CASE STUDY

Court No: 10
Case : CRIMINAL APPEAL No. - 237 of 2017
Shahid Ali & 4 Others
…Appeallant
Versus
State Of U.P.
…Respondent
Counsel for Appellant :
Suhail Kashif,Krishna Mohan Srivastava,Pawan
Kumar Pandey,Shahabuddin,Sunil Kumar Singh,Taufeeq Ahmad
Counsel for Respondent :
Govt. Advocate,Indrajeet,Surendra Kumar
Yadav,Vimal Kishor Singh
Hon’ble Anil Kumar.J
Hon’ble Faiz Alam Khan.J

I. Facts
The present application has been moved by Alok son of Gopi for cancellation of
bail, which has been granted to the accused Rinku and Raju in the present matter.
Learned counsel for the applicant, who has moved the application for cancellation
of bail, while pressing the application in question submits that after the
appellants/accused were released on bail on 4.10.2018, they had threatened the
deponent, as such in this regard an NCR No. 0069 of 2018 under Section 352/504
IPC has been lodged in Police Station Masauli, District Barabanki. So taking into
consideration of the fact the present application for cancellation of bail has been
moved. We have heard the matter in respect of the application for cancellation of
bail before considering the matter, we feel to quote the provision of Section 439(2)
Cr.P.C., which reads as under:- "Section 439(2) Cr.P.C. (2) A High Court or Court
of Session may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody."
The important word used by the Legislature in the said Section is "may". Hon'ble
Apex Court in the case of State of Uttar Pradesh Vs. Jogendra Singh, 1964 (2) SCR
197, in which Hon'ble the Apex Court has held that the word `may' is capable of
meaning `must' or `shall' in the light of the context in which the word is used and
where a discretion is conferred upon a public authority coupled with an obligation,
the word `may' which denotes discretion should be construed to mean a command.
In the case of Govindlal Chhaganlal Patel Vs. the Agricultural Produce Market
Committee, Godhra and Others, 1975 (2) SCC 482, wherein Hon'ble the Supreme
Court has held that the question as to whether a statue is mandatory or directory
depends upon the intent of the Legislature and not upon the language in which the
intent is clothed and, therefore, the use of the word `shall' or `may' is not conclusive
on the question where the particular requirement of law is mandatory or directory.
The said view was further reported by Hon'ble Supreme Court in the case of Pesara

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Pushpamata Reddy Vs. G. Veera Swamy and Ors., 2011(3) SCR 496, after placing
reliance in the earlier Judgment. In the case of Khub Chand Vs. State of Rajasthan
AIR 1967 SC 1074, wherein it was held by the Apex Court that construction in the
meaning of the word is to be considered as per the intention of the legislature. Thus
further, it is settled principle of law that The Courts decide what the law is and not
what it should be. The courts of course adopt a construction which will carry out
the obvious intention of the legislature but cannot legislate. But to invoke judicial
activism to set at naught legislative judgment is sub serve of the constitutional
harmony and comity of instrumentalities.

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II. Issues
a. The bail granted once should not be canceled in a routine or mechanical
manner.
It may be recalled that bail granted once should not be canceled in a routine
or mechanical manner very compelling and cogent reasons are necessary for
cancellation the bail already granted. While considering the cancellation
application the question of individual liberty of the accused is to be put in
jeopardy which should be done in an appropriate case. The grounds on
which the bail already granted by the Court can be canceled cannot be put
in a straight-jacket formula rather it will vary from case to case, keeping in
view the peculiar facts and circumstances of each case.
b. The Legislature has given discretion to the Court to cancel the bail.
Taking into consideration of the said facts as well as the intention of the
legislature by using word "may" under Section 439(2) Cr.P.C. the legislature
has given a discretion to the Court to cancel the bail, which has already been
granted to the appellant-accused but the same is to be done taking into
consideration the facts and circumstances of the each case as well as the
conduct of the accused after granting of bail.
Reverting to the facts of the present case, accused-appellants Rinku and
Raju have been granted bail by this Court on 4.10.2018, however the
application for cancellation of their bail has been moved by the complainant
on the ground that after being released on bail the accused persons have
threatened the applicant Alok and in this regard and NCR No. 69 of 2018
dated 2.11.2018 under Section 352/504 I.P.C. has been lodged in the
concerned police station. However from the material on record, it is apparent
that no further step i.e. filing of criminal complaint against the accused-
appellants has not been taken by the applicant.

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III. Decision
Keeping in view the facts put forth by the applicant for cancellation of the bail
granted by this Court to accused appellants. We are inclined to accept the prayer of
the accused-applicant as in our considered opinion sufficient grounds do not exist
for cancellation of the bail already granted by this Court, therefore, the application
of the applicant for cancellation of bail is liable to be rejected.
Accordingly the application for cancellation of the bail is rejected.

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Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 163 of 2018
Ramesh Chandra And Another …Appellant
Versus
Ramhet
…Respondent
Counsel for Appellant :
Krishan Kumar
Hon'ble Ajai Lamba,J.
Hon'ble Anant Kumar,J
I. Facts
The appeal is directed against award dated 14.12.2017 rendered by Motor Accident
Claims Tribunal Court no.1 Sitapur.
Vishwapal Bharti died on account of turning turtle of the tractor trolley owned and
driven by Ramhet s/o Nandram (respondent) on 24.1.2017. It is evident from the
award that registration number of the tractor trolley was not mentioned by the
appellant claimant. Registered owner of the tractor trolley was not proved by the
appellant/claimants. There is contradictory evidence in regard to the fact whether
Ramhet was driving the tractor trolley. registration certificate of the tractor, which
allegedly was involved in the accident, has neither been brought on record nor has
been proved. The ownership of the tractor of Ramhet has not been proved. This is
a strange case in which registration number of the motor vehicle allegedly involved
in the accident has not even been mentioned. Under the circumstances, the tribunal
has reached the conclusion to the effect that Vishwapal Bharti died in an accident,
however, there is no evidence to prove that Ramhet was owner of the tractor or was
driving the tractor. It has further been indicated that Ramhet has been falsely
implicated because of previous enmity.

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II. Issues
Ownership of vehicle was not proven by claimant
Learned counsel for the appellants has been confronted by us with the finding
and has been asked to show from a single document which would establish the
registration number of the tractor and the fact that the tractor was owned by
Ramhet. the particular fact that even registration certificate of the tractor, which
allegedly was involved in the accident, has neither been brought on record nor
has been proved. The ownership of the tractor of Ramhet has not been proved.
This is a strange case in which registration number of the motor vehicle
allegedly involved in the accident has not even been mentioned.
Learned counsel has not been able to draw attention of the court towards any
evidence to that effect.
In a recent decision rendered by Hon'ble Supreme Court of India dated 6.2.2018
in Naveen Kumar vs. Vijay Kumar and others Civil Appeal No.1427 of 2018
arising out of SLP (c) no.18943 of 2016, in Para 12, the following has been held:
The consistent thread of reasoning which emerges from the above decisions is
that in view of the definition of the expression 'owner' in Section 2(30), it is the
person in whose name the motor vehicle stands registered who, for the purposes
of the Act, would be treated as the ‘owner’. However, where a person is a minor,
the guardian of the minor would be treated as the owner. Where a motor vehicle
is subject to an agreement of hire purchase, lease or hypothecation, the person
in possession of the vehicle under that agreement is treated as the owner. In a
situation such as the present where the registered owner has purported to
transfer the vehicle but continues to be reflected in the records of the registering
authority as the owner of the vehicle, he would not stand absolved of liability.
Parliament has consciously introduced the definition of the expression ‘owner’
in Section 2(30), making a departure from the provisions of Section 2(19) in the
earlier Act of 1939. The principle underlying the provisions of Section 2(30) is
that the victim of a motor accident or, in the case of a death, the legal heirs of
the deceased victim should not be left in a state of uncertainty. A claimant for
compensation ought not to be burdened with following a trail of successive
transfers, which are not registered with the registering authority. To hold
otherwise would be to defeat the salutary object and purpose of the Act. Hence,
the interpretation to be placed must facilitate the fulfilment of the object of the
law. In the present case, the First respondent was the ‘owner’ of the vehicle
involved in the accident within the meaning of Section 2(30). The liability to
pay compensation stands fastened upon him. Admittedly, the vehicle was
uninsured. The High Court has proceeded upon a misconstruction of the
judgments of this Court in Reshma and Purnya Kala Devi.”
It would not be out of place to refer to the exact definition of Section 2(30) of
the Motor Vehicles Act 1988. Section 2(30) Motor Vehicles Act 1988 reads as
under:
"Section 2(30) in The Motor Vehicles Act, 1988 (30) “owner” means a person
in whose name a motor vehicle stands registered, and where such person is a

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minor, the guardian of such minor, and in relation to a motor vehicle which is
the subject of a hire-purchase, agreement, or an agreement of lease or an
agreement of hypothecation, the person in possession of the vehicle under that
agreement;"
From the above extracted portion of the judgment it becomes evident that
purpose of introducing Section 2(30) in the Motor Vehicles Act is that victim
of a motor accident or, in the case of a death, the legal heirs of the deceased
victim should not be left in a state of uncertainty. The person in whose name a
Motor Vehicle is registered is to be considered as 'owner' of the vehicle. Inverse
of this would also be true. The ownership of the vehicle in terms of Section
2(30) of the Motor Vehicles Act involved in an accident is required to be proved
by the claimant(s).
Without showing that Ramhet was registered owner of the vehicle, within the
meaning of Section 2(30) of the Motor Vehicles Act, the claimants are not
entitled to claim compensation from Ramhet.

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III. Decision
Ramhet cannot be held liable to pay compensation without the claimants proving
that Ramhet was "owner" of the tractor which was involved in the accident.
In the case in hand, neither the registration number of the vehicle has been proved
nor ownership of the said vehicle of Ramhet S/o Nandram has been proved. The
evidence showing Ramhet as the driver is not worthy of belief.
In view of the above, we have no hesitation in holding that the impugned award
has been passed on the basis of relevant evidences and in accordance with the law.
Accordingly, we find no reason to interfere.
The appeal is dismissed.

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