STATE Vs. GHULAM NABI MISTRI

JUDGEMENT

(1.) THE learned Sessions Judge Baramulla has made this reference in the following circumstances:

(2.) TWO questions have been raised by the learned Sessions Judge in this reference; (1) whether it was competent for the judicial Magistrate to pass an order in regard to the interim custody of the driving licence which the police had seized during investigation; and (2) whether it was proper and legal on the part of the Superintendent of Police to have taken away the seized driving licence from the officer in charge of Investigation and forward the same to the licencing authority for its cancellation without the authority of the Court. The learned Sessions Judge has observed that it was within the power of the Judicial Magistrate to make an order of interim custody of the document in exercise of power vested in him under Section 523, Criminal P. C. It was the court alone that had the authority to pass an order with regard to the disposal of the document seized by the police during investigation. Further, the police investigating agency or for the matter of that even the Superintendent of Police had no authority to pass on the driving licence to the licencing authority for its cancellation without the leave of the court. In a matter pending adjudication before a court of law it was not competent for the licencing authority to record a finding against the accused that he had used the vehicle for the commission of a cognizable offence which matter was still sub judice. Such an observation of the licencing authority could be premature and might ultimately be found inconsistent with the finding that the court may arrive in the case. According to the learned Judge proceedings initiated by the Police militated against the very principle enshrined in Section 523 of the Criminal P. C. He has therefore sought that this Court may pass appropriate orders in the case.

(3.) APPEARING for the State the Additional Advocate General has not supported the reference. According to him it was within the power of the licencing authority to cancel the driving licence of the accused when he had found that the plying of the vehicle by the accused could endanger public safety and this he could do under Sub-clause (3) of Section 15 of the Motor Vehicles Act. The order passed by the licencing authority was made in pursuance of Sub-clause (3) of Section 15 of the Motor Vehicles Act and it did not therefore in any way interfere with the proceedings pending before the court. It was wrong, it is submitted, on the part of the Judicial Magistrate to have ordered the delivery of the driving licence to the accused at the interim stage when the case had not as yet started and the matter was sub judice.