Gauhati High Court
Kabatulla Khan vs The State Of Assam on 4 January, 2024
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GAHC010270552023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./528/2023
KABATULLA KHAN
S/O NURASHA KHAN
VILL- RAJGRAM
P.S. MURARAI
DIST. BIRBHUM (WEST BENGAL)
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR F HAQUE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
04.01.2024
Heard Mr. F. Haque, learned counsel for the petitioner. Also heard Mr. K.K.
Parasar, learned Additional Public Prosecutor, Assam.
This application under Section 397/401 read with Section 482 of the Code
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of Criminal Procedure, 1973 has been filed by the petitioner, namely, Kabatulla
Khan, impugning the order dated 22.11.2023, passed by the learned Judicial
Magistrate First Class, Rangia, Kamrup in Baihata Chariali P.S. Case No.
347/2023, whereby, the prayer for Zimma of a vehicle seized in connection with
the aforementioned case was rejected by the learned Judicial Magistrate First
Class, Rangia, Kamrup on the ground that under Section 457 of the Code of
Criminal Procedure, 1973, a criminal Court does not have jurisdiction to give the
custody of seized property/article at this stage of investigation and those seized
property are not produced before the Court.
Learned counsel for the petitioner has submitted that the vehicle bearing
Registration No. WB-45-5858 (Ashok Leyland 3718BS-iv) owned by the present
petitioner was seized in connection with the Baihata Chariali P.S. Case No.
347/2023 on 08.11.2023 and since the date of seizure it has been lying at the
Baihata Chariali Police Station under the open sky.
Learned counsel for the petitioner has also furnished the registration
certificate of the said vehicle to show his ownership over the said vehicle.
Learned counsel for the petitioner has also submitted that the learned
Judicial Magistrate First Class, Rangia, Kamrup had erred in observing in the
impugned order that under Section 457 of the Code of Criminal Procedure,
1973, the Criminal Court does not have the jurisdiction to give the custody of a
vehicle if it is not produced before the Court and in support of his submission,
learned counsel for the petitioner has cited a ruling of Division Bench of this
Court in Criminal Petition No.284/2022 ( State of Assam and Another Vs.
Ram Sankar Maurya) wherein, the Division Bench dealing with similar other
petitions had disposed of a number of criminal petitions by order dated
02.03.2023 and had held as follows:-
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"In view of the reasons stated above, we answer the reference by
holding that at the investigation stage, seized articles cannot be
released by a Court under Section 451 Cr.P.C. However, under Section
457 Cr.P.C., the Criminal Court has the jurisdiction to give custody of
seized property/articles at the stage of investigation, when those
seized property are not produced before the Court."
On the other hand, learned Additional Public Prosecutor has submitted
that there is no report from the Investigating Officer as to whether the seized
vehicle is required for further investigation or not.
I have considered the submissions made by the learned counsel for both
the sides. The Apex Court in the case of " Sunderbhai Ambalal Desai Vs.
State of Gujarat" reported in (2022) 10 SCC 283 has observed as follows:-
"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 applications for return of such vehicles."
In view of the observations made by the Apex Court in Sunderbhai
Ambalal Desai (supra), there is no use of keeping the seized vehicle in Police
Station for a long period and it is for the Magistrate to pass appropriate order
for granting Zimma of the said vehicle.
Further, in view of the judgment of the Division Bench in State of Assam
and Another Vs. Ram Sankar Maurya (supra), it also appears that under
Section 457 of the Code of Criminal Procedure, 1973, the Criminal Court has the
jurisdiction to give the seized property/article at the stage of investigation even
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when those articles are not produced before the Court.
In view of the above discussion, the observations made by the learned
Judicial Magistrate First Class, Rangia, Kamrup in impugned order needs
interference by this Court. Accordingly, the impugned order dated 22.11.2023 is
hereby set aside and the learned Judicial Magistrate First Class, Rangia is
directed to consider the prayer of grant of Zimma of the seized vehicle to the
present petitioner in the light of the judgment passed by the Division Bench of
this Court in the State of Assam and Another Vs. Ram Sankar Maurya
(supra).
With the above observations, the instant Criminal Revision Petition is
hereby disposed of.
JUDGE
Comparing Assistant
