Excel Transporters, Lucknow ... vs State Of U.P.
2021 Latest Caselaw 10058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 9241 of 2019
 

 
Applicant :- Excel Transporters, Lucknow Thru. Partner Divya Pillai
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Avanindra Singh Parihar,Avanish Kumar Singh,Maitryee Singh,Monika Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Counter affidavit filed by the State is taken on record.

Heard Shri Avanish Kumar Singh, learned counsel representing the applicant as well as Shri Rupendra Kumar Singh, learned counsel representing the State and perused the record.

The instant petition has been moved by the applicant with a prayer to set aside the impugned orders dated 20.09.2019 and 14.11.2019 passed by the Judicial Magistrate-I, Sitapur, in Criminal Case No. 3513 of 2019, arising out of Case Crime No. 126 of 2011, under Sections 279, 304-A IPC, relating to Police Station- Maholi, District Sitapur, whereby the prayer of the applicant to sell the vehicle released in his favour, has been rejected by the court below as well as the prayer for modification of the release order dated 28.06.2011 has also been rejected.

Learned counsel for the applicant vehemently submits that the incident in this case is of the year 2011 and the charge sheet was submitted in the year 2012 and thereafter the proceedings of the case is pending before the court below and on an application being moved by the applicant the vehicle bearing Registration No. U.P. 32 ATC 2054 (Chesis of the Truck) was released in favour of the applicant, vide order dated 28.6.2011.

It is further submitted that since the trial of the case could not be concluded after many years of the incident and the applicant was under financial constraint, he moved an application before the trial court on 20.9.2019 requesting to permit him to sell the said vehicle. However, the application was rejected by the Judicial Magistrate-I, Sitapur, vide order dated 20.09.2019 on the ground that he is not having jurisdiction to amend / change the conditions, on which the vehicle was released in favour of the applicant.

He further submits that the applicant again moved an application before the trial court for the purpose of modification of terms of the release, however, the same was also rejected, vide order dated 14.11.2019 on the ground that earlier application moved by the applicant to modify the condition on which the vehicle was released has already been rejected and thus the instant application is not maintainable.

Highlighting the above orders passed by the court below and referring to the order of Hon'ble Supreme Court passed in General Insurance Council and others VS. State of Andhra Pradesh and others reported in 2010 (6) SCC 768, it is vehemently submitted that the Hon'ble Supreme Court in that case has issued clear directions to the court below to dispose of the seized vehicle and while considering the earlier case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002)10 SCC 283, it is opined that the vehicle in any case shall not remain idle.

Learned counsel for the applicant prays that the vehicle which has been given in his custody by the court is standing idle and the same has become out dated and as per order of the Hon'ble Supreme Court the same could not be plied in the whole country and therefore the only option applicant having is to sell the same and the trial court has not considered this aspect of the matter and has rejected the application on hyper technical grounds.

Learned AGA on the other hand submits that the order of the court below was on the ground that the vehicle is a case property and therefore no illegality has been committed by the court below.

Having heard learned counsel for the applicant as well as learned AGA and having perused the record, it is evident that the case pertaining to which the vehicle has been seized and released in favour of the applicant was registered in the year 2011 and after the passage of 10 years the trial has not been concluded yet. The vehicle was released in favour of the applicant on 28.6.2011. It is vehemently submitted by learned counsel for the applicant that vehicle has become out dated and the same could not be plied throughout the country and he is under distress financial condition and therefore, he had requested the courts below to permit him to sell the vehicle. However, his request was not heard in right perspective and his two applications have been rejected without assigning cogent reason.

Perusal of the case law propounded by Hon'ble Supreme Court in General Insurance Council and others Vs. State of Andhra Pradesh and others, reported in 2010 (6) SCC 768; wherein earlier judgment of the Supreme Court passed in Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002)10 SCC 283 has been considered would reveal that the issue which is in hand has been specifically dealt with in paragraph 17 of the judgment, which is reproduced as under:-

"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pendinghearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

In Sundaram Finance Ltd. v. State of Tamil Nadu, (2011) 1 MWN (Cri) 437, the police seized a Chevrolet Tavera car involved in offences under Sections 341/363/323/506 (ii) IPC. The vehicle was released by the Court to the owner on executing a bond of Rs. 5,00,000/- and to produce the same as and when required. The owner was also directed not to alter or change or sell the vehicle. The vehicle later caught fire and the entire front portion was damaged. Since the cost of repair was very high, the owner sought permission to sell the vehicle which was declined on the ground that the vehicle was necessary for identification during the trial. The owner challenged the order before the Madras High Court. The High Court allowed the owner to sell the vehicle following the judgment of the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (supra).

The High Court of Delhi in Manjit Singh Vs. State reported in 2014 SCC OnLine Del 4652: (2014) 214 DLT 846 also held as under:-

"68. Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle; valuation report; and a security bond.

69. The photographs of the vehicle should be attested and countersigned by the complainant, accused as well as by the person to whom the custody is handed over.

70. The production of the vehicle should not be insisted upon during the trial. The panchnama and photographs along with the valuation report should suffice for the purposes of evidence.

71. Return of vehicles and permission for sale thereof should be the general norm rather than the exception.

72. If the vehicle is insured, the Court shall issue notice to the owner and the insurance company for disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that it has claimed insurance/released its right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in auction.

73. If a vehicle is not claimed by the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction."

General

86. The Court may impose any other condition which may be necessary in the facts of each case.

87. The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.

88. When the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452 Cr.P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.

89. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial.

90. Irrespective of the fact whether the properties have evidentiary value or not, it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to."

The perusal of the above observation of the Hon'ble Supreme Court in General Insurance Council case (supra) would reveal that it has been categorically opined that if Insurance Company fails to take possession the vehicle the same may be sold as per the direction of the court. The pith and substance of the order passed by the High Court of Delhi in Manjit Singh case (supra) is that only on account of the fact that the vehicle is pertaining to a criminal case the same should not remain idle and be given in the custody of the owner /financier or Insurance company and in appropriate case, may also be sold.

In the instant case the criminal case is pending for the last 10 years thus the Magistrate should have adopted a proactive approach as the applicant before this Court should not suffer unnecessarily. When the trial of the case is taking so much time and only on the point of identification of the vehicle the vehicle has not been permitted to be sold the Magistrate may secure the identification part of the vehicle by permitting the applicant to get the vehicle photographed from different angles in the presence of the court or any officer of the court, so that there shall not be any doubt in the identification of the vehicle during trial, but the vehicle could not be permitted to remain idle specifically when the same could not be plied and has become a white horse.

In view of above, both the orders mentioned above, could not be sustained and are liable to be set aside. The applicant is directed to move a fresh application before the Magistrate concerned and the Magistrate after providing an opportunity of being heard to the parties, shall dispose of the said application keeping in view the above mentioned judgements of the Hon'ble Supreme Court as well as of High Court of Delhi.

In view of the above observations the applicant stands disposed of.

Order Date :- 11.8.2021

Muk