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2017 DIGILAW 1014 (MP)

Bhajan Singh@Bhajanlal v. State of M. P.

2017-09-21

G.S.AHLUWALIA

body2017
ORDER 1. This application under section482 of CrPC has been filed against the order dated 19.5.2017 passed by the ASJ, Ashoknagar, Circuit Bench in Chanderi, in Sessions Trial No.192/2016 by which the application filed by the applicant under section 451 of CrPC has been rejected. 2. The necessary facts for disposal of the present application in short are that the accused-Parmal Pal is facing trial for offence under section 302 of IPC. The allegations are that a FIR was lodged by the deceased-Sauram Pal on the allegation that accused-Parmal Pal by driving the tractor in rash and negligent manner dashed against his motorcycle, as a result of which he has sustained injuries. On the basis of the Dehatinaslishi lodged by the deceased-Sauram Pal, the police registered a FIR for offence under sections 279 and 337 of IPC. Later on, Sauram Pal died and after completing the investigation, the police added an offence under section 302/34 of IPC and filed charge-sheet against Parmal Pal and the applicant. 3. An application under section 451 of CrPC was filed for release of the tractor and trolley on interim custody. The said application was dismissed by the trial Court on the ground that the allegations are that the applicant alongwith other co-accused persons have committed murder of Sauram Pal by dashing against his motorcycle as well as running over the tractor and trolley over the body of the deceased and subsequently by assaulting him by Lathis. It is further held that as the tractor and trolley is the weapon of offence, therefore, at this stage it would not be proper to release the vehicle and accordingly, the application under section 451 of CrPC was rejected. 4. Challenging the order passed by the trial Court, it is submitted by the counsel for the applicant that even in a case where the vehicle is used for causing injuries to the deceased, then the same can be released on interim custody and merely because the vehicle was used for committing offence, the application under section 451 of CrPC should not be rejected. To buttress his contentions, the counsel for the applicant has relied upon the order passed by the coordinate Bench of this Court in the case of Jaipal Singh v. State of M.P., reported in, [ 2016(1) MPWN 34 ], and submitted that in the said case also the tractor was involved in the crime, as it was used for deliberately dashing against a Maruti car in which the deceased was sitting and because of that the deceased died later on and after considering the law laid down by the Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, reported in [2003 SCC (Cri) 1943], the application was allowed by the coordinate Bench of this Court. 5. Per contra, the counsel for the State submitted that as the vehicle in question was used for dashing against the motorcycle of the deceased and, therefore, it can be said to be a weapon of offence and the same would be required to be proved in the trial and if the vehicle is released, then it may affect the prosecution case adversely. 6. Heard learned counsel for the parties. 6.1 While dealing with the claim of vehicle, the Supreme Court in the case of Sunderbhai Ambalal Desai (supra), has held as under:- “7. In our view, the powers under section 451 CrPC 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.” 6.2 If the facts of the present case are considered, then it would be clear that the allegations are that the tractor and trolley in question was used as a weapon of offence and, therefore, the prosecution will be required to get the tractor and trolley exhibited in the trial also. However, keeping in mind the law laid down by the Supreme Court in the case of Sunderbhai Ambalal Desai (supra), as well as the fact that the tractor and trolley will be lying unattended in an open place, this Court is of the view that in case if the applicant gives an undertaking before the trial Court that he would not dispute the fact that the tractor and trolley, which has been seized by the police was used in the commission of offence, then the tractor and trolley in question can be released subject to the following conditions :- i- The police is directed to take the photographs of the tractor and trolley in presence of the applicant and the said photographs shall be countersigned by the applicant. ii- The applicant must give an undertaking before the trial Court that he would produce the tractor and trolley at the time of recording of evidence and also would not object to the marking of the photographs as articles. iii- the applicant shall not dispute any dent or mark present on the body of the tractor and trolley, which may be indicative of dashing against the motorcycle or running over the body of the injured. iv- The applicant will execute a bond of Rs.5,00,000/- (Rs. Five lacs only) and a surety to the like amount to the satisfaction of the trial Court. v- The applicant will not change the machinaries of the tractor. vi- The applicant will not transfer or dispose of the tractor without permission of the trial Court. vii- When the trial Court orders to make available the tractor, the applicant shall produce the same as and when directed by the trial Court on his own expenses. With the aforesaid directions, this application stands disposed of.