1. The present Special Criminal Application under Article 226 of the Constitution of India has been preferred by the petitioner herein – Finance Company to quash and set aside the order dated 22/04/2008 passed by learned Additional Sessions Judge, Fast Track Court No.1, Gandhinagar in Criminal Revision Application No.18 of 2008 thereby directing not to give custody and possession of the Mahindra Maxx Jeep bearing Registration No.GJ-18-X-230 and bearing Engine No.GA54M70999 and Chasis No.53M98527 lying and situate at Dabhoda Police Station.
2. It appears that vehicle in question was detained by the concerned Police Officer of Dabhoda Police Station in exercise of powers under Sections 41(1)(d) of the Code of Criminal Procedure read with Section 124 of the Bombay Police Act from Munno @ Himatgiri Hiragiri, who was at the relevant time driving the said vehicle in question with 5 Kerbas of Diesel and as at the relevant time the said person could not produce the relevant documents of the said vehicle as well as Diesel Kerbas. The concerned Police Sub-Inspector sent report to the learned Judicial Magistrate, First Class, Gandhinagar for complaint under Section 124 of the Bombay Police Act. That thereafter, the petitioner submitted application before the concerned Magistrate under Sections 451 and 457 of the Code of Criminal Procedure seeking custody and possession of the aforesaid Vehicle in question. Before learned Magistrate, No Objection Certificate of the concerned person/owner of the said vehicle whose name appeared in the RTO book was also produced. It was also submitted that as such the petitioner has given finance on the said Vehicle in question. Therefore, custody and possession of the vehicle in question was sought by the petitioner. By order dated 07/02/2008, learned Judicial Magistrate, First Class, Gandhinagar dismissed the said application.
Being aggrieved by and dissatisfied with the order dated 07/02/2008 passed by learned Judicial Magistrate, First Class, Gandhinagar rejecting the application submitted by the petitioner – Finance Company seeking custody and possession of the aforesaid vehicle in question, the petitioner herein preferred Criminal Revision Application before learned Additional Sessions Judge, Gandhinagar, which has been dismissed by learned Additional Sessions Judge, F.T.C.No.1, Gandhinagar by judgement and order dated 22/04/2008. Being aggrieved by and dissatisfied with the impugned orders passed by both the Courts below, the petitioner herein – Finance Company has preferred the present petition under Article 226 of the Constitution of India.
3. Mr.Dharmesh Shah, learned advocate appearing on behalf of the petitioner has submitted that both the Courts below have materially erred in rejecting the application submitted by the petitioner for giving custody and possession of the vehicle in question to the petitioner. It is further submitted that original owner, who took the finance from the petitioner on the aforesaid vehicle in question, had given no objection if the custody and possession of the vehicle in question is given to the petitioner. It is further submitted that as such vehicle in question was not stolen one and/or suspected to be stolen. It is submitted that when the petitioner – Finance Company produced all the necessary documents with respect to ownership of the vehicle in question inclusive of the finance papers, there was no reason for the learned Magistrate to reject the application and deny to hand over custody and possession of the vehicle in question to the petitioner. It is submitted that by keeping the vehicle in question idle, the condition of the vehicle is likely to be deteriorated and to some extent it is deteriorated. Therefore, it is requested to hand over the custody and possession of the vehicle in question to the petitioner on suitable conditions.
4. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent Nos.1 and 2 has requested to pass an appropriate order in the facts and circumstances of the case.
5. Having heard Mr.Dharmesh Shah, learned advocate appearing on behalf of the petitioner herein and Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent Nos.1 and 2 and considering the impugned orders passed by both the Courts below and considering the facts and circumstances of the case, when the petitioner – finance company has produced all the necessary documents with respect to ownership of the vehicle in question inclusive of the finance papers and the concerned person/owner of the said vehicle whose name appeared in the RTO book of the vehicle in question, has said no objection, it appears to the Court that both the Courts below have materially erred in not giving custody and possession of the vehicle in question to the petitioner. On suitable conditions, learned Magistrate ought to have hand over custody and possession of the vehicle in question to the petitioner. Learned Revisional Court has also materially erred in dismissing the Criminal Revision Application filed by the petitioner and confirming the order passed by learned Judicial Magistrate, First Class, Gandhinagar.
6. In view of the above and for the reasons stated hereinabove, the petition succeeds and the impugned order dated 07/02/2008 passed by learned Judicial Magistrate, First Class, Gandhinagar below Exh.2 in Non-cognizance, Entry No.6/2007 in the Police Diary of Dabhoda Police Station as well as the impugned order dated 22/04/2008 passed by learned Additional Sessions Judge, Fast Track Court No.1, Gandhinagar in Criminal Revision Application No.18 of 2008 are hereby quashed and set aside and it is ordered to hand over custody and possession of the Mahindra Maxx Jeep bearing Registration No.GJ-18-X-230 and bearing Engine No.GA54M70999 and Chasis No.53M98527 at present lying and situate at Dabhoda Police Station to the petitioner herein on condition that the petitioner shall not transfer and/or alienate the vehicle in question and shall produce the same before the concerned Magistrate as and when required. However, it is observed that in case, the petitioner proposes to dispose of the said vehicle in question, the same can be done with the permission of the learned Magistrate and on furnishing security to the satisfaction of the learned Magistrate with respect the value of the vehicle in question. As and when such application is made, the same be considered by the learned Magistrate in accordance with law and on merits. Rule is made absolute to the aforesaid extent.
[M.R.SHAH,J] *dipti