Allahabad High Court
Rajrani vs State Of U.P. Thru. Prin Secy Home Civil ... on 22 May, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:38643
Court No. - 27
Case :- APPLICATION U/S 482 No. - 4637 of 2024
Applicant :- Rajrani
Opposite Party :- State Of U.P. Thru. Prin Secy Home Civil Sectt. Lko And Another
Counsel for Applicant :- Gulshan Batra,Ravi Chhabra
Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
1. Heard Sri Gulshan Batra, learned counsel for the applicant and Shri Rajeev Kumar Verma, learned A.G.A. for the State and perused the record.
2. At the outset, learned Counsel for the applicant submits that he has wrongly impleaded the Court of learned District and Session Judge, Hardoi as opposite party No.2, thus, he may be permitted to delete the same during the course of the day, in the interest of justice.
3. Learned A.G.A. has no objection to the prayer made by learned Counsel for the applicant.
4. In view of the above, learned Counsel for the applicant is directed to delete the opposite party No.2 during the course of the day.
5. This application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 28.02.2024 passed by Sessions Judge, Hardoi, in Criminal Revision No.28/2024 and also seeking quashing of the order dated 10.01.2024 passed by Additional Chief Judicial Magistrate, Court No.1, Hardoi passed in Case Crime No.444/2023 under Section 279, 337, 338 and 427 I.P.C., Police Station-Mallwan, District-Hardoi.
6. Learned counsel for the applicant submits that on 15.11.2023, the complainant moved an application for lodging of the F.I.R. alleging therein that nephew and one of his relative were riding on a motorcycle on 14.11.2023 at about 6:00 P.M., their motorcycle collided with the tractor bearing Registration No.UP 74 X 2375, which was owned by the applicant and thereafter, they motorcycle riders received severe injuries and were rushed to Hospital. Thereafter, the complainant moved an application for lodging of the F.I.R. for negligent driving by the tractor driver at Police Station Mallwan, District Hardoi and the said complaint was considered and an F.I.R. bearing Case Crime No.0444 of 2023, under Section 427, 279, 337 and 338 I.P.C. against the tractor driver namely- Sandeep.
7. Learned counsel for the applicant further submits that in view of the aforesaid F.I.R., the driver surrendered before the competent authority and thereafter, the vehicle in question was confiscated by the concerned Police Station. He further submits that the applicant moved an application before learned Additional Chief Judicial Magistrate, Court No.1, District-Hardoi seeking release of the vehicle in question and the learned Magistrate vide its order dated 10.01.2024 released the vehicle in favour of the applicant, who is real owner of the vehicle in question with a direction that the applicant will produce a personal bond of Rs.5,00,000/- and a surety of the same amount due to vehicle not being insured on the date of incident and further directed that the applicant will not sell the vehicle in question. He further submits that as per the calculation made by the Insurance company, the value of the vehicle in question is only Rs.2,50,000/- but surety fixed is of Rs.5,00,000/- and due to the poor condition of the applicant, she is unable to deposit such an amount.
8. Learned counsel for the applicant further submits that being aggrieved by the order dated 10.01.2024, the applicant preferred a Revision bearing Criminal Revision No.28/2024 praying therein that the order of learned Magistrate dated 10.01.2024 may be quashed, on which learned Revisional Court vide its order dated 28.02.2024 dismissed the revision preferred by the applicant and further observed that there is no whisper about the fact that the applicant is to deposit Rs.5,00,000/- in cash or in F.D.R., the applicant may submit another surety of Rs.5,00,000/- as directed by learned court. The argument and averment in the revision that learned court below is not taking surety and personal bond in that regard is misconceived.
8. Learned counsel for the applicant further submits that the applicant is facing great jeopardize due to confiscated of vehicle by learned Magistrate, and her livelihood depends upon the said vehicle as the same is the main source of earning and now her family has come at the verge of starvation.
9. Learned counsel for the applicant further submits that the vehicle is standing in open yard in the police station for more than seven months and with the passage of time ultimately it will become junk and after sometime it is not useful for any purpose. Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujrat, AIR 2003 SC 638.
10. Learned counsel for the applicant has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted 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.
457. Procedure by police upon seizure of property. - (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
11. Learned counsel for the applicant further submits that the applicant is ready to comply with all the conditions, which the learned trial court will impose while releasing the vehicle. Undisputedly, applicant is the rightful owner of the vehicle, therefore, the vehicle be released in her favour of the applicant after accepting sureties of reasonable amount as may be fixed by this Court and the impugned order be quashed.
12. Per contra, learned A.G.A. submits that the vehicle in question was being used without insurance on the date of incident and the accident happened due to negligent driving of the driver. Thus, the Magistrate, has rightly passed the impugned order dated 10.01.2024 and revisional order dated 28.02.2024 and there is no illegality, as such, no interference is required.
13. I have heard the learned counsel for the parties and carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) and the judgment passed by this court in various cases.
14. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 and 21 has been pleased to held 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 pending hearing of application for return of such vehicles.
21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. Are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This Object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
15. In Nand Vs. State of U.P., 1996 Law Suit (All) 423, this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U.P. Excise Act. It has been clearly observed by this Court in para 7 that:-
"I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck."
16. This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle.
17. In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act.
18. In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay. So that the litigant may not suffer, merely keeping the article in the custody of the police in the open yard will not fulfill any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made.
19. Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property, keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice.
20. As per the legal propositions mentioned above and keeping in view this fact that undisputedly the applicant is the registered owner of the seized vehicle and the ownership of the vehicle is not in dispute neither the State or any other person has claimed their ownership over the vehicle, therefore, no useful purpose will be served in keeping the vehicle stationed at the police station in the open yard for a long period allowing it to be damaged with the passage of time.
21. In view of the above facts and circumstances of the case, the impugned order is not sustainable in the eye of law and requires interference by this court.
22. Accordingly, the present applicant under Section 482 Cr.P.C. is disposed of and the impugned order dated 10.01.2024 passed by Additional Chief Judicial Magistrate, Court No.1, Hardoi passed in Case Crime No.444/2023 under Section 279, 337, 338 and 427 I.P.C., Police Station-Mallwan, District-Hardoi and order dated 28.02.2024 passed by Sessions Judge, Hardoi, in Criminal Revision No.28/2024, are hereby modified to the extent that the applicant will have to produce two sureties of Rs.50,000/- each and the concerned court will accept the same and release the vehicle in favour of the applicant. Rest of the conditions imposed by the trial courts shall remain intact.
23. Let the copy of this order be sent to the court concerned for its compliance.
Order Date :- 22.05.2024
Piyush/-
(Shamim Ahmed,J.)
