(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Rule.
Mr Pandya waives service of notice of Rule.
2. The present application has been preferred by the applicant original accused No. 1 for release of muddamal vehicle Scorpio Car bearing registration No. GJ 3CE5454.
3. We have heard Mr. Dattani for the petitioner and Mr Pandya, learned Additional Public Prosecutor for the State.
4. It appears that a similar matter came to be considered by this Court of holding inquiry under section 451 of the Code of Civil Procedure when the appeal is at large pending before this Court for muddamal or otherwise in Criminal Misc. Application No. 17851/11 decided on 9th January 2012. This Court in the above referred matter observed thus :
4. It appears that after the trial was over, the applicant preferred application under Section 451 of the Code of Criminal Procedure for getting custody of the aforesaid two Motorcycles. The learned Sessions Judge did not grant the application on account of the fact that the papers are forwarded to this Court and the appeal has been preferred by the State.
5. It is a fact that no inquiry has been held by the learned Sessions Judge on the aspect of handing over of the muddamal. When the application was made, since the appeal was pending, the learned Judge has declined to exercise the power. As such, when the application under Section 451 of the Code has been made, it is for the learned trial Court to hold inquiry and then to pass the order. But as the appeal has been preferred before this Court, such inquiry has not been initiated and the application has been rejected.
6. Considering the facts and circumstances, we find that the appropriate inquiry under Section 451 of the Code is required to be made by the learned Sessions Judge and at that stage, he may examine the genuineness of the claim made by the applicant and he may also verify and examine as to whether any other party including any third party has made any claim for the property - muddamal in question or not. Thereafter, the appropriate orders can be passed. It would not be convenient for this Court to hold such an inquiry.
7. Under the circumstances, it is directed that the learned Sessions Judge shall hold inquiry under Section 451 of the Code for the claim of muddamal made by the applicant. Such inquiry shall be completed preferably within a period of six months from the receipt of the order of this Court. After the inquiry, the learned Sessions Judge shall pass appropriate orders but the implementation thereof shall be only after such leave is so expressly granted by this Court. The applicant shall be at liberty to move appropriate application for implementation of the order of the learned Sessions Judge which may be passed at the conclusion of the inquiry by filing appropriate application in the present proceedings of appeal.
8. In view of the aforesaid directions, it is observed that the application made by the applicant being Criminal Misc. Application No.156 of 2011 shall stand restored with the learned Sessions Judge and order passed below the said application dated 04.06.2011 shall not survive with the further direction that the learned Sessions Judge shall hold an inquiry as indicated hereinabove.
5. The same view deserves to be taken in the present matter. However, distinguishing circumstances of that matter with the present matter, is that the learned Sessions Judge vide para 2 of the operative order of the judgment has directed the Lower Court for holding inquiry. In our view, such inquiry is to be held by the trial court which has conducted the trial. Therefore, it will be for the learned Sessions Judge to hold an inquiry under section 451 for handing over of the muddamal in accordance with law.
6. Learned Sessions Judge thereafter, may pass appropriate order for handing over the muddamal to the concerned party in accordance with law but the order shall not be implemented by the learned Sessions Judge unless it is so expressly permitted by this Court in the present proceedings of the appeal.
7. The aforesaid exercise shall be completed by the learned Sessions Judge of holding inquiry and passing appropriate order preferred within a period of six months from the date of making of the application.
8. After the order is passed by the learned Sessions Judge, it would be open to the petitioner concerned to move appropriate application seeking implementation of the order of the learned Sessions judge under Section 451 of Criminal Procedure Code.
9. In view of the earlier direction, issued by this Court, the order passed by the learned Magistrate dated 3rd October 2011, below the application at Annexure B, shall not survive.
8. This application is disposed of interms of the aforesaid direction. Rule absolute accordingly. Direct service is permitted.
(Jayant Patel,J.) (Paresh Upadhyay,J.) mary// Top