HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 11 Case :- CRIMINAL REVISION No. - 2761 of 2006 Revisionist :- Mahavir Opposite Party :- State Of U.P. Counsel for Revisionist :- P.C. Srivastava Counsel for Opposite Party :- Govt. Advocate Hon'ble Amar Singh Chauhan,J.
This criminal revision has been preferred by the revisionist against the order dated 29.4.2006 passed by learned Special Judge (D.A.A.) Agra in Case Crime No. 14 of 2006 under Section 364A IPC, P.S. Sadar Bazar, District Agra whereby the application for release of vehicle Maruti 800 bearing No. U.P. 83-B 6273 was rejected.
As per factual matrix of the case, on 9.1.2006 at 7 p.m. a FIR was lodged against Sanjay the son of revisionist along with others in Crime No. 14/2006 under Section 364A IPC, P.S. Sadar Bazar, District Agra with the allegation that Dipendra @ Dipu aged about 17 years was kidnapped. On 10.1.2006 the complainant received telephonic message by Visheshwar Dayal that they are reaching with Dipendra @ Dipu at Rohata Nahar and instructed the complainant to reach at Rohta Nahar with five lacs rupees. On this information, the police party along with complainant reached at Rohta Nahar where accused Gaurav Sharma and Kishan Sharma who were on two motorcycles were arrested and kidnappee Dipendra @ Dipu also recovered. Two accused who were on third motorcycle succeeded to escape from the recovery place. The accused persons, who were arrested on the spot, are said to have disclosed the name of escaped accused. The son of revisionist namely Sanjay was named as an accused in the FIR and Maruti Car No. U.P. 83B 6273 was alleged to be used in the said kidnapping. It is stated by the revisionist in the application that his driver namely Raja took the said vehicle on 18.12.2005 for the purpose of attending a function and came back on 22.12.2005 in the morning and stated that his cousin was seriously ill and died, hence he could not return within time. It is also stated that he had no concern or knowledge with the alleged incident. Since the vehicle is lying in open place of police station and day by day the condition of the said vehicle is being ruined. The son of the applicant namely Sanjay had been granted bail. Therefore, the applicant approached for release of vehicle but the said application was rejected by the learned Special Judge (D.A.A.) Agra by saying that the car being case property was alleged to be used in kidnapping.
Aggrieved from the said order, present revision has been filed.
I have heard Sri Laxman Tripathi holding brief of Sri P.C. Srivastava for the revisionist and the learned AGA and perused the record.
In this revision only legality, propriety or correctness of the impugned order be gone into. Learned counsel for revisionist argued that the revisionist undertakes that he will not change the make of the said vehicle nor he will sell it to anyone during trial of the case and he will produce the said vehicle before the trial court, if required. It is also submitted that the revisionist namely Sanjay was also named as an accused in the FIR of Case Crime No. 14 of 2006 along with other co-accused persons and Maruti Car No. U.P. 83B 6273 was alleged to be used in the said kidnapping of Dipendra @ Dipu and Sanjay has been granted bail on 9.5.2006 in Bail Application No. 7287 of 2006. It is further submitted that the revisionist has no concern with the said crime, but the police has illegally shown the use of vehicle of revisionist in the said offence. In Sunderbhai Ambalal Desai Vs. Sate of Gujarat [2003 (46) ACC 223] the Apex Court observed as under:
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police, it ought not be retrained in the custody of the court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to he original owner after the necessary to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of by the court and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest."
In this case, revisionist is the registered owner of the vehicle in question and he is not the accused. Kidnappee was recovered from the accused who were on motorcycle. As per co-accused's statement, the vehicle in question was said to be used in crime but nothing was recovered from the vehicle. No useful purpose would be served by keeping the vehicle in police station and there is likelihood of the condition of the said vehicle being deteriorated and ultimately the vehicle may become junk.
Having considered the submission, legality, propriety and correctness of the order, I am of the view that the revision is liable to be allowed.
Hence the revision is allowed and the impugned order dated 29.4.2006 is hereby set aside. The Special Judge (D.A.A.) Agra is directed to release the vehicle, i.e., Maruti 800 bearing No. U.P. 83-B 6273 in favour of the revisionist on his executing a personal bond with one surety in the like amount to the satisfaction of the Judge concerned subject to the condition that during the pendency of the case the revisionist will not make any internal or external change in the said vehicle, he will not transfer the same to any person and will produce the same at his expenses before the Court concerned or any other authority as and when he is directed to produce the same.
Order Date :- 10.7.2015 AK (Amar Singh Chauhan,J.)