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Allahabad High Court · body

2013 DIGILAW 15 (ALL)

SHYAM BIHARI v. STATE OF U. P.

2013-01-03

ASHOK SRIVASTAVA

body2013
JUDGMENT Hon’ble Ashok Srivastava, J.—The instant writ petition has been filed as the petitioner has felt aggrieved by an order dated 12.4.2012 passed by V Additional Sessions Judge, Mirzapur in criminal revision No. 11 of 2012 and order dated 8.11.2011 passed by the Additional Chief Judicial Magistrate 1st, Mirzapur in S.T. No. 253 of 2011 (arising out of case crime No. 260 of 2011), State v. Ashish Patel and others, P.S. Ahrora, district Mirzapur. 2. Respondent No. 2 of this case is Station Officer of P.S. Ahrora district Mirzapur who is properly re-presented by the learned AGA and so is the case of respondent No. 1, hence no notice has been issued to respondent No. 2 and with consent of the parties present before this Court this petition is finally disposed of after due hearing. 3. In a police encounter which took place at 12.45 p.m. on 17.5.2011 one Ashish Patel was also arrested by the police. Ashish Patel is the son of the petitioner Shyam Bihari. After detention and arrest of all the accused persons named in the FIR certain stolen articles and illicit arms and ammunitions were recovered from their possession. Asish Patel was riding a Hero Honda Passion motor-cycle which too was taken into custody by the arresting officer and it was also brought to the police station. On examination it was found that the said motor-cycle was having a fake registration number. It was also found that the engine and chassis numbers were tampered and were made illegible. 4. When the petitioner came to know that his motor-cycle was detained at the police station he approached the Magistrate of the Court concerned with an application informing the Magistrate that the said motor-cycle was his property and he was its registered owner. The learned Magistrate called for the report of the police station and when he found that the registration number of the motorcycle as mentioned by the petitioner in his application under Section 451 Cr.P.C. was not detained by the police in the relevant case he, in a cursory manner, rejected the application for release of the said vehicle. 5. Feeling aggrieved by such order the petitioner approached the Court of learned Sessions Judge and filed the revision No. 11 of 2012 which was ultimately transferred and decided by the Court of V Additional Sessions Judge, Mirzapur. The revision was dismissed. Hence the present petition. 5. Feeling aggrieved by such order the petitioner approached the Court of learned Sessions Judge and filed the revision No. 11 of 2012 which was ultimately transferred and decided by the Court of V Additional Sessions Judge, Mirzapur. The revision was dismissed. Hence the present petition. It has been submitted from the side of the petitioner that the petitioner is the owner of motor-cycle No. UP 67/A-3980 which he purchased on 19.5.2011 from one Nasim Ahmad and the registration certificate of the said vehicle was amended accordingly and his name was incorporated as the registered owner of the said vehicle. It has been further stated from the side of the petitioner that his son Ashish Patel was picked up by the police of P.S. Ahrora from his residence in the early hours of 16.5.2011 and the police took away with it the motor-cycle in question. It has further been submitted that a telegram was sent to D.G.P., Lucknow in this regard on 16.5.2011 at 2.30 p.m. It has also been submitted that after picking up his son on 16.5.2011 he was roped in in a false case on 17.5.2011 showing the time of the incident as 12.45 p.m. It has further been submitted that in a nefarious manner the registration plate of the said motorcycle has been changed and the engine and chassis numbers of the vehicle tampered and rubbed by the police of P.S. Ahrora in order to harass the son of the petitioner. It has also been submitted that the release application filed by him under Section 451 Cr.P.C. before the learned Magistrate has been disposed of in a reckless and cursory manner. It has further been submitted that the learned revisional Court did not try to appreciate the matter and in an improper way the revision has been dismissed. 6. I have heard learned counsel for the parties and perused the record. On the back of page No. 32 of the paper book the application under Section 451 Cr.P.C. is available. From perusal of this page it is evident that the petitioner Shyam Bihari moved an application before the Court of learned A.C.J.M. 1st Mirzapur with the prayer that his vehicle No. UP 67/A-3980 be given to his custody. The relevant case No. is 1429 of 2011. In this application engine and chassis numbers have also been mentioned. From perusal of this page it is evident that the petitioner Shyam Bihari moved an application before the Court of learned A.C.J.M. 1st Mirzapur with the prayer that his vehicle No. UP 67/A-3980 be given to his custody. The relevant case No. is 1429 of 2011. In this application engine and chassis numbers have also been mentioned. This page also indicates that the learned Magistrate called for the report of the police station. Through an order passed on the back of the said application, on 8.11.2011 the said prayer to release the vehicle was rejected without going deep in the matter and by a cryptic order. From perusal of the judgment of the revisional Court it appears that it has been passed ignoring all the legal norms as contained in Section 451 Cr.P.C. The learned additional Sessions Judge has written a long judgment but it is worthless. 7. In the instant case it is the admitted case of the prosecution that the said motorcycle was recovered from the possession of the son of the petitioner. This Court had summoned the investigating office of the case and he was asked to file a counter-affidavit. In his counter-affidavit dated 22.11.2012 in paras 4 and 5 the investigating officer has mentioned that the said motor-cycle was stolen but there in nothing on record which may indicate the facts on the basis of which such opinion has been formed by the investigating officer It is evident from the record that till 22.11.2012 the said motor-cycle was not connected to any incident of theft. 8. Keeping in view the character of U.P. Police the possibility that the number plate has been changed or the engine and chassis numbers have been rubbed to make it illegible, cannot be ruled out. In such circumstances the duty of a judicial officer is enhanced and it necessitates that the Court should behave in a more responsible manner. In the instant case the way in which the learned Magistrate has acted while disposing of the release application of the petitioner cannot be appreciated. He must not forget that he is not a limb of the police, but is a judicial officer. In the instant case the way in which the learned Magistrate has acted while disposing of the release application of the petitioner cannot be appreciated. He must not forget that he is not a limb of the police, but is a judicial officer. The learned Additional Sessions Judge also did not care to go deep in the matter and appreciate the law as laid down by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujrat, AIR 2003 SC 6318 and Sulekh Chnad v. Suresh Chand, (1991) Crl LJ 469 (SC). 9. In the above set of circumstances this Court has been left with no option but to quash and set aside both the orders impugned herein and remand back the matter to the Court where, at present, the relevant case is pending. It appears from the record that the matter is being tried by a Court of Sessions as I find a noting on the certified copies of the documents filed alongwith the affidavit wherein S.T. No. 253 of 2011 has been mentioned. The learned Sessions Judge. Mirzapur is directed to find out the Court where such case is pending and send this order to that Court for compliance. The case is remanded back. The learned Court concerned is directed to peruse the position of law as contained in Section 451 Cr.P.C. and after giving a detailed and careful hearing to both the parties pass an appropriate and reasoned order in this case. The learned Court concerned is also directed to read carefully the law as laid down in Sunderbhai Ambalal Desai’s case (supra) and follow the same while disposing of the application under Section 451 Cr.P.C. The petitioner herein is at liberty to file a fresh application before the Court concerned under Section 451 Cr.P.C. within a period of 30 days from today. If such an application is moved the same shall be disposed of by the Court concerned within a period of 45 days from the date of its presentation. With the above observations and directions the petition is allowed. ——————