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2010 DIGILAW 912 (JHR)

Amushree @ Kumari Amushri v. State of Jharkhand

2010-09-20

JAYA ROY

body2010
ORDER Jaya Roy, J. 1. Heard the learned Counsel for the Petitioner and the learned Counsel for the State. 2. The Petitioner has filed the instant revision application against the order dated 4.9.2010, whereby the CJM. Hazaribagh has rejected the Petitioner's prayer for release of the vehicle bearing registration No. JH-OIY-3132. 3. The learned Counsel of the Petitioner submitted that, the Court below has rejected her prayer on the ground that the driver of the vehicle has not yet surrendered. It is further contended that she is the owner of the said vehicle and as the said vehicle is lying in an open field, is everyday under the process of coming in contact with the dust and rains. 4. The learned Counsel for the Petitioner has also cited a decision of the Hon'ble Apex Court reported in (2002) 10 SCC 283 in the case of Sunderbhai Ambalal Desai v. State of Gujrat, in which, the Hon'ble Apex Court has held: 7. In our view, the powers under Section 451, Code of Criminal Procedure 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 panchanama before handing over possession of the 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 details; 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. 8. The question of proper custody of the seized article is raised in a number of matters. In Basavva kom Dyamangouda Patil v. State of Mysore, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under. (SS Cp. 361, para 4). 4. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under. (SS Cp. 361, para 4). 4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence Is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. 9. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. 9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. 10. To avoid such a situation, in our view, powers under Section 451, Code of Criminal Procedure should be exercised promptly and at the earliest. 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. 5. The learned Counsel for the State submits that the Petitioner, who is claiming herself as owner of the vehicle, has not disclosed the name and address of the driver nor she does not want to produce the driver of the said vehicle. Therefore, the trial Court has rightly rejected her prayer. 6. Considering the submissions made by both the parties and also considering the facts and circumstances of the case as well as in view of the aforesaid decision of the Hon'ble Apex Court, the trial Court is directed to release the vehicle immediately after verifying the owner book and other necessary documents and after taking appropriate bond and guarantee as well as security which the trial Court will consider just and proper for release of the said vehicle. It is further directed that before release of the vehicle, the Petitioner will file an undertaking on affidavit before the trial Court that she will produce the vehicle in question before the trial Court, whenever, the trial Court will ask her to produce the same and the Petitioner will not sell/transfer or dispose of the vehicle in question before conclusion of the trial. 7. Accordingly, the impugned order is set aside and with the aforesaid directions, this revision application is disposed of. 8. learned Counsel for the Petitioner will deposit the cost of the FAX to communicate this order to the Court concerned. Revision disposed of.