Court No. - 65
Case :- CRIMINAL REVISION No. - 4888 of 2019 Revisionist :- Mukesh Kumar Opposite Party :- State of U.P.
Counsel for Revisionist :- Alok Rai,Rajan Babu Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the revisionist, Sri Mukesh Kumar Singh, learned counsel on behalf of Power Corporation and learned AGA for State.
The present revision has been filed for setting aside the impugned judgement and order dated 05.11.2019 passed by Additional Sessions Judge/Special Judge (E.C. Act), Court No. 4, Shahjahanpur in Release Application No. 321 of 2019 (State Vs. Pranay Ranjan) whereby the Release Application of Scrap Acsr Conductor involve in Case Crime No. 462 of 2019, under section 411, 379 IPC, 136 Electricity Act, Police Station Khutar, District Shahjahanpur in favour of revisionist.
Learned counsel on behalf of revisionist submits that the revisionist is the proprietor of M/s Kumar Paper Mill Suppliers (G.S.T.) and is doing business activities from District Muzaffarpur (Bihar), the nature of work of the above said firm is to collect scrap electrical wires from North Bihar Power Distribution Company Ltd. and Jodhpur Vitran Nigam Ltd. and also from other companies. The said scraps is reworked in the industry of revisionist. Further reworked scraps are sold in the market for any further uses. The scraps is purchased in the auction proceedings conducted by various departments. The said scrap materials were reworked in the industry of the revisionist and on the order obtained from M/s Guru Ji Metal Delhi from Muzaffarpur in Truck No. BR-06 GC-6251. The said truck met with an accident at Police Station Khutar and the first information report was registered against the driver of the truck on 22.09.2019. The Police arrested Pranay Ranjan on the same date without considering the documents. Pranay Ranjan was released on bail vide order dated 04.10.2019.
The revisionist move an application for release of the said scrap conductors and the items loaded on truck vide application no. 321 of 2019 before Additional Sessions Judge/Special Magistrate (E.C. Act) Court No. 4 of Shahjahanpur dated 10.10.2019.
The learned court below had rejected the said release application vide order dated 05.11.2019 observing that confiscated item could be required for investigation and in such circumstances cannot be released.
Learned counsel for the revisionist submitted that till date no charge sheet has been filed by the police and no investigation is being done to conclude the matter to its logical end. The revisionist herein had produced all material documents before police to prove his ownership of the said items but no action has been taken till date. The items in question are lying openly in police station without any security and is being damaged as such will be of no use of the revisionist if not released at earliest.
He lastly submitted that the reason given by the learned Additional Sessions Judge/Special Magistrate (E.C. Act) in the impugned order for rejecting the revisionist's prayer for releasing the said scrap conductors and the items loaded on truck in his favour that the same is case property runs contrary to the law laid down by the Apex Court in the case of Sundar Bhai Ambalal Desai Vs State of Gujrat 2003(1) , J.I.C.615, SC and hence the impugned order can not be sustained and is liable to be quashed.
Per contra learned AGA made his submissions in support of the impugned order.
I have heard learned counsel for the parties present , perused the impugned order as well as other materials brought on record and the case law cited on the subject by the learned counsel for the applicant In view of the law laid down by the Apex Court in the case of Sundar Bhai Ambalal Desai (Supra) as well as this Court in the case of Vasudev Kesarwani, the scrap conductors and the items loaded on truck which are case property can not be withheld by the court till disposal of the trial only on the ground that such properties are case properties. Section 457 of the Code lays down the provision for releasing the property seized by the police which is not produced before the Court during inquiry or trial . The provision under Section 457 of the Code is being extracted below:
'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 can not 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"
As per requirement of the provisions under Section 457 of the Code the property which has been seized by the police under the provision of the Code and has not been produced before the 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. In this case, what was required of the learned Magistrate was that he should have ascertained as to who was entitled to the custody of scrap conductors and the items loaded on truck. After ascertaining the person entitled to the custody of said scrap conductors and the items loaded on truck he should have passed order for custody of scrap conductors and the items loaded on truck in view of the provisions under Section 457 of the Code. The learned Magistrate rejected the application only on the ground that the scrap conductors and the items loaded on truck were case property which were required to be produced during the trial but the custody of scrap conductors and the items loaded on truck could not have been denied to the applicant by the learned Magistrate, rather the property should have been disposed of by him in accordance with the provision under Section 457 of the Code . Thus the impugned order is bad in the eyes of law and is liable to be set aside and the matter deserves to be remanded back to the learned Magistrate for his fresh decision in the matter in accordance with the provisions of Section 457 of the Code.
The order dated 05.11.2019 passed by Additional Sessions Judge/Special Judge (E.C. Act), Court No. 4, Shahjahanpur in Case Crime No. 462 of 2019, under section 411, 379 IPC, 136 Electricity Act, Police Station Khutar, District Shahjahanpur is hereby quashed and the matter is remitted back to the learned Magistrate with a direction to him to dispose of the application moved by the revisionist afresh keeping in view of the Provisions of 457 of the Code within a period of six weeks from the date of production of certified copy of this order before him.
Order Date :- 20.12.2019 Arti