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2007 DIGILAW 271 (ALL)

RASBIHARI CHANDRA YADAV v. STATE OF UTTAR PRADESH

2007-02-06

POONAM SRIVASTAVA

body2007
JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri B. K. Tripathi, learned Counsel for the petitioner and learned A.G.A. for the State. 2. The order dated 23.1.2007 passed by the learned Sessions Judge, Gorakhpur in criminal revision No. 345 of 2006, Rasbihari Chand Yadav v. State of U.P. and order dated 14.12.2006 rejecting the petitioner’s application for release of Tata Sumo Victa No. U.P. 53-AB 1245 (hereinafter referred to as the disputed vehicle), are impugned in the instant writ petition. 3. The petitioner claims himself to be the registered owner of the disputed vehicle. The registration certificate No. RC-0219163 dated 12.5.2006 is annexed as Annexure-1 to the writ petition. Insurance papers have also been produced in support of the petitioner’s contention. The vehicle was challaned by the Station Officer Khorabar, District Gorakhpur in connection with case crime No. 973 of 2006, under Sections 379, 411, I.P.C. read with 26 Forest Act and 3/28 T.P. Act. The first information report was registered on 27.11.2006, a copy of the same is annexed as Annexure-2. On the date and time of the alleged incident as detailed in the first information report, a truck was loaded with timber which is said to be a forest produce and was taken stealthily after falling the trees of the forest. Three accused sitting on the truck were arrested on the spot. The vehicle of the petitioner was standing behind the said truck which was driven by the petitioner. The allegation of the first information report further shows that the petitioner, on being questioned stated that he was getting the timber loaded on the truck and, therefore, the vehicle was also taken in custody. However, no timber or any forest produce was found in the Tata Sumo Victa sought to be released. The truck and disputed vehicle was taken in custody and is standing at the police station since then. The petitioner was bailed out on the basis of an order passed by the learned Sessions Judge on 11.12.2006. The bail order has been brought on record as Annexure-4. Learned Counsel for the petitioner has placed the order to support his contention that the disputed vehicle was only standing behind the truck which was carrying forest produce but nothing was recovered from the petitioner who was driving the disputed vehicle and bail was granted. The bail order has been brought on record as Annexure-4. Learned Counsel for the petitioner has placed the order to support his contention that the disputed vehicle was only standing behind the truck which was carrying forest produce but nothing was recovered from the petitioner who was driving the disputed vehicle and bail was granted. On the basis of these allegations, the submission is that the petitioner has nothing to do with the stolen forest produce or with the truck carrying it and, therefore, he has wrongly been challaned. An application was moved by the petitioner for release of the disputed vehicle but the Chief Judicial Magistrate rejected the application moved under Section 451, Cr.P.C. vide order dated 14.12.2006 which is annexed as Annexure-6. The application for release has been rejected only because it was opposed by the Assistant Prosecuting Officer. A criminal revision was preferred against the said order and the revisional Court rejected the revision on the ground that under Section 52-D of the Indian Forest Act, it is only the State Government who has exclusive jurisdiction for release, disposal or distribution of the property (forest produce belonging to the State Government). 4. After hearing the respective Counsel at length and going through the record, I am not in agreement with the orders passed by the Courts below. The proceeding pending before the trial Court is prosecution of the accused who had been taken into custody on the basis of the first information report registered at case crime No. 973 of 2006, under Sections 379, 411, I.P.C. read with 26 Forest Act and 3/28, T. P. Act. However, it is correct that the disputed vehicle is neither a forest produce nor any forest produce was recovered from the said vehicle, therefore, the provisions of Section 52-D does not come into play at all. Besides, assuming that the disputed vehicle is involved in a case which relates to an offence under Section 26 of the Forest Act, even then this Court can very well exercise powers under Article 226 of the Constitution of India for release of motor vehicle or any other article. 5. Besides, assuming that the disputed vehicle is involved in a case which relates to an offence under Section 26 of the Forest Act, even then this Court can very well exercise powers under Article 226 of the Constitution of India for release of motor vehicle or any other article. 5. In the case of Jugal Kishore and others v. State of U.P. and another, 1994 (2) ACJ 1030, it was held that the Magistrate will have jurisdiction to release the vehicle pending trial under Section 451, Cr.P.C. Assuming the jurisdiction is not with the Magistrate for release of article, even then the Division Bench in the case of Jugal Kishore (supra) has ruled that “If the vehicle is not released temporarily the police officer or person authorized has to decide the question as to whether the owner has committed any offence or the offence is to be compounded. This exercise has also to be completed within reasonable period of time. When the police officer or authorized person does not release the vehicle so seized on being satisfied that an offence has been committed or refuses to compound the offence, he is duty bound to complete the investigation/inquiry within a reasonable time what is a reasonable time in a given case would depend on the peculiar facts and circumstances of that case and to file a complaint before the Magistrate competent to try the case and the Magistrate on the complaint being so laid before him would have the jurisdiction to release the vehicle pending trial as provided under Section 451, Cr.P.C. and later on to pass an order as to the final disposal of the vehicle as provided under Section 451, Cr.P.C. at the conclusion of the trial. 6. Reliance has been placed on a decision of the Apex Court in the case of Sunder Bhai Ambalal Desai v. State of Gujarat, 2003 (46) A.C.C. 223 where the Hon’ble Supreme Court has clearly held that the powers under Section 451, Cr.P.C. should be exercised expeditiously and judiciously. 6. Reliance has been placed on a decision of the Apex Court in the case of Sunder Bhai Ambalal Desai v. State of Gujarat, 2003 (46) A.C.C. 223 where the Hon’ble Supreme Court has clearly held that the powers under Section 451, Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes : (i) Owner of the article would not suffer because of its remaining unused,(ii) Court or the police would not be required to keep the article in safe custody, (iii) If a proper panchnama before handing over article is prepared, that can be used in evidence instead of its production before the Court during the trial, if necessary, (iv) 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. The Apex Court has clearly held that appropriate orders should be passed immediately because keeping it at police station for a long period would only result in decay of the article. The Court should ensure furnishing of adequate bond, guarantee or security in accordance with facts and circumstances of each case. Several other decisions have been brought before the Court in support of petitioners’ contention, where the Courts have considered the release of goods on the principle laid down in the case of Sunder Bhai Ambalal Desai (supra) to ensure that no loss is caused to its owner on account of continuous detention. 7. In the present case, admittedly the owner of the vehicle is not an accused in the criminal case and it is also not disputed that the vehicle which is standing at the police station, will loose its value for want of proper care and attention. 8. After hearing the learned Counsel for the petitioner and learned A.G.A. and also going through two orders, I am satisfied that the Courts below did not consider the fact that no fruitful purpose will be served by keeping the vehicle at the police station for an indefinite period. The order refusing its release has been passed merely because the criminal proceedings are pending. Another reason for which the release has been declined, is that the Court has no jurisdiction to order release. It is the State Government alone which can direct for its release. The order refusing its release has been passed merely because the criminal proceedings are pending. Another reason for which the release has been declined, is that the Court has no jurisdiction to order release. It is the State Government alone which can direct for its release. In an eventuality as the instant one, it cannot be said that the owner is remediless, recourse to Article 226 of the Constitution is always available. In view of the decision of the Apex Court and principles followed by this Court, I dispose of this writ petition with the direction to the concerned Magistrate to pass appropriate orders for release of the disputed vehicle in favour of the owner after taking adequate security to his satisfaction and also an undertaking that the vehicle will not be disposed of during pendency of the criminal proceedings. In case the Court feels that the vehicle will be required during the proceedings then a memo of the vehicle with photographs should be prepared and the same shall be kept on record alongwith its negatives. The memo shall be signed by all the concerned parties as well as Investigating Officer thereafter final orders be passed for release of the vehicle, within a period of three weeks from the date a certified copy of this order is produced before him. 9. With the aforesaid observations, this writ petition is finally disposed of. ————