The powers of a Magistrate under Section 457 Cr.P.C. are not ousted by the provisions of Section 207 of the Motor Vehicles Act, 1988, or the Motor Vehicles Taxation Act, 1951.

1. - Instant miscellaneous petition impugns the order dated December 10, 1997 of the Additional Civil Judge (Junior Division) and Judicial Magistrate No.1 Dholpur, whereby the application purporting to have been filed under section 457 Cr.PC. was dismissed.

2. Brief resume of the facts is that transport department on November 29, 1997 seized Truck No. M.K.W. 7581 belonging to the petitioner on the ground that it was found plying without Registration Certificate OTT (one time Tax). The petitioner submitted an application for releasing the said truck before the learned Magistrate. The said application was dismissed by the learned court below placing reliance on State of Rajasthan v. Mohd. Nisar (S.B. Criminal Misc. Petition No. 675 of 1995), decided on 17th July, 1997.

3. I have heard Mr. Anil Jain, learned counsel appearing for the petitioner and Mr. S.R. Yadav, learned Government Advocate and carefully analysed the legal position.

4. The principles that are deduced after scanning the relevant provisions of the Motor Vehicles Act, 1988 (for short the M.V. Act) and the Motor Vehicles Taxation Act, 1951 (for short the M.V. Taxation Act) may be summarised thus -

(i) Plying motor vehicle without permit flouting the provisions of section 66(1) is an offence punishable, under section 192 A of the M.V. Act.

(ii) Authorised persons have powers to seize and detain such vehicle under section 207 (1) of the M.V. Act. They have, however, discretion only to seize the certificate of registration of the vehicle instead of detaining the vehicle itself.

(iii) Under sub-section (2) of Section 207 the owner of the vehicle may apply for the release of the vehicle before the transport authority or any other authorised officer.

(iv) Under section 208 of the M.V. Act, the court taking cognisance of the offences is vested with the power to dispose of the cases summarily. It is directed that if the accused pleads guilty through money order coupon and remit fine, no further proceedings shall be taken against him.

(v) Under Section 17 of the M.V. Taxation Act authorised person may stop the vehicle for the purpose of satisfying themselves that the amount of tax is paid or not. When the tax is found due the vehicle may be detained and seized, where the vehicle so seized is non-transport, it may be released after obtaining a bond for a sum not exceeding Rs. 500/- for depositing the tax within the period specified in the bond.

(vi) Non-payment of tax is an offence under section 11 of the M.V. Taxation Act.

(vii) No court inferior to that of a Magistrate of Second Class shall try any offence punishable under the M.V. Taxation Act. (Emphasis supplied)

5. Two conditions must be fulfilled before the power under section 457 Cr.P.C. can be exercised, the first condition being that the seizure of the property is reported to the magistrate and, secondly the property is not produced before the criminal court in an enquiry on trial. The placing of the report by the police or other officer before a magistrate is not condition precedent to the entertainment of an application under the section. If the fact of seizure is brought to the notice of the magistrate by any party interested or even by a party who applies for delivery of the property it is sufficient to give jurisdiction to the magistrate to entertain and deal with the application.

6. This Court (Hon'ble Mohd. Yamin J.) in State of Rajasthan v. Mohd. Nissar (supra) took the view that when the vehicle is seized on the ground of non-payment of Tax, under the provisions of Motor Vehicles Act or Motor Vehicle Taxation Act, the procedure prescribed under the Motor Vehicles Act shall be applicable and the jurisdiction of the magistrate under section 457 Cr.PC. shall stand excluded by virtue of provisions contained in section 4 of the Cr.PC. In the said decision his Lordship also made a reference of the Circular issued by the High Court vide No. 4/P. 1 dated July 28, 1975 addressed to all subordinate courts on the subje