Court No. - 73
Case :- APPLICATION U/S 482 No. - 6389 of 2019 Applicant :- Mohd. Azhar Khan Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Lal Prabhakar Singh Counsel for Opposite Party :- G.A.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the impugned order dated 16.4.2018 passed by Incharge Judicial Magistrate, Bisauli, Budaun in Case Crime No. 1105 of 2017, under sections 279, 337, 338, 427 I.P.C. and order dated 1.12.2018 passed by ADJ 7th, Budaun in Revision No. 63 of 2018, P.S. Wazirganj, District Budaun.
Learned counsel for the applicant submits that one incident took place and FIR dated 14.12.2017 has been lodged against 11 unnamed persons in which Bullet Motor Cycle of applicant was seized by the police. Thereafter, he has moved an application under section 451 Cr.P.C., which was rejected on the ground that the applicant has not produced driving license, therefore, in light of Uttar Pradesh Motoryan (Gyarahwan Sanshodhan) Niymawali, 2011, vehicle cannot be released. He further submits that after obtaining learning license, he has filed Criminal Revision No. 63 of 2018, which was also dismissed vide order dated 01.12.2018 on a new ground that applicant has not produced valid insurance, polution certificate and original driving certificate, which is not required under the law for release of vehicle. He further submits that he is only claimant of vehicle in dispute. In support of his contention, he has placed reliance upon the judgement of the Apex Court in the cases of Union of India Vs. Dinesh Kumar Verma: (2005) 9 SCC 330 and Sunderbhai Ambalal Desai Vs. State of Gujrat: 2003 (46) ACC 223 as well as of this Court in the case of Ramesh Chandra Junwal Vs. State of U.P.: 2015 Law Suit (AII) 1191.
Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which reads thus--
"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 of trial, the Court may make such order as it thinks fit for the property 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.
(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."
Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as--
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural decay to dispose of the same.
In my opinion the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. However, if the material on record indicates that such articles belong to the complainant then seized articles be handed over to the complainant after :
(1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.
Hon'ble Apex Court in the Sunderbhai Ambalal Desai(Supra) has held as under:-
"Criminal Procedure Code, 1973-Section 451-Disposal of property-During pendency of criminal trial-Powers under Section 451-Should be exercised expeditiously and judiciously- Powers under Section 451 to be properly and promptly exercised-It would serve various purposes-Seized articles be handed over to complainant, if belong to him-Court may follow the procedure of recording evidence required for-Bond and security should be taken-Photographs of such articles should be attested and countersigned by complainant, accused and the person to whom custody is given-Court can impose any other appropriate condition-Detail guidelines and procedure of exercise of power under Section 451 enumerated."
In view of above, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under section 451 Cr. P. C. 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 countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under 451 Cr. P. C to impose any other appropriate condition.
I have gone through the record of court below. Court below has not given any cogent reason for rejecting the application for release of vehicle and it is only stated that the applicant has not produced valid insurance paper, pollution certificate and original driving certificate, which is not sustainable in the eye of law and the same is liable to be set aside.
Accordingly, the application is allowed. The impugned order rejecting the application for release of vehicle in question is set aside and application for release stands allowed. The vehicle in question will be released in custody of the revisionist by the court below upon furnishing of a personal bond and one surety to the satisfaction of court concerned and subject to the conditions imposed by the court as per observations made in the body of order.
Let a copy of the order be sent to court below for compliance and necessary action.
Order Date :- 22.2.2019 Arvind