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2005 DIGILAW 97 (JK)

Gh. Mohd. Sheikh v. State Through SHO, P/S Soura

2005-04-05

MANSOOR AHMAD MIR

body2005
1. It appears that vehicle (truck) bearing No. 9657/JK02 has been seized by the police station Soura in FIR No. 04/2005 under section 379 of RPC read with 207 of Motor Vehicles Act. The petitioner No. 1 Ghulam Mohammad Sheikh moved an application for release of the said vehicle in the court of learned Chief Judicial Magistrate, Srinagar, who transferred the same to Ist Class Judicial Magistrate (4th Additional Munsiff), Srinagar. The learned Ist Class Judicial Magistrate passed an order dated 9th Feb., 2005 and commanded the concerned police to release the vehicle in favour of its registered owner after obtaining the documents and superdnama. 2. The petitioners are aggrieved of the condition imposed by the learned Magistrate in terms of the order referred hereinabove and have prayed for quashing of the condition of releasing the vehicle in favour of its registered owner after obtaining the documents from him. 3. Mr. Watali argued that the condition imposed is an abuse of process of law and is without jurisdiction. It was duty of the learned Magistrate to release the vehicle on superdnama without imposing the conditions and referred a judgment of the Apex Court reported in AIR 2003 SC 638, Sunderbhai Ambalal Desai v. State of Gujarat. Mr. Watali heatedly argued that the interim custody of the vehicle should have been given to the person from whose possession the same has been recovered. The petitioner No. 1 had driven the vehicle (truck) in question without the knowledge of the petitioner No. 2 who has purchased the same from `Bangroo Motors on instalment basis. The petitioner has not paid full sale price and that is why `Bangroo Motors have not executed the sale documents so far. The vehicle can not be detained in police station for more than 15 days. 4. Mr. Rathore argued that the petition is not maintainable because property is in custodia legis and the Magistrate is within his powers to pass appropriate orders during the investigation and trial about the interim custody of the vehicle. The Magistrate has to pass final direction after the trial is over. 5. Considered. The petitioner No. 1 (accused) was driving the vehicle at the relevant time without driving licence. The alleged owner petitioner No. 2 is not having any document suggesting the fact that he is the owner of the vehicle in question. The Magistrate has to pass final direction after the trial is over. 5. Considered. The petitioner No. 1 (accused) was driving the vehicle at the relevant time without driving licence. The alleged owner petitioner No. 2 is not having any document suggesting the fact that he is the owner of the vehicle in question. The petitioners have annexed document i.e. Photostat copy of receipts which appears to have been issued by Bangroo Motors in favour of the petitioner No. 2, but the said documents do not prima facie disclose that the vehicle in question has been sold by Bangroo Motors to petitioner No. 2. If Bangroo Motors would have been the owner of vehicle in question then the documents would have been in their name. No such document has been annexed with the file. 6. Motor Vehicles Act and Motor Vehicle Rules mandate how to purchase the vehicle and how to ply the same. A vehicle cannot be plied without obtaining requisite documents in terms of the Motor Vehicles Act and Motor Vehicle Rules from the office of Regional Transport Officer concerned. The driver must possess valid driving licence. 7. The vehicle in question cannot be released in favour of the petitioners because petitioners have not produced the documents. Not to speak of documents, the petitioners have even failed to produce agreement to sell and driving licence. If such an order is passed by the Magistrate, that will be against the mandate of Motor Vehicles Act and Motor Vehicle Rules. The Magistrate while passing the order has to prima facie hold `who is entitled to the possession. 8. The provisions of Section 523 Cr.P.C. can be pressed into service when property has not been produced before the court and the enquiry/trial has not begun. This means that remedy provided under Section 523 Cr.P.C. can be pressed into service during the investigation stage provided the property has not been produced before the court. The remedy in terms of Section 516-A Cr.P.C. can be availed when the property is produced before the Court during the enquiry and trial. 9. While going through the impugned order, it appears that Magistrate has passed order in terms of Section 523 of Cr.P.C. 10. Now the question is, whether the claimant is entitled to the possession of the vehicle who is not armed with the document(s) in his armoury. 9. While going through the impugned order, it appears that Magistrate has passed order in terms of Section 523 of Cr.P.C. 10. Now the question is, whether the claimant is entitled to the possession of the vehicle who is not armed with the document(s) in his armoury. Keeping in view the above discussion the question in consideration is answered in negative. The police report is silent about the fact that whether the possession of vehicle in question is legal or illegal. Whether the vehicle has been obtained by means of fraud or during the commission of any offence and whether the said vehicle is stolen one? The Investigating Officer should have thrashed out and marshaled out the said aspect during the investigation. 11. The impugned order is interlocutory one and no revision is competent against the same. This court has held that if a seized vehicle/property is released on superdnama, that order is purely an interlocutory order. The said judgment is reported in SLJ 1981 page 205 Mohd. Gulzar v. Charangjeet and Anr. The subordinate criminal courts have powers to modify, alter or vary the interlocutory orders till final orders are passed for the following reasons;- Section 369 Cr.P.C mandates that court cannot alter the judgment. Section 369 Cr.P.C. reads as under;- "369. Court not to alter judgment. -- Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the Same, except to correct a clerical error." 12. While reading this provision of law, the bar contained in Section 369 Cr.P.C. operates only against a judgment and does not apply to interim or interlocutory order. My this view is fortified by a judgment of the Division Bench of this Court in Mirza Mohd. Afzal Beg and others v. State of J&K and others AIR 1960 J&K page 1. 13. Honble High Court of Jammu and Kashmir has also held in a judgment reported in KLJ 1987, page 712, Naranjan Kour v. State of J&K & Ors., that the courts have powers to alter or modify the interim order at any stage. It is profitable to reproduce para-6 of the judgment herein;- "6. 13. Honble High Court of Jammu and Kashmir has also held in a judgment reported in KLJ 1987, page 712, Naranjan Kour v. State of J&K & Ors., that the courts have powers to alter or modify the interim order at any stage. It is profitable to reproduce para-6 of the judgment herein;- "6. On its plain reading the bar contained in Sec.369 Cr.P.C. operates only against a judgment and does not extend to interim or interlocutory orders. Orders which are of purely interim and temporary nature and do not decide or touch the important rights of the parties, cannot be termed as a judgment. It is well settled that orders, for instance, of summoning witnesses, adjourning cases, calling reports and for taking such other steps in aid of the pending proceedings are merely interlocutory orders and not judgments. Therefore, the bar on the courts to review or alter its own judgments under Sec. 369 Cr.P.C. cannot extend to interlocutory orders." 14. Viewed thus the subordinate criminal court has powers to modify or alter the orders which are not final but are purely interim or interlocutory in nature. 15. The petitioners should have moved an application before the concerned Magistrate for appropriate remedy, if there was change of circumstances. But the remedy in terms of Section 561-A Cr.P.C. is not available to the petitioners and the impugned order cannot be quashed in terms of Section 561-A Cr.P.C. Section 561-A Cr.P.C., read as under;- "561-A. Saving of inherent power of High Court. -- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 16. The exercising of powers under section 561-A Cr.P.C. is an exception and not the rule. This provision of law does not confer any new powers on the High Court. It prescribes three circumstances under which inherent jurisdiction can be exercised;- (1) to give effect to an order under the Code; (2) to prevent abuse of the process of Court; and (3) to otherwise to secure the ends of justice. 17. While exercising powers under this Section, this court does not function as an appellate court or revisional court. It prescribes three circumstances under which inherent jurisdiction can be exercised;- (1) to give effect to an order under the Code; (2) to prevent abuse of the process of Court; and (3) to otherwise to secure the ends of justice. 17. While exercising powers under this Section, this court does not function as an appellate court or revisional court. Thus the inherent jurisdiction in terms of this Section is to be exercised sparingly, carefully and with caution and only when such action is justified by the tests laid down in the Section itself. 18. While applying the test to the instant case, the learned Magistrate has passed an appropriate order which has been passed in the interests of justice and by no stretch of imagination it can be said that imposition of condition is an abuse of process of law. 19. The Apex Court has passed a judgment reported in AIR 2003 SC 638 Sunderbhai Ambalal Desai v. State of Gujarat, and directions have been laid down in the said judgment that how to release a vehicle. Though the judgment has been passed in terms of Section 451 Cr.P.C. which correspond to 516-A of Cr.P.C.(J&K). It is profitable to reproduce paras-7 and 17 of the said judgment herein;- "7. In our view, the powers under Section 451, Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation: 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate, orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate, orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles." 20. While going through the said judgment, the seized vehicles cannot be kept at police station and the Magistrate has to pass appropriate orders but that does not mean that vehicle is to be released in favour of the accused or in favour of a person who is not armed with document(s) in his armoury. The vehicle is to be released in favour of the owner or in favour of a person in whose favour agreement to sell or power of attorney has been executed by the registered owner. If the vehicle is released in favour of a person who does not possess the documents, that will be against the mandate of Motor Vehicles Act and Rules. Thus this judgment does not support the case of the petitioners. 21. Viewed thus the petition in hand is misconceived. While parting with, I deem it proper to pass the following directions herein;- (i) It is now common in Kashmir province for last a few years that vehicles are being stolen/ lifted and the case are being registered before the police about the theft of vehicles. The police also seizes vehicles in some cases , but some of the vehicles are kept in police stations which remain unclaimed or cannot be released for want of documents. (ii) The Inspector General of Police, Kashmir Range shall furnish detailed report before learned Registrar Judicial, of this wing of the court within two months to the effect that how many vehicles have been seized from 1st January 2000 till today in Kashmir province; how many vehicles have been released by the courts; how many cases have been produced before the court which are subjudice and how many challans are yet to be presented; And how many vehicles are still kept at police stations. (iii) The learned Registrar Judicial shall after receiving the report examine all the papers and case diaries and then sent report along with copies of this order to the concerned Chief Judicial Magistrates for passing appropriate orders in terms of the Apex Court judgment (supra). Learned Chief Judicial Magistrates concerned shall take note of subsequent developments, if any. Subsequent development mean the judgments which have been passed by the Apex Court and High Courts after 01.10.2002 or which will be passed or any legislation which has been made thereafter or which will be made. (iv) In case some of the said cases are pending trial before or triable by, Special Judge or before District & Sessions Judge, then in that event the Special Judge and District & Sessions Judge concerned shall pass the orders keeping in view the directions contained hereinabove. (v) The Investigating Officer of FIR No. 04/2005 P/S Soura shall submit report before the learned Chief Judicial Magistrate, Srinagar to the effect that why and how the vehicle in question was being plied without papers, and who is the owner as per the record maintained in the office of Regional Transport Officer concerned. (vi) The Investigating Officer shall also address to the fact that whether `Bangroo Motors have sold the vehicle in question and whether Photostat copy of receipts annexed with this petition are genuine or otherwise. And what is the role of `Bangroo Motors. The Investigating Officer shall submit report before learned Chief Judicial Magistrate, Srinagar within one month from today. (vii) The learned Chief Judicial Magistrate, Srinagar shall after expiry of the time frame submit report before learned Registrar Judicial, High Court of J&K, Srinagar about the compliance by the investigating officer. 22. The Registry is directed to take steps accordingly and also send Photostat copies of receipt of `Bangroo Motors to Investigating Officer. With these observations, the petition is dismissed.