Pralhad vs The State Of Maharashtra
2012 Latest Caselaw 4 Bom

                                         (1)                       Cri. W.P. No. 818 / 2012


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
             AURANGABAD BENCH, AT AURANGABAD.




                                                                                      
                     Criminal Writ Petition No. 818 of 2012




                                                              
    Pralhad s/o. Babanrao Thombre,
    Age : 42 years,




                                                             
    Occupation : Business & Agriculture,
    R/o. Guru-Datta Nagar, Garkheda
    Parisar, Aurangabad,
    Taluka & District : Aurangabad.                              .. Petitioner.




                                           
                  versus
                           
                          
    The State of Maharashtra,
    Through Police Inspector,
    Police Station, Kurunda,
    Taluka : Basmath, Dist. : Hingoli.                           .. Respondent.
      


                                   .......................
   



                Mr. A.D. Aghav, Advocate, for the petitioner.





                Mr. N.R. Shaikh, Additional Public Prosecutor,
                for the respondent.

                                   ........................





                                 CORAM : SHRIHARI P. DAVARE, J.

DATE : 27TH SEPTEMBER 2012

(2) Cri. W.P. No. 818 / 2012

ORAL JUDGMENT :

1. Heard Adv. Mr. A.D. Aghav for the petitioner, and learned

APP Mr. N.R. Shaikh for the respondent.

2. Rule. Rule made returnable forthwith. With the consent of learned Counsel for parties, taken up for final hearing at the admission

stage itself.

3. By the present petition filed by the petitioner under Articles

226 and 227 of the Constitution of India, the petitioner has prayed that the

order dated 13-7-2012, passed by the learned Judicial Magistrate (F.C.), Basmath, in Misc. Criminal Application No. 141/2012, and the judgment

and order dated 23-8-2012, passed by the learned Additional Sessions Judge and District Judge-1, Basmathnagar, in Criminal Revision Petition No. 16/2012, be quashed and set aside, and the respondent be directed to

release the vehicle of the petitioner, bearing No. MH-15/E-6626 i.e. Tavera

Jeep.

4. The petitioner contends that he is doing business of vehicle

sale, purchase and transport and he is having vehicle bearing No. MH. 15/E-6626 i.e. Tavera Jeep. The Police Inspector, Kurunda Police Station, registered Crime No. 33/2012, on 6-6-2012, under Section 302, read with

Section 34 of Indian Penal Code, and seized the petitioner's said Tavera Jeep thereunder. It is the contention of the petitioner, that the petitioner is the owner of the said vehicle and given the said vehicle on rental basis to the customer. Hence, he was not aware whether the said vehicle was involved in any crime. Apart from that, he states that the investigation has

(3) Cri. W.P. No. 818 / 2012

been completed and the accused have been arrested and Panchanama of the said vehicle was done by the Police. Hence, the petitioner filed Misc.

Criminal Application No. 141/2012 before learned Judicial Magistrate (F.C.), Basmath, under Section 457 of the Code of Criminal Procedure,

and prayed to release the said vehicle on Supurtnama. However, learned Judicial Magistrate (F.C.), rejected the said application by order dated

13-7-2012, on the ground that the offence was registered under Section 302 of Indian Penal Code which was triable by the Court os Sessions. Hence, being aggrieved and dissatisfied by the said order, the petitioner

herein preferred Criminal Revision Petition No. 16/2012 before learned

Additional Sessions Judge, Basmathnagar, on 23rd August 2012. However, even the said revisional court also dismissed the said revision of

the petitioner, observing that the said vehicle was used in commission of the offence of murder of one Sachin, and said Sachin was lifted from Aurangabad and his murder was committed in the said vehicle, and then

he was brought in that vehicle within the area of Basmath Tahsil.

Accordingly, murder of said Sachin was committed in the said jeep itself. At the time of committing murder of said Sachin, cushion of the vehicle was cut at some places which is important piece of evidence, and if the

said vehicle is released in favour of the petitioner, certainly part of evidence would be destroyed and the possibility of changing interior of the jeep by the petitioner was not ruled out.

5. Hence, learned revisional court observed that the learned Judicial Magistrate (F.C.), Basmath, rightly rejected the application for return of the vehicle, and consequently, dismissed the said revision also. Being aggrieved, the petitioner herein has questioned correctness and

(4) Cri. W.P. No. 818 / 2012

legality of both the aforesaid orders in the present petition. To substantiate the said contention of the petitioner, learned Advocate for the petitioner

has relied upon judicial pronouncement of Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported at 2002(10) SCC 283,

and judicial pronouncement of learned Single Judge of this Court in the case of Jeevan Pundlikrao Kendre Vs. State of Maharashtra, reported at

2005(Supp.) Bom.C.R.(Cri.) 129.

6. Learned APP Mr. N.R. Shaikh for the respondent countered the

said arguments and opposed the present petition vehemently, and submitted

that the learned trial court has rightly rejected the application preferred by the petitioner for return of the vehicle, as well as, learned revisional court

has also rightly confirmed the said order dismissing the revision petition filed by the petitioner challenging the said order since the vehicle in question was used for commission of the offence of murder of one Sachin.

He also canvassed that the said Sachin was lifted from Aurangabad and his

murder was committed in the said vehicle and at the time of committing murder of said Sachin, cushion of the said vehicle was cut at some places, and therefore, said evidence is required to be preserved and if custody of the

said vehicle is handed over to the petitioner, there is every possibility of change in interior of the said vehicle and destruction of evidence. Accordingly, learned APP submitted that the present petition deserves to be

dismissed and the same be dismissed.

7. I have perused contents of the present petition, its annexures, order passed by the learned Judicial Magistrate (F.C.), Basmath, dated 13-7-2012, rejecting application of the petitioner for return of the vehicle,

(5) Cri. W.P. No. 818 / 2012

and the impugned order dated 23rd August 2012, passed by the learned revisional court, dismissing the revision preferred by the petitioner,

challenging the order passed by the learned Judicial Magistrate (F.C.), and also considered rival submissions advanced by the parties, and the judicial

pronouncement cited by the learned Advocate for the petitioner.

8. At the outset, Exhibit "A" collectively i.e. registered certificate and other documents of the aforesaid vehicle disclose that the petitioner herein is the owner of the said vehicle. Moreover, admittedly, the petitioner

has preferred Misc. Criminal Application No. 141/2012 before learned trial

court under Section 457 of the Code of Criminal Procedure. Section 451 under Chapter XXXIV, and Section 457 under the said Chapter deal in

respect of 'disposal of property'. It would be useful to reproduce the said sections :

"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.

(6) Cri. W.P. No. 818 / 2012

(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. "

9. Keeping in mind the provisions of the said Sections, and

coming to the factual aspects of the present case wherein undisputedly investigation has been completed and charge sheet has been filed, admittedly, the petitioner is not accused in the said Crime No. 33/2012. According to the petitioner, he is owner of the said Tavera Jeep and it is his business to rent out the vehicles and accordingly, said Tavera Jeep was

(7) Cri. W.P. No. 818 / 2012

rented out by him which was allegedly used in commission of the offence by the accused persons. Hence, said Tavera Jeep was seized by the Police

personnel under the aforesaid CR. The petitioner has made averment in the petition that his livelihood is dependent upon the said Jeep. Hence, he

urged that the said Tavera Jeep be returned to him on Supurtnama.

10. However, the objection raised by the respondent is that the said Tavera Jeep was used in commission of the offence for committing murder of one Sachin and said Sachin was lifted from Aur;angabad and his murder

was committed in the said jeep itself, and at the time of committing his

murder, there were cuts in the cushion of the said vehicle, which is important piece of evidence and apprehension was posed that if the said

Tavera Jeep is returned to the petitioner, said evidence would be destroyed and there is possibility that the petitioner will change interior of the said vehicle.

11. Again reverting back to the provisions of Sections 451 and 457 of the Code of Criminal Procedure, the object and import of the said Sections is that where the property which has been the subject-matter of an

offence is seized by the police, it ought not to be retained 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 the original owner after the necessity to retain it ceases. It is manifestly clear that there may be two stages when the property would be returned to the owner. In the first place, it may be returned during any inquiry or trial. This may be pertinently necessary

(8) Cri. W.P. No. 818 / 2012

where the property concerned is subject to speedy or natural decay. Thre may be another compelling situation that which may justify disposal of the

property to the owner or otherwise in the interest of justice. 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 act under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In the broad sense, the Court exercises an overall control on the actions of the Police

Officers in every case where it has taken cognizance. For this purpose, the

Court may follow the procedure prescribed under Section 451 of the Code of Criminal Procedure. The bond and security should be taken so as to

prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or or countersigned by the complainant, accused as well as by the person to whom the custody is

handed over. Still, it would be function of the Court under Section 451 of

the Code of Criminal Procedure, to impose any other appropriate condition.

12. In the instant case, admittedly, the petitioner is owner of the

aforesaid Tavera Jeep and there is every possibility of rusting / deterioration of the said vehicle if it is kept at the Police Station for indefinite period / till disposal of the trial. Besides, as averred by the petitioner, said vehicle is

source of livelihood of the petitioner and his family. Hence, interest of justice requires that the said Tavera Jeep be returned to the petitioner on execution of Supurtnama / necessary bond, to avoid its deterioration, rusting and decay, and to enable the petitioner to utilize the said vehicle to earn his livelihood. However, simultaneously, precaution is required to be taken by

(9) Cri. W.P. No. 818 / 2012

imposing conditions upon the petitioner, that he shall not alter interior of the said vehicle or nature of the said vehicle in any way whatsoever, as well as

he shall make available the said vehicle and shall produce the said vehicle before the Court as and when required since said vehicle was allegedly used

in commission of the alleged offence. Even photographs of the interior of the said vehicle can be taken and the apprehension posed by the learned

APP for the respondent can be met with, accordingly.

13. In the circumstances, the impugned orders passed by the

learned trial court and learned revisional court deserve to be quashed and set

aside, and the present petition is required to be allowed, but on certain conditions.

14. In the result, present petition is allowed in terms of prayer clauses "A" and "B" thereof, and the impugned order dated 13-7-2012,

passed by the learned trial court, and the order dated 23-8-2012, passed by

the learned revisional court, stand quashed and set aside, and the Tavera Jeep, in question, bearing No. MH-15/E-6626 be returned to the petitioner, who claims to be the owner thereof, on execution of Supurtnama, on the

following conditions :

(i) The petitioner shall execute bond of Rs. 6,00,000/- [Rupees Six Lacs]

as per usual terms and conditions;

(ii) The petitioner shall give undertaking before learned trial court, that he or his representatives shall not sell, pledge or transfer the said Tavera Jeep to any person in any manner whatsoever till the disposal of the trial.

(10) Cri. W.P. No. 818 / 2012

(iii) The petitioner shall give undertaking before learned trial court, that

he or his representatives shall not change the nature, and more particularly, interior of the said Tavera Jeep, in any manner whatsoever, and shall

produce said Tavera Jeep, in question, before learned trial court, as and when required, in the same condition in which it is being handed over to

him on execution of Supurtnama.

(iv) The investigating agency shall take photographs of the said Tavera

Jeep, in question, more particularly, photographs of interior thereof, in the

presence of the petitioner, and shall produce the same and its negatives during the course of trial, if required.

15. Rule is made absolute in the aforesaid terms, and the present petition is disposed of accordingly.

(SHRIHARI P. DAVARE) JUDGE

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