Bombay High Court
Mohammad Tabrez S/O Mohd. Ahsar Ui ... vs State Of Mah. Thr. Pso Ps Kalamana ... on 11 January, 2023
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 793 OF 2022
PETITIONER : Mohammad Tabrez S/o Mohd. Ahsar Ul Haque,
Aged about 36 years, Occu. Private
R/o 624, Bhandkheda Road,
Near Kadar Sahib Masjid, Nagpur.
VERSUS
RESPONDENTS : The State of Maharashtra,
through Police Station Officer,
Police Station, Kalamna, Nagpur.
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Mr. S. S. Rahimuddin, Advocate for the petitioner.
Mr. S. A. Ashirgade, A. P. P. for respondent /State.
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CORAM : G. A. SANAP, J.
DATE : JANUARY 11, 2023.
ORAL JUDGMENT
1. RULE. Rule made returnable forthwith. Heard finally by
consent of the learned advocates for the parties.
2. Challenge in this petition is to the order dated 12.08.2022
passed by the learned Additional Sessions Judge-15, Nagpur, whereby
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the learned Sessions Judge was pleased to reject the application made
by the petitioner at Exhibit-2 for return of motorcycle bearing
registration No. MH-49/BL-0077 seized in crime bearing No.
463/2021 for the offences punishable under Sections 306, 409, 420
read with Section 34 of the Indian Penal Code and under Section 3 of
the Maharashtra Protection of Interest of Depositors (In Financial
Establishments) Act, 1999. On completion of the investigation in the
crime, charge-sheet was filed. The case is registered as Special Case
No. 168/2022.
3. According to the petitioner he is the registered owner of
the motorcycle in question. The motorcycle was registered in his name
on 24.09.2020. The petitioner is not accused in the case. The crime
was registered in the year 2021, whereas he purchased the motorcycle
from accused Sunil Kadiyala in the year 2020. He, therefore, prayed
for release of the motorcycle to him during pendency of the case.
4. The application was opposed by the State. It was
contended that there was no documentary evidence to show purchase
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of the motorcycle by the petitioner and therefore, he was not entitled
to get custody of the motorcycle till completion of the trial. Learned
Additional Sessions Judge on consideration of the material found the
objection raised by the State justifiable and as such rejected the
application.
5. I have heard Mr. S.S. Rahimuddin, learned advocate for
the petitioner and Mr. S. A. Ashirgade, learned Additional Public
Prosecutor for the respondent/State. Also Perused the record and
proceedings.
6. Learned advocate for the petitioner submitted that
initially the motorcycle was registered in the name of Sunil Kadiyala,
the accused in the case. However, the petitioner purchased the said
motorcycle from Sunil Kadiyala and it was registered in his name on
24.09.2020. It is submitted that this motorcycle has not been attached
in commission of the crime by specific order passed by the Court.
Learned advocate for the petitioner pointed out that the petitioner is
not accused in commission of the crime, which was registered in the
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year 2021. Learned advocate submitted that the reasons recorded for
rejection of the application are not legally sustainable.
6. Learned Additional Public Prosecutor supported the order
passed by the learned Additional Sessions Judge. It is to be noted that
the petitioner is not accused in the crime. The crime was registered in
the year 2021. The motorcycle has not been attached in commission of
the said crime. It was simply seized in the said crime. Learned
Additional Sessions Judge has taken into consideration the RC book of
the motorcycle wherein the petitioner is shown as a registered owner
from 24.09.2020. The learned Judge while rejecting the prayer has
observed that actual nature of sale and purchase transaction of the
motorcycle is not placed on record. In my view, considering the fact
that the petitioner is the registered owner of the motorcycle and he is
not involved in any manner in commission of the crime, the learned
Judge was not right in rejecting the application of the petitioner.
7. It is to be noted that the motorcycle would remain idle
with the police station. The value of the motorcycle would get
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decreased considerably. The trial may take its own time for final
adjudication. The motorcycle if not released may be of no use at all at
the time of conclusion of the trial. It is further pertinent to note that
even otherwise also I do not find any reason to deny release of the
motorcycle to the applicant subject to appropriate conditions. If the
motorcycle is not released to the petitioner, then he would certainly be
put to loss and prejudice. Therefore, subject to appropriate conditions,
custody of the motorcycle can be handed over to the applicant.
8. In the result, the criminal writ petition is allowed.
(a) The order passed by the learned Additional Sessions
Judge-15, Akola, dated 12.08.2022 at Exhibit-2 in Special Case No.
168/2022 is set aside. The application (Exh.2) made by the petitioner
for release of the motorcycle is allowed. The motorcycle bearing
registration No. MH-49/BL-0077 be released and custody of the same
be given to petitioner - Mohammad Tabrez S/o Mohd. Ahsar Ul
Haque.
(b) Considering the make of the motorcycle, the petitioner
shall furnish solvent surety in the sum of Rs.3,00,000/- (Rs.Three lacs)
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(c) The Investigating Officer shall take photographs of the
motorcycle from all the angles before handing over the actual custody
of the same to the petitioner.
(d) The petitioner shall furnish an undertaking that as and
when required by the Court, he will produce the said motorcycle before
the Court.
(e) The petitioner shall not dispose of the motorcycle bearing
registration No. MH-49/BL-0077 in any manner till conclusion of the
trial.
9. Rule is made absolute in the aforesaid terms. The petition
stands disposed of.
(G. A. SANAP, J.)
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:12.01.2023
19:03
