1.0 Rule. Ms. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent State. In the facts and circumstances of the case, the present application is taken up for final hearing today.
2.0 Present application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicant hereinoriginal applicantoriginal accused to quash and set aside the impugned order passed by the learned Appellate Court learned 5th additional (Ad hoc) Sessions Judge, Nadiad dated 6.8.2012 passed in Criminal Miscellaneous Application No.414 of 2012 by which the application submitted by the applicant to handover the Muddamal Hero Honda Motorcycle to the applicant has been rejected.
3.0 That the applicant hereinoriginal accused no.4 and others are facing trial for the offences punishable under Sections 395, 452 and 114 of the IPC. That the during the course of investigation, the Muddamal Motorcycle Hero Honda Motorcycle bearing its Registration No. GJ7BC7985 having Engine No. HA10EA9HM99511 and Chassis No.MALHA10EE9H48626 of the ownership of the present applicant was seized. That thereafter, the applicant and other accused persons have been chargesheeted. As the Muddamal Motorcycle was lying with the custody of the concerned police station, the applicant submitted application under Section 451 of the Code of Criminal Procedure for released of Muddamal Motorcycle. However, by impugned order passed below Exh.5 the learned Appellate Court has rejected the said application. Hence, the original applicantoriginal accused no.4 has preferred present Criminal Revision Application.
4.0 Shri Pandav, learned advocate for the applicant has vehemently submitted that the learned Appellate Court has materially erred in rejecting the application submitted by the applicant and not handing over the possession of the Muddamal Motorcycle to the present applicant. It is submitted that as such there are no other antecedents and the Motorcycle is very much needed for use by his son. It is submitted that on suitable condition, the learned Appellate Court ought to have handed over the interim custody of the Muddamal Motorcycle to the applicant. It is submitted that by keeping the Motorcycle unused and that the police purpose would be served and on the contrary Motorcycle would become junk day by day. Relying upon the decision of the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2002 SCW 5301, it is requested to allow the application Exh.5 and direct to hand over the custody of the Muddamal Motorcycle to the applicant on any condition that may be imposed by this Court. Shri Pandav, learned advocate for the applicant has stated at the bar that if the Muddamal Motorcycle is handed over to the applicant the same shall not be misused by the applicant and same shall not be used for any illegal activities. It is submitted that if in future it is found that the applicant has again indulged into similar activity for which he is facing the trial and / or it is found that the applicant and / or his son have used the Muddamal Motorcycle for any illegal purpose, the Muddamal Motorcycle can be seized and in future the custody cannot be given to the applicant.
5.0 Ms. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent State has stated that except the present case there are no antecedents and it is not reported that the applicant is involved in other cases. Therefore, it is requested to pass appropriate order on suitable terms and conditions.
6.0 Having heard the learned advocates for the respective parties and considering the fact that by keeping the Muddamal Motorcycle unattended, the same is likely to become junk day by day and same cannot be in the interest of either parties. Under th circumstances and considering the judgment of the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai (Supra) on suitable condition to protect the interest of both the parties, the custody of the Muddamal Motorcycle can be given to the applicant.
7.0 In view of the above and for the reasons stated above, present Criminal Revision Application succeeds. The impugned order passed by the learned Appellate Court learned 5th additional (Ad hoc) Sessions Judge, Nadiad dated 6.8.2012 passed in Criminal Miscellaneous Application No.414 of 2012 is hereby quashed and set aside and it is directed to handover the custody of the Muddamal Hero Honda Motorcycle being No. GJ7BC7985 having Engine No. HA10EA9HM99511 and Chassis No.MALHA10EE9H48626 to the applicant on the following conditions;
1. That the applicant and / or any other person shall not use the Mudamal Motorcycle for any illegal use.
2. That the applicant shall furnish the bond of Rs.15000/ to the satisfaction of the trial Court.
3. That he shall not transfer the vehicle in question and keep the vehicle in the running condition till final disposal of the trial.
8.0 It is made clear that if it is found that in future the applicant is indulged into similar activity and / or it is found that Motorcycle in question has used by the present applicant and / or any other person for any illegal use the Muddamla Motorcycle shall be seized immediately and the custody of the same shall not be given to the present applicant. It will be open for the applicant to submit the appropriate for release of document relating to the Motorcycle before the learned Appellate Court, which shall be considered in light of the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
“kaushik”
sd/ ( M. R. Shah, J. )