Shivji Deshar Baliya vs State Of Gujarat
2021 Latest Caselaw 12460 Guj

     R/CR.A/952/2021                              JUDGMENT DATED: 26/08/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 952 of 2021



FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI                                   Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                             Sd/-
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1     Whether Reporters of Local Papers may be allowed                 Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                             SHIVJI DESHAR BALIYA
                                     Versus
                              STATE OF GUJARAT
================================================================
Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1
MR RAHUL K DAVE(3978) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                            Date : 26/08/2021
                           ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

The appellant is the owner of the vehicle bearing

registration No.GJ.12.DJ.109 Hero Splendor. The same was

seized in connection with FIR being I CR No.1 of 2018

R/CR.A/952/2021 JUDGMENT DATED: 26/08/2021

registered with Mandvi police station for the offence

punishable under Sections 302, 201 and 114 of the Indian

Penal Code ["IPC" for short] and Section 135 of the Gujarat

Police Act.

2. The son of the appellant is an accused, who has been

convicted for the offence under Section 302 of the IPC. The

FIR culminated into Sessions Case No.22 of 2018 which was

against 6 accused & one of them was the son of the present

appellant.

2.1 The appellant preferred an application under Section

452 of the Code of Criminal Procedure ["Code" for short] at

the end of the trial seeking its release. The same was rejected

by the learned 8th Additional Sessions Judge, Kutch at Bhuj

vide order dated 16.6.2021 and hence, the challenge.

3. Upon issuance of Notice, learned APP waives the notice

for and on behalf of the respondent State and has assisted the

Court.

4. We have extensively heard learned advocate Mr. Rahul

Dave appearing with learned advocate Mr. Kirtidev Dave for

R/CR.A/952/2021 JUDGMENT DATED: 26/08/2021

the appellant. Learned advocate Mr. Rahul Dave has

emphatically urged that the Court has denied on the ground

that the complainant had not been impleaded as a party

opponent. There are no claimants of the muddamal vehicle

which was not even used during the course of commission of

offence. It was according to the case of prosecution, used for

commutation to reach to the place and the present appellant

is not even a suspect at any stage. It was his son who has

unfortunately misused this for reaching to the place but that

could hardly be the reason for the Court to deny the custody

of the vehicle at the end of the trial. He has, therefore, urged

that the order passed on 16.6.2021 by the Court of of learned

8th Additional Sessions Judge, Kutch at Bhuj be quashed and

set aside.

5. Learned APP has drawn the attention of the Court to the

fact that the judgment and order of Sessions Case No.22 of

2018 categorically mentions that at the end of the appeal

period, the non-valuable muddamal shall need to be destroyed

and if there is no order in relation to any other muddamal,

after the appeal period under Section 452 of the Code and

Criminal Manual Para-227, necessary procedure shall be

taken recourse to.

R/CR.A/952/2021 JUDGMENT DATED: 26/08/2021

5.1 She has urged that the Court has rightly passed an order

looking at Para-227 of the Criminal Manual which provides

that in case an appeal or revision lies to the Sessions Court,

the trial Court has not to dispose off the muddamal for one

month, after expiry of period of limitation of an appeal or

revision and if the intimation regarding filing of appeal or

revision is received, till disposal of the appeal or revision by

the Sessions Court. The same may not be done. She has also

further submitted that the trial Court has not to dispose off

the muddamal lying in the custody if the appeal or the

revision is pending.

6. Having heard both the sides and also having closely

perused the judgment and order which is under challenge

dated 16.6.2021 passed in Criminal Misc. Application No.489

of 2021, the Court concerned was actuated by the provision of

Section 452(4) and Para-227 of the Criminal Manual. The

Court has arrived at the conclusion that it is neither a

livestock nor perishable item. The judgment and order of the

Sessions Court delivered in Sessions Case No.22 of 2018 is

challenged in the appeal and hence, the appeal being Criminal

Appeal No.952 of 2021 and other appeals are pending before

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this Court. Therefore, the delivery or the possession of the

custody of the muddamal under Section 452 is not desirable.

The judgment of the sessions case has been challenged by the

son of the present appellant Laxman alias Lachhudo Shivaji

Baliya (Maheshwari) and one Manoj Valji Maheshwari. The

muddamal vehicle, according to the case of prosecution, was

seized from the possession of the accused as per his

disclosure statement and the same was used in the

commission of the crime according to him. It was also the case

of the Court that the accused has not been joined as a party

opponent. By necessary implication, it is held that the parties

which are adversely affected should be heard.

6.1 Under the reason, the Court choose not to part the

custody was that during the investigation under Section

103(2) or during the trial under Section 452 of the Code, the

appellant had not claimed the custody of his vehicle and in

wake of the provision under sub-section (4) of Section 452

read with Para-227 of the Criminal Manual, this has been

denied by the Court.

7. It would be apt to refer to Section 452 of the Criminal

Procedure Code at this stage:-

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"452. Order for disposal of property at conclusion of trial.

(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."

7.1 This provides for the order by the Court on conclusion of

the inquiry or trial in any criminal Court where it is obligated

to pass an order of disposal, destruction, confiscation or

delivery to any person claiming to be entitled to possession of

any property or document produced before the Court or which

is in the custody of the Court or regarding which an offence

appears to have been committed or if the same has been used

for the commission of any offence. This can be with the

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condition or without the condition of executing a bond with or

without security to the satisfaction of the Court concerned.

The Court of sessions is also empowered to direct the same to

be decided by the Court of learned Chief Judicial Magistrate

who is deemed to deal with the same as provided under

Sections 457, 458 and 459 of the Code, which are the

provisions for the property seized by the police or where no

claimant appears within 6 months from the sale of perishable

property. Sub-section (4) of Section 452 provides that where

the property is livestock or is subject to speedy and natural

decay or where a bond has been executed under sub-section

(1) or (2), the same shall not be carried out for two months or

when an appeal is presented until such appeal has been

disposed of. Sub-section (5) provides for the property for

which has been originally in possession or under the control of

any party and property for which the same have been

converted or exchanged and anything acquired by such

conversion or exchange whether immediately or otherwise.

7.2 It would be profitable to refer to at this stage Para-227

under heading "Return or Disposal of Muddamal" as under:-

"227. 1 (a) In cases where appeal or revision lies to the Sessions Court, the trial Court should not dispose of the muddamal for one month after the expiry of the period of limitation for appeal or revision; and if intimation regarding filing of appeal or revision is received, till the disposal of the appeal or revision by the Sessions

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Court. In cases, where appeal or revision lies to the High Court, the trial Court should not dispose of the muddamal lying in its custody and the Sessions Court should not send the muddammal for disposal to the lower Court, before completion of four months from the date of Gsposal of wie case under appeal or revision in, the lower Court should not dispose of it for a month after its receipt and if an intimation regarding filing of appeal or revision is received by the Trial Court or the Lower Court, as the case may be, it should not dispose of muddamal until the appeal or revision is decided by the High Court. The Sessions Court should intimate to the Lower Court about the filing and disposal of the appeal or revision within 2 days from the date of receipt of information in that regard. The above directions as regards the disposal of muddamal in cases where appeal or revision lies to the High Court would apply, mutatis mutandis to the disposal of muddamal in cases where appeal lies to the Supreme Court.

(b) As the scope for loss of muddamal property is greater in the case of disposal of cases, the Presiding Officer should see that the property is disposed of as soon as possible after the period indicated above. (2) Notwithstanding anything contained in sub-para (1) above, the Court may dispose of immediately after the disposal of the case any muddamal articled consisting of livestock or property subject to speedy and natural decay or muddamal property in respect of which a bond is passed under sub-Section (4) of Section 452 of the Code of Criminal Procedure, 1973.

(3) In other cases the person concerned should, as soon as possible after the expiry of the period indicated in paragraph 1 (a) above be asked by post card to appear before the trial Court to receive the muddamal. If he fails to do so, within fifteen days from the date of intimation, the property should be sold at his cost by public auction and the amount so realised credited to Criminal Deposits. If such property is valueless, the Presiding Officer may pass order for destroying it if ordered to return and not taken away in reasonable time. If the cash amount is not taken away for the period of three months, after the intimation as above, it should be deposited as Criminal Deposit in the Treasury."

7.3 This para provides that the trial Court should not

dispose off the muddamal for one month after the expiry of

period of limitation where the appeal or revision lies to the

sessions Court and if intimation regarding filing of appeal or

revision is received, till the disposal of the appeal or revision

by the sessions Court. If it is the appeal or revision lying

before this Court, before completion of 4 months from the

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date of disposal of the case under appeal or revision, the

lower Court should not be disposing it off for a month after its

receipt and if any intimation regarding filing of the appeal is

received. It should not dispose off the mudammal until the

appeal or revision is decided by the Court. It also provides

that the direction as regards the disposal of the mudammal in

cases where appeal or revision lies to the High Court, would

apply mutatis mutandis to the disposal of the muddamal in

cases where the appeal lies to the Supreme Court. However,

in case of livestock or property subject to speedy and nature

decay or mudammal property in respect of which a bond is

executed under sub-section (4) of Section 452 of the code, it is

permissible for the Court to release the mudamal.

8. The Court of learned 8th Additional Sessions Judge had

rightly considered the provision of Para-227 of the Criminal

Manual and Section 452 of the Code and has also taken note

of the fact that the appeals are already pending before this

Court. It has chosen not to exercise its discretion essentially

for two reasons; (1) the appeal is pending; and (2) the accused

has not been joined as the party opponent. It is given to

understand that at no stage the request has come from any

quarter for release of the muddamal so far as the present

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vehicle is concerned. The appellant is a father of convict

Laxman, who has preferred an appeal being the Criminal

Appeal No.399 of 2021 before this Court. The vehicle is

alleged to have been used for the purpose of commutation to

the place of offence.

However, while denying the custody of the vehicle, the

Court has overlooked the decision rendered by the Apex Court

in case of Sundarbhai Ambalal Desai v. State of Gujarat [AIR

2003 SC 638]. It was a case of two petitions filed by the Police

Inspector serving in the State of Gujarat who had contended

that the prosecuting agency had no right to ask for remand of

petitioners for the purpose of collecting evidence and

application moved for remand of the petitioners was

unjustified because anticipatory bail was granted. At the time

of hearing of this matter, the learned counsel for the parties

submitted that various articles were kept at police station for

a long period by not adhearing to the procedure prescribed by

the Code which created difficulties for keeping them in safe

custody. The suffers either therefore were the State

exchequer or the citizens whose articles are kept in the

custody. It was urged to the Apex Court that speedier

procedure is required to be evolved either by the Court or

under the rules for disposal of muddamal articles kept at

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various police stations as most of the police stations were

flooded with seized vehicles and articles. Directions were

sought so that the burden of the Court as well as that of the

police station can to a certain extent reduced and there may

not be a scope for misappropriation or replacement of

valuable articles by spurious articles. Referring to Section 451

and 457 of the Code, the Court referred to the decision

rendered in case of Smt. Basavva Kom Dyamangouda Patil v.

State of Mysore [AIR 1977 SC 1749] where the Apex Court

dealt with the case where a seized article were not available

to be returned to the complainant. There the recovered

ornaments had been kept in the trunk in the police station and

later were found missing. The Court held that the seizure of

the property by the police amounts to clear entrustment of the

property to a Government servant and the property should be

restored to the original owner after the necessity to retain it

ceases. There may be two stages where the property may be

returned to the owner. In the first phase, during any inquiry

or trial if the property is subject to speedy and natural decay;

and there may be other compelling reasons which will justify

the disposal of the property to the owner or otherwise, in the

interest of justice. The High Court and the Sessions Court

since had proceeded on the footing that there may be a

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requirement of the articles seized to be produced before the

Court during the trial, the Apex Court held that the object

seems to be that any property which is under control of the

Court either directly or indirectly should be disposal off by

the Court and a just and proper order should be passed

regarding disposal of the articles. The police always acts in a

case under the direct control of the Court and hence has to

take the order from it at every stage of inquiry or trial. In

nutshell, it has held that the Court exercises overall control on

the actions of the police officers in every case where it has

taken the cognizance. The Court further held that when the

property is stolen, lost or destroyed and there is no prima

facie defence made out that the State or its officers had taken

due care or caution to protect the property, the Magistrate

may in an appropriate case where ends of justice so require,

order payment of value of the property. Therefore, to avoid

such a situation, the Court held that the powers under Section

451 of the Code shall be exercised promptly and at the

earliest.

8.1 For such purpose, a detailed guidelines have been

provided. So far as the vehicles are concerned, it was a

matter of serious concern as number of vehicles were kept

unattended and they may be junked day by day. Where the

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vehicle was not claimed by the owner or insurance company

or by the third person, it was urged that let the vehicles be

auctioned by the Court. If the vehicle was insured with the

insurance company, then the insurance company shall be

informed by the Court to take possession, which is not

claimed by the owner and a third person and if it fails to do

so, then the Court can sell it. The Court has also observed

that:-

"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

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."

8.2 It is thus a clear direction that within a period of 6

months from the date of production of the vehicle before the

Court concerned, these powers are to be exercised. As it is

quite clear from the directions that when the vehicle is not

claimed by the accused, owner or insurance company or by a

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third person, the auction is also necessary at the end of the

Court. Even when the insurance company in case of those

vehicles which are insured chooses not to seek the possession

as per the directions of the Court, the same are required to be

sold. Before handing over the possession of such vehicles,

appropriate photographs to be taken and a detailed

panchnama to be prepared. The learned Magistrate is

required to take immediate actions of ensuring that the

powers under Section 451 of the Code are promptly exercised

and the articles are not allowed to be kept for a longer

duration at the police station. The period contemplated is not

more than 15 days to 1 month.

8.3 The entire object of continuing the muddamal articles

while the appeals are pending is for the purpose of examining

those mudamals during the course of the arguments. The

solution has already been given by the Apex Court, which has

directed the photographs of such articles to be taken after the

panchnama to be drawn and such photographs of articles are

attached or counter singed by the accused or the person to

whom the custody is handed over. This has been contemplated

at the initial stage when the trial is still pending. Noticing the

object of continuing the muddamal articles when the appeal is

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pending, the very modus can be adopted by the Court

concerned, more particularly when serious concern has been

shown by the Apex Court insisting upon the vehicles lying at

the police station to be handed over by taking appropriate

bond and guarantee as well as the security while returning

the vehicle. This can be done pending the hearing of the

application for return of such vehicles as well.

9. Noticing the law, which has been laid down and which

has been followed thereafter by this Court in number of

matters, we are of the opinion that the provision of Section

452 of the Code and Para-227 of the Criminal Manual even

when require the continuity of the muddamal articles which is

not perishable, the ratio laid down in case of Sundarbhai

Ambalal Desai (supra) shall necessarily need to be employed

in the present case and in all such matters where there is no

dispute with regard to ownership of the vehicle.

9.1 The Court cannot be oblivious of the fact that the

appellant is the father of one of the convicts and therefore is

not joining his own son here cannot be blown out of

proportion. Since the learned advocate Mr. Dave represents

the son in pending the appeal, on instructions, he submits that

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the son has no objection if the vehicle is being handed over to

the father. After due verification of the certificate of

registration by R.T.O. and on completion of drawing of the

panchnama of the vehicle lying with the Mandvi Police Station

as also taking the videograph and photograph of the said

vehicle, the police officer In-charge of Mandvi police station

shall hand over the vehicle to the appellant. The entire

procedure to be completed within period of 2 weeks from the

date of receipt of copy of this order.

The appeal is accordingly allowed by quashing and

setting aside the order of the learned 8 th Additional Sessions

Judge, Kutch at Bhuj dated 16.6.2021.

Direct service is permitted.

(SONIA GOKANI, J)

(RAJENDRA M. SAREEN,J) KAUSHIK D. CHAUHAN