ANNAPURNA PARIJA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner is the owner of a motor vehicle bearing registration number OHU 8052. The said vehicle while operating on the route Cuttack to Paradeep was checked by the Officer-in-Charge, Tirtol Police Station on 13-7-1981 and it was found that the tax for the quarter had not been paid. The Officer-in-Charge, Tirtol Police Station, submitted a prosecution report to the Sub-Divisional Judicial Magistrate, Jagatsinghpur, indicating that the petitioner had violated the provisions of S. 13 of the Orissa Motor Vehicles Taxation Act, 1975 (hereinafter referred to as the "Act"). On the basis of the said prosecution report, the learned Magistrate took cognisance and on receipt of summons from the Magistrate, the petitioner entered appearance. The petitioner thereafter filed an application before the learned Magistrate that the tax in question had been paid on 14-7-1981 and, therefore, no offence had been committed by her. It was further contended in the said application that the Sub-Divisional Judicial Magistrate had no jurisdiction to take cognisance of an offence under S. 13 of the Act. The learned Sub-Divisional Judicial Magistrate by his order dated 3-4-1984 came to hold that he had no jurisdiction to take cognisance of an offence under S. 13 of the Act, but ultimately he exercised his suo motu power and took cognisance of the offence under S. 20 of the Act. The petitioner carried a revision before the learned Sessions Judge who had fixed the hearing of the case to 14-8-1984. On 14-8-1984 on account of 'Orissa Bundh', the petitioner's counsel could not be present in Court. On the next working day, i.e. on 16-8-1984, the petitioner's counsel came to learn that the Sessions Judge had decided the revision on merits in absence of the petitioner and her counsel and had dismissed the revision. The petitioner has, therefore, invoked the extraordinary jurisdiction of this Court to quash the cognisance and the criminal proceeding itself.

(2.) Mr. Samantaray appearing for the petitioner raises only one contention that the tax for the period (sic) provided under S. 13 of the Act, no offence has been committed by the petitioner and as such the cognisance taken by the learned Magistrate for an offence under S. 20 of the Act is bad in law. This contention of Mr. Samantaray is based upon the language used in S. 13 of the Act. For the sake of convenience, S. 13 is quoted herein below in extenso : -

(3.) Under S. 3 of the Act tax is leviable on every motor vehicle used or kept for use within the State at the rate specified in the schedule. Thus, under S. 3, an owner of a motor vehicle is liable to pay tax even if the vehicle is not actually used on the road. S. 4 of the Act provides that the tax shall be paid in advance within such time and in such manner as may be prescribed, by the owner of a vehicle. Thus, payment of tax for a motor vehicle is in the nature of an advance tax. S. 10 of the Act provides that when any motor vehicle is intended not to be used for any period, then the owner of the vehicle must give prior intimation of discontinuance of use of the vehicle to the Taxing Officer in the form of an undertaking duly signed by him and sub-sec. (2) thereof provides that if during such period, the vehicle is found being used or kept at a place in contravention of the undertaking, then for the purposes of the Act, it must be deemed to have been used throughout the said period. S. 17 of the Act authorises a police officer not below the rank of a Sub-Inspector or an officer of the motor vehicles department not below the rank of Junior Inspector of Motor Vehicles or any other officer specially authorised by the Transport Commissioner in that behalf, to stop any vehicle in any public place and to cause it to remain so long as necessary for the purpose of satisfying himself that the amount of tax in respect of such vehicle has been paid. Sub-sec. (2) of S. 17 authorises the concerned officer proceeding under sub-sec. (1) to seize the vehicle and detain the same in case tax has not been paid in accordance with the provisions of the Act. S. 20 of the Act provides that whoever uses a motor vehicle or keeps a motor vehicle for use without having paid the tax in respect of such vehicle, is liable to be convicted and shall be punished with fine, as provided in the said section. A combined reading of all these provisions referred to earlier makes it absolutely clear that if a vehicle is used or kept for use without payment of tax, then an offence is committed by the person who uses the said vehicle, within the meaning of S. 20 of the Act. The grace period provided for in S. 13 to pay tax within fifteen days from the due date of payment is only relevant for the purpose of levy of penalty, that is, no penalty can be levied within that period of fifteen days even if tax has not been paid on the due date of payment, but that does not mean that no offence is committed during that period. An offence is committed under the Act the moment a vehicle is used or kept for use without payment of any tax by the due date of payment. Obviously, therefore, on 13-7-1981, the vehicle in question having been found to have been used without payment of tax, an offence has been committed and, therefore, the learned Magistrate was fully within his jurisdiction to take cognisance of the offence under S. 20 of the Act.