative Rules and Regulations also contain prescriptions of conduct; may they be backed by the same sanctions?

The sanction behind administrative Rules and Regulations is normally a penalty provided by the legislature. It is customary to provide, in the enabling statute, that a violation of a regulation promulgated under it will be punishable as a criminal offense. Such a provision was upheld in the leading case of United States v. Grimaud. Acting under a statute authorising him to make Rules and Regulations to regulate the occupancy and use of the federal forests, the Secretary of Agriculture issued regulations prohibiting grazing without a permit. Defendants were indicted for grazing sheep without a permit under the statutory provision that any violation of the statute, or of the Rules and Regulations promulgated thereunder, should be punishable as an offense. They claimed that Congress could not thus give an administrative officer the power to define crimes. According to the Court, however, a Violation of the regulations “is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty.”

The contention that the statute did delegate the power to define crimes is hard to rebut logically. The act of grazing sheep in federal forests, theretofore wholly legal, became a crime when the Secretary issued his regulation. The Grimaud holding that an administrative regulation may be backed by criminal sanctions rests upon necessity. Laws without sanctions are empty words. If violation could not be made a criminal offense, it would mean that agency Rules and Regulations did not have “teeth”. They could be disobeyed with impunity and make the effective exercise of rule making power impossible.

Grimaud, as seen, rests upon the fact that the statute made the violation a crime and fixed the penalty. Some statutes have gone further and authorised agencies to prescribe penalties for violation in the Rules and Regulations themselves. In one case the statute provided that violation of the regulations was to be a misdemeanor if the agency so provided by regulations. These delegations were ruled invalid. The power to prescribe penalties by Rule may not be conferred upon administrative officials; any penalties for disobedience of Rules and Regulations must be fixed by the legislature itself. This principle dates back to Stuart times and the objection to penalties imposed by the Crown. If the principle is not followed, the penalty is prescribed, not by royal proclamation but by the prerogative of some administrative official.”

“2.24. Remedies: Analytically speaking, the adjudicatory authority exercised by agencies is similar to the judicial power exercised by Courts. The latter involves not only the jurisdiction to hear and decide cases but also that to grant the remedies sought in actions brought in the Courts. May authorities to grant these remedies be conferred upon administrative agencies?

The basic remedy in the law Courts is the Judgment for money damages. A century ago, the Courts would have denied that anybody other than a Court might be given the power to grant damages: The money Judgment was deemed the very essence of judicial power. Here, too, workers’ compensation showed the inadequacy of the traditional approach. The compensation award was the administrative equivalent of the money Judgment, and it is logically difficult (once delegation of the power to award compensation is recognised) to distinguish other administrative morley awards as beyond the legitimate reach of legislative delegations. Compensation awards may be fixed by statutory schedules; yet that hardly alters the nature of the administrative remedy and its similarity to the money Judgment.

There have been other instances of administrative money awards – where the amounts awarded were left to the agency concerned – which have been upheld. Perhaps the best known are reparation orders of the Interstate Commerce Commission (awarding shippers reparation for injuries caused them by carrier violations of the law) and back pay awards of the National Labor Relations Board (under its power to order reinstatement, with back pay, of employees discharged in violation of the statute). These delegations of authority to award money have existed for years and are similar to Courts’ power to award damages; the amounts awarded are, except in name, damages to compensate for monetary harm.

The Courts today are willing to accept the idea as well as the fact of agency power to award damages. The guiding principle was stated in a New Jersey case upholding the authority of a civil rights agency to order reimbursement for out-of-pocket loss suffered by an aggrieved individual in a housing discrimination case: “at this advanced date in the development of administrative law, we see no constitutional objection to legislative authorization to an administrative agency to award, as incidental relief in connection with a subject delegable to it, money damages, ultimate judicial review thereof being available.” Where making someone whole for damages suffered is part of the vindication of the public policy that in agency enforces, it may be given the authority to award damages as an incident of enforcing the policy.

The Courts not only possess the power to award damages; the judicial process has available to it a method of enforcing a money Judgment – i.e., through execution issued from the Court to the sheriff or other appropriate officer directing him to satisfy the Judgment out of property or income of the Judgment debtor. An agency may not be given the power to enforce its money awards by administrative execution or any comparable method. Administrative money awards are normally enforced through the Courts, by actions to recover the money awarded. Another possibility, more rarely used, is to give the agency award the legal effect of a money Judgment for enforcement purposes, so that execution to enforce it may be levied by the sheriff or other appropriate enforcement officer.

In addition to their power to award damages, Courts possess authority to issue injunctions. Administrative agencies may also be given injunctive power, though the name “injunction” is not used. The cease and desist orders that may be issued by most regulatory agencies are the administrative equivalents of prohibitory injunctions. Agencies may also be given the power to issue affirmative orders (e.g. the NLRB authority to order reinstatement and such other affirmative action as will effectuate the policies of the statute) that are the administrative counterparts of mandatory injunctions.

Injunctions issued by Courts are enforced by the contempt power. It has been asserted that history supports the view that the contempt power is not of a judicial nature, since it is possessed by legislatures. Such an assertion misreads history. Parliament possessed the power because it had the status of a Court in early English law, and American legislatures naturally succeeded to the power despite their different status. That all adjudication need not be judicial does not mean that there are not judicial powers that must be exercised by Courts. The contempt power is the outstanding example of such a power. The contempt power is so drastic, involving power over the person as a sanction, that its exercise should be limited to Courts alone.

The Supreme Court has stated that a body like the Interstate Commerce Commission could not, under our system of Government and consistent with due process, be vested with contempt authority. A recent New Jersey decision holds that a statute giving workers compensation hearing officers the power to punish for contempt is unconstitutional. According to the Court, such a statute constitutes a patent violation of the separation of powers. There is also state authority to the contrary, particularly where the state constitution expressly confers contempt power on the agency concerned. These state cases can be explained only as aberrations, with the Judges unaware of the awesome nature of contempt power and the danger in allowing its exercise by non-responsible bureacrats, who are not bound by the institutional traditions and safeguards that protect those appearing in Courts.

The method of enforcement first provided for administrative cease and desist orders was an action by the agency for a Court order directing enforcement. Violation of that order is punishable as a contempt, not of the agency, but of the Court. This method necessitates a two-step administrative process before the order has effective legal consequences. To avoid it, there was developed the more common method of providing, in the statute, a sanction for violation, e.g., the provision that any violator of a Federal Trade Commission order shall pay a civil penalty of $5,000 for each violation.

The burden here is shifted to the private individual, who will suffer the sanction for disobedience, unless the commission order is set aside on judicial review, without any need for an . agency enforcement action. In the case of either method, the agency “injunction” is not self-enforcing, the way a Court injunction is through the contempt power of the Court concerned. The interposition of a Court is required before the agency injunctive order has coercive consequences.”

2.26. Arrest and Imprisonment: If money penalties may be imposed by agencies as well as Courts, the same is not true of the penalty of impriosonment. Imprisonment may be imposed as a penalty only if there has been a conviction and sentence by a Court, after a trial with all the constitutional safeguards that govern criminal proceedings. Such was the holding in WONG WING v. UNITED STATES [163 U.S. 228 (1896)] – a case more recently termed “one of the bulwarks of the Constitution” – and it has never since been questioned.”

Thus from the aforesaid statement of law, it is clear that jurisdiction relating to traffic offences can be entrusted to administrative agencies when the punishment is limited to monetary penalties and not imprisonment. It is based on the principle that imprisonment as a punishment is solely a judicial function and it cannot be entrusted to administrative agencies. The need to entrust the jurisdiction to administrative agencies to deal with the offences falling in the area like traffic offences scarcely justifies stripping the Courts of a major part of the criminal competence. Thus Schwartz also advocates the authorisation of officers other than the Courts in respect of traffic offences punishable with penalties only. But the offences which involve imprisonment by way of punishment, compounding of the same by Officers other than the Courts, is not favoured by the author. Under the Act, many of the offences are punishable with imprisonment or fine or both. The offences punishable under Sections 179(2), 180, 181, 182, 184, 189, 192 and 196 are also punishable with imprisonment or fine or with both.

17. The validity of Rule 259(2) of the Rules, in so far it enables the Officers or Authorities of the Motor Vehciles Department of and above the rank of Inspector of Motor Vehicles to exercise the power under Section 200 of the Act should not detain us any longer.

18. Section 200 of the Act is an enabling provision. It enables the State Government to authorise such Officers or Authorities by Notification in the Official Gazette to exercise the power of compounding the offences specified in that Section for such amount as may be specified in the Notification. Therefore, unless the State Government in exercise of the power conferred on it under Section 200 of the Act specifies the Officers or Authorities by a Notification published in the Official Gazette to compound the offences for the amounts specified in the Notification, the Officers or Authorities of the Motor Vehicles Department of and above the rank of Inspector of Motor Vehicles would not be entitled to compound the offences mentioned in Section 200 of the Act. This power of the State Government to fix the amount for compounding the offences and specify the Officers or Authorities to exercise the power of compounding cannot also be delegated to any other authority. Sub-rule (2) of Rule 259 provides that “Any Officer of the Motor Vehicles Department of and above the rank of Inspector of Motor Vehciles shall exercise the powers under the provisions of Section 114, 130, 132, 133, 134, 136, 158, 200, 203, 204, 205. 206 and 207 of the Act.” This Rule insofar it covers Section 200 of the Act is not at all operable because Section 200 of the Act, as already pointed out, only enables the State Government to specify by Notification published in the Official Gazette the Officers or Authorities who are entitled to compound the offences for the amounts specified in the Notification. If no Notification is issued by the State Government in terms of Section 200 of the Act, no Officer or Authority is entitled, in law, to compound the offences mentioned therein. The Officers of the Motor Vehicles Department of and above the rank of Inspector of Motor Vehicles, as per Sub-rule (2) of Rule 259 of the Rules, can exercise the power to issue the Notification under Section 200 of the Act specifying the Officers or Authorities who are entitled to compound the offences for the amounts mentioned therein. Such situation will lead to chaos. It is apparent that inclusion of Section 200 in Rule 259(2) of the Rules is a mistake.

19. However, Sri P.P. Ramesh, learned Government Pleader has tried to contend that Sub-section (1) of Section 200 of the Act should be read as enabling the State Government only to specify the amount for compounding the offences mentioned therein by publication of a Notification in the Official Gazette and not the Officers and the Authorities who are specified in exercise of its Rule Making Power under Rule 259(2) of the Rules. The learned Government Pleader has placed reliance on Section 213(3) of the Act which enables the State Government to make Rules to regulate the discharge by Officers of the Motor Vehicles Department of their functions, the duties to be performed by them the powers to be exercised by them, and the conditions governing the exercise of such powers.

20. It is not possible to read Section 200 of the Act in the manner the learned Government Pleader wants the Court to read. The words “by such Officers or Authorities” cannot be read in isolation with the words “and for such amount as the State Government may, by Notification in the official Gazette specify in this behalf.” What are to be compounded are the offences punishable under the various provisions, as mentioned in Section 200 of the Act. The Officers or Authorities who are entitled to compound and the amounts for which the offences are to be compounded are to be specified by the State Government under the Notification issued for compounding the offences punishable under the various Sections as specified in Section 200 of the Act. Therefore, the contention of Sri Ramesh, learned Government Pleader, is rejected. Accordingly, it is held that the power under Section 200 to specify the Officers and Authorities to compound the offences mentioned therein for the amounts specified is the power which cannot be delegated. Hence the inclusion of Section 200 in Rule 259(2) of the Rules is ultra vires of the Rule Making Power of the State Government. Section 200 if read as part of Rule 259(2), it does not give any meaning because the power under Section 200 is to specify the Officers or Authorities of the Motor Vehicles Department of and above the grade of Inspector of Motor Vehicles. As such they cannot exercise the power under Section 200 of the Act. Hence Rule 259(2) of the Rules in so far it includes Section 200 has to be struck down.

21. The next question for consideration is as to whether Section 200 of the Act can be read only as enabling the State Government to specify the Officers or Authorities to compound the offences under Section 200, or it can be read down.

22. There is no doubt that Section 200 in express terms empowers the State Government to specify the Officers or Authorities who are entitled to compound the offences mentioned in Sub-section (1) of Section 200 of the Act and for the amount to be specified by publishing the Notification in this behalf in the Official Gazette. I have already pointed out that compounding of offences involves determination of three elements viz., (1) that the offence has been committed; (2) that there is an agreement to compound; and (3) receipt of the consideration for compounding the offence. It has also been pointed out that the determination of criminal liability unlike the civil liability cannot be completely taken out of the purview of the Court. The offences which do not involve public safety, endanger public order and public peace and tranquility can be permitted to be compounded by the administrative agencies because the interest involved will be private and not public, whereas in the offences against public safety, public order which are criminal in nature, there shall have to be a control of the Court over such offences. It is true that several traffic offences are such that in the nature of things, it may not be in the interest of the public and administration of Justice to try them in Courts. It will take long time to decide such innumerable cases in a regular Court on account of those cases other cases will also suffer. Further long pendency of such cases will lead to failure of Justice and will take away the very efficacy of the authority and the object of law and will bring disrepute to Law and Justice Department, in these cases, determination of the offences and the imposition of punishment are required to be made without much loss of time. Taking this into consideration in England, law authorises the officers on the spot to register the offences and give a notice of compounding to the offender and give him time to pay the compounding fee specified therein with a specified time to a specified Justice’s clerk. If he fails to pay the amount, he is required to suffer separate prosecution. On the contrary, if he accepts the offence and pays the compounding fee to the specified Justice’s clerk, the proceeding will be closed. Such a procedure will meet the requirement of expediency and also helps to have the cases disposed of immediately and at the same time gives time to the offender to consider whether to contest the proceeding or to accept the offer of compounding the offences. In a way it complies with the requirement of fair opportunity of hearing because it gives sufficient time to the offender to decide whether to contest or not and it also satisfies another requirement that the determination of criminal liability is not to be completely taken out of the purview of the Court because on accepting the offer and by sending the compounding fee to the Court, the offender will not only be admitting the guilt but also agrees to compound. Thus the control of the Court over the offence is maintained. Whereas in the case on hand, the procedure prescribed under the impugned Section 200 and the Notification issued thereunder is that no sooner the offence is alleged, either he has to accept the offer of compounding and pay the amount on the spot or leave his vehicle in the custody of the Officer. No time is allowed to enable him to consider whether to admit the guilt by accepting the offer of compounding or to contest the proceeding. A vehicle operator, whether it be of 2 wheeler or 4 wheeler, will be straight-away told by the Officer or Authority specified under the Notification issued under Section 200 of the Act that he has committed such and such an offence, therefore, he is punishable for such offence or offences and instead of going through the proceeding, it is open to him to pay so much of amount as compounding fee. According to the procedure evolved under the impugned Notification, a person has no option but to agree and pay the amount of compounding fee and sign the agreement of compounding or else leave the vehicle to the custody of the Officer or the Authority. Thus the procedure prescribed is very very oppressive and it does not give any scope to think one way or the other. If he refuses to compound the offence, the vehicle will be seized. Thus he will be under a threat of seizure of the vehicle which not only deprives him of the use of the vehicle but also results in economic loss and causes great inconvenience. Consequently, he would be left with no option but to agree for compounding. No liability can be allowed to be imposed on any Citizen or a person – either criminal or civil – under our legal system without affording reasonable opportunity to the concerned person to have his say in the matter. A person on whom criminal liability is foisted, must have a reasonable time to meet the same. Therefore, I am of the view that Section 200 of the Act should not be read so as to empower the State Government to evolve a procedure of the nature contemplated in the impugned Notification. It should be read as empowering the State Government to specify the Officers or Authorities who are entitled to offer the compounding fee for the offences specified in Section 200 and give him a notice of compounding specifying the time within which the compounding fee is to be paid to the Court having jurisdiction over the offence or over the area where the offence is committed as the case may be. If Section 200 is read in this way, it will not only eliminate the oppressive procedure evolved under the impugned Notification but will not also give any scope for evolving a procedure oppressive in nature as has been done under the impugned Notification. Under the Constitution any procedure evolved or prescribed for trial or determination of any civil or criminal liability must be fair and reasonable and must not be oppressive or arbitrary. Any procedure evolved under any law, if it is oppressive in nature, is liable to be struck down as being violative of Article 14 of the Constitution. It is also permissible for the Court and it is one of the cardinal principles of the Rules of Interpretation that to save a statute from the vice of unconstitutional, to read down the same so as to be in conformity with the Constitution. Therefore, I am of the view that Section 200 of the Act should be read in the manner as stated above. In that event, the procedure to be followed for compounding will not be oppressive.

22.1. In this regard, alternatively it is contended that in case Section 200 of the Act is interpreted in the aforesaid manner, it may be further held that in the event the person to whom the notice issued for compounding the offence chooses not to compound, the burden be placed on him to prove that he has not committed the offence alleged against him, as otherwise it will not be possible to effectively enforce the law and the occurrence of traffic offences cannot be mitigated or reduced. It appears to me that it is not possible to accept this contention. Imposition or prescription of such a condition would amount to legislation and it does not lie within the purview of Judicial Review. However, it may be observed that it is open to the Legislature to impose such a condition by way of suitable amendment.

23. In the light of the interpretation placed by me on Section 200 of the Act, the Notification dated 13-11-1986 Annexure-A cannot be sustained because it does not give scope for the alleged offender even to have a reasonable time to consider whether the compounding of the offences as offered should or should not be accepted. It has also the effect of taking away the offences completely from the purview of the Court.

24. The Act empowers the Court to try the offences mentioned in the Act, record conviction and punish the accused. Therefore, it cannot be completely taken out of the purview of the Court. Atleast the control of the Court should be retained to the extent of payment of compounding fee into the Court, if the offender accepts the offer to compound. The control of the Court is maintained by making the accused to send the compounding fee to the Court or else to face the prosecution.

25. In the light of the above conclusion reached by me, I will now consider the question whether the Officers or Authorities authorised under the impugned Notification dated 13-11-1986 are competent to determine that the offence is committed to enable them to offer compounding of the same.

26. The contention urged on behalf of the petitioners is that even the Officers authorised under the impugned Notification are not the Competent Officers so as to exercise the power of adjudication and determination that an offence has been committed under the Act. In this regard, it is relevant to notice that Section 207 of the Act empowers a Police Officer or other person authorised in this behalf by the State Government to seize and detain the vehicle if he has reason to believe that the motor vehicle has been or is being used in contravention’ of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by Sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. This provision is similar to Section 129A of the Motor Vehicles Act, 1939. The said Section has been held as valid by the Supreme Court in Sardar Ali’s case. In order to seize a vehicle, the Police Officer or other person authorised under the Act has to be satisfied that the vehicle has been or is being used in contravention of the provisions of the Act which contravention is punishable under the Act. Similarly, in the case of compounding also, the concerned Officer or Authority empowered under the Act has to be satisfied that the offence proposed for compounding has been committed. In this regard, the learned Counsel for the petitioner contended that the Inspector of Motor Vehicle is a person who is not trained in law nor can he be expected of such calibre so as to understand the intricacies of the various provisions of the Act. Therefore, such an officer cannot be authorised to exercise the power of compounding under Section 200 of the Act.

27. Power of compounding is a Judicial power. Therefore, an Authority empowered must be competent so as to inspire confidence. The learned Counsel for the petitioners has placed reliance on a Decision of the Supreme Court reported in A.I.R. 1987 S.C. 386. In S.P. Sampathkumar’s case, it is held that an effective alternative institutional mechanism or arrangements for Judicial Review can be set up without violating the Basic Structure Doctrine provided the alternative institutional mechanism or arrangement for Judicial Review is not less efficacious than the High Court. (See para 2)

28. There is no doubt that the power of compounding is a part of the power of adjudication of the offence alleged to have been committed; but it is always open to the person to whom the offer is made to compounding of the offence, to accept or reject it. In case he refuses to accept the offer of compounding, the case will be taken up by the Court and tried in accordance with law. Therefore, in the light of the interpretation placed by me on Section 200, the option is left to the person to whom the offer is made to send his acceptance along with the compounding fee to the Court. In case he is satisfied that he has not committed any offence, it is open to him not to accept the offer of compounding and face the trial. Hence I am of the view that the Officers empowered under the Notification including the Inspector of Motor Vehicles cannot be held to be incompetent to exercise the power to offer for compounding the offences specified in Section 200 of the Act. This conclusion of mine should be read in the light of and subject to, the interpretation placed by me on Section 200. In addition to this, under Sub-section (4) of Section 213 of the Act, the Central Government has already issued a Notification bearing No. SO 443(E) dated 12-6-1989 prescribing the minimum qualifications which an Inspector or Assistant Inspector of Motor Vehicles should possess in order to qualify for exercising the power of compounding under Section 200 of the Act. It is submitted by the learned Government Pleader that the Inspectors of Motor Vehicles and Assistant Inspectors of Motor Vehicles appointed by the State Government even prior to the issuance of the said Notification do satisfy the qualifications prescribed therein. Hence it is further submitted that the Officers specified under the impugned Notification dated 13-11-1986 satisfy the qualifications prescribed under the aforesaid Notification dated 12-6-1989 issued by the Central Government under Section 213(4) of the Act.

29. As far as the contention based on Article 19(1)(g) of the Constitution is concerned, it is not possible to hold that the provisions contained in Section 200 of the Act and the Notification dated 13-11-1986 issued thereunder are violative of Article 19(1)(g) of the Constitution. Fundamental Right to practise any profession or to carry on any occupation, trade or business is not an absolute right. It is subject to regulation. Section 200 of the Act empowers the State Government to authorise any Officer or Authority to compound the offences mentioned therein. The validity of the provisions making certain acts penal and further prescribing the punishment under the various provisions as specified in Section 200 of the Act is not challenged. The power of compounding as provided by the Act is a part of adjudication of the criminal liability. Therefore, it is not possible to hold that Section 200 of the Act as interpreted, imposes an unreasonable restriction on the Fundamental Right of the petitioners to carry on their occupation, trade or business. Similarly it is not possible to hold that the Notification dated 13-11-1986 is violative of Article 19(1)(g) of the Constitution. Hence the contention based on Article 19(1)(g) of the Constitution is rejected.

30. In the light of the conclusions reached by me in the preceding paragraphs, Point Nos.1 and 2 are answered as follows:

i) Section 200 of the Act has to be read as enabling the State Government to authorise the Officer or Authority to offer to compound the offences mentioned therein committed either before or after the coming into force of the Act and before or after the institution of the prosecution by serving a notice on a person, in the opinion of the Officer or Authority empowered under the Act, has committed an offence or offences mentioned in Section 200 to offer to compound on payment of specified amount of fine, within the specified time into the Court having jurisdiction over the offence or the area where the offence is committed as the case may be, failing which the person named in the notice is liable to be prosecuted for the offence specified in the notice. If read in this way, the Section 200 will not be violative of Article 14 of the Constitution.

ii) The Notification bearing No. FTD 18 TMR 85 dated 13-11-1986 is not in accordance with the interpretation placed on Section 200 of the Act and evolves a procedure which is oppressive in nature as indicated above, therefore, it is violative of Article 14 of the Constitution. Hence it is liable to be struck down.

POINT NO.3

31. The Tourist vehicles after the coming into force of the Act and the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the ‘Central Rules’) are to be operated as per Rule 85 of the Central Rules. The grievance of the petitioners is that the tourist vehicles are being seized and the operators are being compelled to compound the offences in terms of Entry No. 16 of the Notification dated 13-11-1986 even though there is no violation of the provisions contained in Rule 85 of the Central Rules. Entry No. 16 in the aforesaid Notification relates to plying of the vehicles without a valid permit under Section 42(1) read with Section 123 of the 1939 Act, equivalent to Sections 66 and 192 of the Act.

32. The contention involves interpretation of Rule 85 of the Central Rules. It is held on point No. 2 that the Notification dated 13-11-1986 is violative of Article 14 of the Constitution and as such it is liable to be quashed. Therefore, it is not necessary to determine this point because in the absence of the Notification dated 13-11-1986, the contentions raised under this Point do not arise. Hence Point No. 3 is left open.

POINT NO.4

33. As far as refunding of the compounding fee levied and collected from the petitioners under the Notification dated 13-11-1986 is concerned, it is open to such of the petitioners who have produced the order/s of compounding in these Petitions and paid the compounding fee, to claim refund of the same. However, in respect of others who have not made such prayers, it is held that they are not entitled to re-open the case/s and claim refund. Similarly, the persons who have paid the compounding fee and have not come forward and made a grievance, in the interest of the public revenue and also to avoid innumerable claims, it is just and necessary to hold that they are not entitled to reopen the claims and those cases need not be reopened except the cases in which the petitioners have paid the compounding fee and sought for a direction to refund the same.

34. For the reasons stated above, these Writ Petitions are allowed in the following terms:

i) Section 200 of the Act is not violative of Article 14 of the Constitution if read as follows:

“Section 200 of the Act has to be read as enabling the State Government to authorise the officer or authority to offer to compound the offences mentioned therein committed either before or after the coming into force of the Act and before or after the institution of the prosecution by issuing a notice to a person or persons who is or who are in the opinion of the Officers or Authorities who are empowered under the Act that the offence/s mentioned in Section 200 is/are committed, offering to compounding of the offence/s specifying the amount to be paid to the Court having jurisdiction within a specified date and time failing which the person/s named in the notice will be prosecuted in the Court and to appear before the Court on the specified date and time.”

ii) The Notification bearing No. FTD 18 TMR 85 dated 13-11-1986 is not in conformity with the interpretation placed on

Section 200 of the Act and evolves a procedure which is oppressive in nature as indicated in the body of this Order, as such it is violative of Article 14 of the Constitution. Hence the aforesaid Notification is quashed. It is open to the State Government to issue a fresh Notification under Section 200 of the Act in conformity with the interpretation placed on Section 200 of the Act.

iii) Point No. 3 is kept open.

iv) It is open to such of the petitioners who have produced the orders of compounding and paid the compounding fee, to claim refund of the same within six months from today.

v) In the facts and circumstances of the case, there will be no order as to costs in these petitions.

35. Sri P.P. Ramesh, learned Government Pleader, and Sri Shailendra Kumar, Senior Standing Counsel for the Central Government are permitted to file their Memo of Appearance on behalf of the respondents within six weeks.

36. After the pronouncement of the above Order, it is submitted by Sri P.R. Ramesh, learned Government Pleader and Sri Shylendra Kumar, learned Senior Standing Counsel for the Central Government that as the provisions of Section 200 of the Act have been read down and the Notification issued under Section 200 of the Act has been struck down, to enable the State Government and the Central Government to take up the matter in appeal, status quo prevailing as on today may be continued for a period of six weeks.

37. Since the Decision rendered by me will have serious consequences, it is just and necessary to maintain the status quo to enable the respondents to have the Decision tested in the Appeal.

38. Accordingly, the operation of the order passed in these Petitions is stayed on the same terms and conditions of the various Interim Orders passed during the pendency of these Petitions till 9-11-1990.