Mohd. Ashraf vs State Of U.P.
2018 Latest Caselaw 2550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Approved For Reporting
 
Reserved On 4.7.2018
 
Court No. - 55
 

 
Case :- CRIMINAL REVISION No. - 932 of 2016
 

 
Revisionist :- Mohd. Ashraf
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Lav Srivastava,V.P. Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Kumar Singh,J.

1. Heard Sri V.P. Srivastava, learned Senior counsel assisted by Sri Lav Srivastava, learned counsel for the revisionist and Sri Abhinav Prasad, learned A.G.A. for the State.

2. The present criminal revision under Section 397/401 Cr.P.C. has been filed for quashing the order dated 15.3.2016 (wrongly mentioned in the impugned order dated as 15.3.2015) passed by learned Special Judge (Gangster Act), Bhadohi-Gyanpur in Reference Case No.3 of 2015, whereby the release application filed by the revisionist has been rejected.

3. It is contended by learned counsel for the revisionist that vehicle i.e. Toyota Fortuner bearing registration No.U.P. 70 CU 5707 belongs to the revisionist and it has no concern with his brother Muzaffar. The aforesaid vehicle was financed by the Baroda Uttar Pradesh Gramin Bank, Branch Bamrauli. It is next contended that brother of the revisionist namely Muzaffar is being prosecuted under Section 3(1) of U.P. Gangster & Anti Social Activities Prevention Act, 1986 for which first information report bearing case crime no.90 of 2014 was lodged at Police Station Aurai, District Sant Ravidas Nagar, Bhadohi. It is further submitted that in case crime no.90 of 2014 a report was submitted by the Officer Incharge of Police Station Mahila Thana, under Section 14(1) of U.P. Gangster & Anti Social Activities Prevention Act for attachment of property of brother of the revisionist Muzaffar, thereafter, on aforesaid report Superintendent of Police Sant Ravidas Nagar, Bhadohi referred the matter to District Magistrate for attachment of property of Muzaffar under Section 14(1) of U.P. Gangster & Anti Social Activities Prevention Act. On the basis of aforesaid recommendation under Section 14(1) of U.P. Gangster & Anti Social Activities Prevention Act for attachment of property of the revisionist's brother Muzaffar, Superintendent of of Police, Sant Ravidas Nagar, Bhadohi referred the matter to the District Magistrate for attachment of the property of Muzaffar under Section 14(1) of the U.P. Gangster & Anti Social Activities Prevention Act the properties of Muzaffar were attached including one Fortuner bearing registration no.U.P.70 CU 5707, engine no.1KDU480871 and chechis no.MBJ11JV510535506. An application under Section 14(1) of U.P. Gangster & Anti Social Activities Prevention Act before District Magistrate, Sant Ravidas Nagar, Bhadohi for release of vehicle in question was moved by the revisionist on 4.4.2015, but the District Magistrate, Sant Ravidas Nagar, Bhadohi refused to release the vehicle of the revisionist and under the provisions of Section 16(1) of U.P. Gangster & Anti Social Activities Prevention Act referred the matter to Special Judge (Gangster Act), Bhadohi. Revisionist contested the case before Special Judge (Gangster Act), Bhadohi in Reference Case No.3 of 2013 and it was specifically argued that vehicle bearing registration no.U.P.70 CU 5707 exclusively belongs to him and Muzaffar has no concern with the same therefore the same should be released in his favour relevant documents i.e. registration certificate, hypothecation certificate, issued by the Branch Manager, Baroda Uttar Pradesh Gramin Bank, Branch Bamrauli were there, but the concerned Court below has rejected the said application of the revisionist and refused to release the vehicle-in-question in favour of the revisionist. It is, thus contended that the order impugned passed by the concerned Court below refusing to release the vehicle-in-question is illegal and deserves to be set aside.

4. Sri Abhinav Prasad, learned A.G.A for the State-respondent has vehemently opposed the prayer for release of vehicle in favour of the revisionist and submitted that the revisionist failed to bring on record any legal or valid paper such as Khasara, Khatauni and annual earnings with regard to agricultural field i.e. 50 Bigha of land and the revisionist also did not produce any agricultural papers to prove ownership of it by his father as well as other sources the revisionist had also failed to produce any papers with regard to actual earnings from agricultural land from which earnings such a heavy cost vehicle has been purchased by the revisionist or his brother Muzaffar and no such papers has been produced. Thus, it is submitted that the order impugned passed by the concerned Court below is just, legal and suffers from no illegality.

5. I have heard the submissions as advanced by the counsel for the respective parties and perused the documents available on record.

6. The revisionist has contested the case that the revisionist is a registered owner of Toyota Fortuner bearing registration no. U.P.70 CU 5707, which vehicle was wrongly attached treating the same as the property belonging to his brother Muazffar who is said to involve in some criminal cases of which revisionist has no concern, however application (33 Ga) was filed before the concerned Court below to release the vehicle-in-question, but the same has been rejected.

7. While rejecting the application (33 Ga) filed by the order dated 15.3.2015 has made following order observations which reads as under:-

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8. Learned counsel for the revisionist submits that the revisionist is living separately and he has no concern with his brother Muzaffar, reference in this regard has been made to annexure-SA-1 to the supplementary affidavit dated 23.11.2016, which is copy of ration card of the revisionist. Learned counsel for the revisionist has further submitted that the revisionist is an income tax payee as is authenticated by annexure-SA-2, SA-3 & SA-4 to the supplementary affidavit dated 23.11.2016, which is the copy of the Indian Income Tax Return Verification Form for financial years 2012-13, 2013-14, 2015-16. It is further submitted that the revisionist is the owner of a truck bearing registration no.U.P.73-A - 1610 which is sold to one Shanti Devi w/o Raj Narayan, a copy of registration certificate in the name of revisionist and receipt of transfer dated 21.1.2013 and the transfer application duly filed and signed by the revisionist dated 20.2.2013 have been annexed as annexure-SA-5, SA-6 and SA-7 to the supplementary affidavit dated 23.11.2016. Learned counsel for the revisionist submits that the vehicle-in-question bearing U.P. 70 CU 5707 engine no.1KDU480871, Chesis No.MBJ11JV510535506 has been purchased by the revisionist after taking financial aid from Baroda Uttar Pradesh Gramin Bank, Branch Bamrauli after furnishing proper sureties.

9. So far as the observation made by concerned Court below that the revisionist had also failed to produce any papers with regard to actual earnings from agricultural land it is submitted by the revisionist that late Imtiyaj Uddin S/0 Sirajuddin was the grand father of revisionist, he had landed property in the village Chafari Uparhar, Pargana Nawabganj. Tehsil Soraon, District Allahabad. Revisionist's grandfather Imtiyaj Uddin was the owner in possession of various plots of Khata no.50, 73, 76 and 77. Total area of the plots of Khata no.73 is 7 bighas 18 biswa and that plot no.77 is 10 bighas 18 biswa. Total area of the plots of Khata no.76 is 22 bighas 7 biswa, to substantiate the aforesaid fact photo copy of khatauni 1421-1426 fasli of khata no.50, khatauni 1388-1393 fasli of khata no.76 and khatauni 1388-1393 fasli of khata no.73 and 77 is filed herewith this revision and marked as annexure-RA-1, RA-2 and RA-3 respectively to this rejoinder affidavit. Thus, the grandfather of the revisionist had been the owner in possession of more than 50 bighas of land which ultimately came to revisionist and his brothers after the death of grandfather and father of the revisionist, the father of the revisionist Mukhtar died in the year 2015 leaving behind the revisionist and his brothers as his legal representatives.

10. It is further submitted no criminal cases are there to the credit of the revisionist, and it is brother of the revisionist namely Muzaffar against whom eight cases were shown, which have been detailed in the counter affidavit filed by the State-respondent and the revisionist has no concern with the said cases lodged against his brother, therefore, it is submitted that the revisionist cannot be penalized for alleged wrong doing/criminal cases registered against his brother Muzaffar.

11. Learned counsel for the revisionist has drawn the attention of this Court towards Section 451 Cr.P.C. which reads as under:-

"451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

12. It is thus, submitted that provisions of Section 451 Cr.P.C. clearly provides that when any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. In the instant case no criminal case has been ever instituted against the revisionist nor it has come on record the alleged vehicle has been used in the crime in question alleged to have been committed by the brother of the revisionist. Therefore, it is submitted that seizure of Toyota Fortuner of the revisionist, is bad and unjustified.

13. Learned counsel further contends that if the vehicle is kept in police station, the same would result in the vehicle becoming junk. Learned counsel for the applicant has relied upon a decision of Hon'ble Apex Court in the matter of Sunder Bhai Ambalal Desai Vs. State of Gujarat 2003 (46) A.C.C. 223 in support of his contention, in which it has been held that it is not desirable in the matter of motor vehicle, the vehicle be kept at the police station for a long time which result in the vehicle becoming junk, therefore, the vehicle-in-question should be released in favour of the registered owner on such terms and conditions as the court below may deem fit and proper.

14. Accordingly, the order dated 15.3.2016 (wrongly mentioned in the impugned order dated as 15.3.2015) passed by learned Special Judge (Gangster Act), Bhadohi-Gyanpur in Reference Case No.3 of 2015, whereby the release application filed by the revisionist has been rejected is set aside and the matter is remitted to the concerned Magistrate to consider and decide the matter in accordance with law preferably within a period of two months from the date of production of certified copy of this order before it.

15. With the aforesaid directions, this revision is finally disposed off.

Order Date :- _13__/_09__/2018

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