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2006 DIGILAW 57 (JK)

Mansoor Ahmad Wani v. State Of J. &K.

2006-03-22

J.P.SINGH

body2006
1. Manzoor Ahmed Wani, petitioner, seeks, quashing of order dated 24.05.2005 of learned Additional Sessions Judge, Ramban whereby he has directed the police to take possession of vehicle No.4456-/DL6CK during the currency of proceedings titled ˜State V/s Manzoor Ahmed™ under Sections 379,467,468, 471 & 420 RPC before him, after cancelling the Supurdari of the petitioner, who was allowed to retain it in terms of his earlier order dated 14.08.2003. 2. Sh. O.P. Thakur, learned counsel for petitioner, submits that the order impugned in the petition amounts to review of order dated 14.08.2003, which course was impermissible. He further submits that Learned Sessions Judge had invoked jurisdiction under Section 517 of the Code of Criminal Procedure, which provision was not attracted in the facts and circumstances of the case because power under Section 517 Cr.P.C., could be exercised only at the time the trial is concluded. 3. Sh. B.S. Salathia, learned Addl. Advocate General appearing for the State has on the other hand submitted that the order passed by the learned Additional Sessions Judge, Ramban, does not suffer from any error of law and has been passed in the interests of justice and to ensure that no prejudice is caused to the prosecution during the trial of the case. Sh. Salathia submits that the petitioner has been proved to be involved in the case, in which the vehicle was seized and if the vehicle continues to remain with the petitioner, this would result in permitting the accused to destroy the evidence, which the vehicle would furnish against the petitioner. Sh. Salathia further submits that the order passed by the learned Additional Sessions Judge, Ramban, does not result in miscarriage of justice. It, on the other hand, has been passed to protect the interests of justice. He prays for rejection of the petition. 4. I have considered the submissions of learned counsel for the parties. True, it is, that learned Additional Sessions Judge, Ramban, has referred to Section 517 Cr.P.C., in his order while directing that the vehicle in question would remain in the Supurdari of learned Judicial Magistrate, Banihal, while the trial had not yet concluded; but this defect would not cause any prejudice to the petitioner because learned Sessions Judge did posses the jurisdiction to pass orders for the custody of the vehicle under Section 516-A of the Code of Criminal Procedure. For facility of reference, Section 516-A of the Code of Criminal Procedure, is reproduced as under: - 516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such orders as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or 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.� 5. In view of what is contained in Section 516-A Cr.P.C., I would treat the order of the learned Additional Sessions Judge, Ramban, as the one passed under Section 516-A Cr.P.C. Learned Sessions Judge has given following reasons for passing the order impugned in the petition. These reasons read, thus: - The court during hearing, asked Mr. Salim Raja Advocate counsel of superdar to show RC of vehicle No.4456 DL 6 CK so that the court takes a decision after going through the RC as to who is the registered owner of this vehicle. RC has not been produced. Registration certificate is a very important document and the name of the registered owner can be ascertained from this document. When the RC is not produced before the Court, it becomes difficult for the court to find out as to who is the registered owner of the vehicle because the person who has superdari of the vehicle is an accused in FIR No. 121/03 and as per the allegations of prosecution, car has been stolen by Manzoor Ahmed the superdar of the vehicle. Counsel appearing for the superdar has stated that one Rayaz Ahmad has sold the car to the superdar and has executed power of attorney in respect of this vehicle in favour of the Manzoor Ahmed. The court in FIR No. 121/03 has framed charge against accused Manzoor Ahmed the superdar of the vehicle No. 4456 DL 6CK for the offence n/s 379/467/46S/ 471/420 RPC and prosecution has been directed to lead evidence. The court in FIR No. 121/03 has framed charge against accused Manzoor Ahmed the superdar of the vehicle No. 4456 DL 6CK for the offence n/s 379/467/46S/ 471/420 RPC and prosecution has been directed to lead evidence. The RC of the vehicle has not been produced, the production of this document would have helped the court in ascertaining the name of the registered owner because no registered owner has come forward to take the vehicle on superdnama. The present superdar Manzoor Ahmed who is accused in FIR No. 121/03 is placing reliance on Power of Attorney. According, to him the vehicle has been sold to him by one Rayaz Ahmad and has executed a Power of Attorney in this behalf. In my opinion much reliance cannot be placed on this document. The grievance of the prosecution is that Manzoor Ahmed is accused in FIR No. 121/03 and the vehicle cannot be given to him on the superdnama because the case of the prosecution is that Manzoor Ahmed has stolen the car and a criminal case is pending against him. It is true that accused is facing trial in this court in FIR No. 121/03 and has been charged for the offences u/s 379/467/468/471/420 RPC and prosecution is directed to lead evidence. Keeping in view the facts and circumstances of this case particularly when the RC of the vehicle has not been produced, it would not be just and proper to keep the vehicle on the superdnama of the accused Manzoor Ahmed. My predecessor has placed the vehicle on the superdnama of the accused Manzoor Ahmed but keeping in view the facts and circumstances of the case and the application of the prosecution, the supcrdari of vehicle No.4456 DL 6CK is canceled and the vehicle is kept on the superdnama of Judicial Magistrate, Banihal instead of Manzoor Ahmed earlier superdar. Judicial Magistrate Banihal will keep the vehicle under his custody and take due care and caution for the safe custody and protection of the vehicle. A cop> of this order be immediately sent to earlier superdar Manzoor Ahmed through his counsel and another copy of this order be sent to Id. Munsiff, Judicial Magistrate Banihal for compliance. In case Judicial Magistrate Banihal requires the assistance of police while taking car No. 4456 DL 6CK on superdnama from Manzoor Ahmed, Dy. S.P. Banihal will provide him assistance under law. Munsiff, Judicial Magistrate Banihal for compliance. In case Judicial Magistrate Banihal requires the assistance of police while taking car No. 4456 DL 6CK on superdnama from Manzoor Ahmed, Dy. S.P. Banihal will provide him assistance under law. Application is accordingly disposed of.� 6. I do not find any impropriety or illegality in the reasons given by the learned Additional Sessions Judge, in revoking the Superdnama of the petitioner and directing it to be kept on the Superdnama of Judicial Magistrate, Banihal. 7. A person accused of an offence and that too of stealing a vehicle, cannot be given the possession, thereof pending trial against him particularly when he fails to produce before the Court any such material including the Registration Certificate showing, prima facie, proof of his being the registered owner of the vehicle. There was sufficient material before the learned Sessions Judge to direct the placing of vehicle on the Superdnama of Judicial Magistrate, Banihal, so as to ensure that no prejudice is caused to the prosecution and the accused does not succeed in destroying the evidence against him. There was enough material on records showing that the petitioner was accused of fabricating false document in regard to the vehicle in question. Change of Superdari, in respect of vehicle, in the facts and circumstances of the case would not, in my opinion, give any right to the petitioner to question such an order in this Court because the change in Superdari of the vehicle, does not amount to either abuse of the process of the Court or miscarriage of justice. I find yet another illegality in the earlier order of learned Additional Sessions Judge, Ramban, dated 14.08.2003. Learned Additional Sessions Judge appears to have exercised jurisdiction in releasing the properly on the Superdnama of the petitioner, which jurisdiction did not vest in him because power of release of moveable property during the currency of the investigation could be exercised only by a Magistrate and not by a Sessions Judge. The order of release of property on Superdnama of the petitioner by the Additional Sessions Judge on 14.08.2003 was, thus, without jurisdiction. The petitioner cannot, thus, even otherwise seekperpetuation of an order, which is without jurisdiction besides being unwarranted. For what has been stated above, I do not find any merit in this petition, which is, accordingly, dismissed.