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2020 DIGILAW 66 (HP)

Sukhvinder Singh v. State Of Himachal Pradesh

2020-01-04

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - Instant petition has been preferred by petitioner against dismissal of his Revision Petition vide order dated 13.3.2019 passed by learned Sessions Judge, Kullu, in Cr. Revision No. 11 of 2018, whereby rejection of his application filed under Section 457 Cr.P.C. for release of Gypsy vehicle No.HP-53A-8153 along with its key and documents by learned Chief Judicial Magistrate, Kullu vide order dated 15.11.2018, has been affirmed. 2. On perusal of record and considering the submissions of learned counsel for parties, undisputed facts, which emerged on surface, are that petitioner Sukhvinder Singh has been registered as owner of Gypsy vehicle No.HP53A-8153 in the record of Registering and Licensing Authority, Baijnath and this vehicle has also been insured by him. Further that respondent No.3 has lodged an FIR No. 124 of 2017, under Section 420 IPC, against petitioner alleging therein that he was dealing in sale and purchase of second hand vehicles and petitioner was working with him on commission basis and respondent No.3 had purchased two vehicles bearing Nos. HP-01-K-2768 (Maruti Swift) and PB-08-BZ-5253 (Maruti Gypsy) from Hi Tech Satluj Motor and one Indever Mehta, respectively and Gypsy was purchased for a total consideration of Rs.55,000/- through sale and purchase agreement and thereafter, as the said vehicle, being accidental one, was got repaired through petitioner at Amritsar and for that purpose an advance of Rs.5000/- was also paid by respondent No.3 to petitioner, but thereafter, petitioner, after forging documents, had transferred the ownership of Gypsy in his own name fraudulently in collusion with registered owner namely Shyam Kumar Sharma, taking advantage of the fact that registration certificate was in the name of Shyam Kumar Sharma, whereas the vehicle was purchased by respondent No.3 from Indever Mehta. It is claimed that Shyam Kumar Sharma had sold the vehicle to one Rajvansh Kaur from whom one Devender Kumar resident of Hamirpur had purchased the same and thereafter it was sold by the said Devender Kumar to Indever Mehta, who sold it to respondent No.3. 3. It is also claimed by respondent No.3 that petitioner had also put his signatures as a witness on the sale purchase agreement between Indever Mehta and respondent No.3. 4. During investigation, as per his statement recorded under Section 161 Cr.P.C., Indever Mehta had accepted the selling of vehicle but with further qualification that he had received payment of Rs.55,000/- from petitioner Sukhvinder Singh. 4. During investigation, as per his statement recorded under Section 161 Cr.P.C., Indever Mehta had accepted the selling of vehicle but with further qualification that he had received payment of Rs.55,000/- from petitioner Sukhvinder Singh. Alleged signatures of petitioner Sukhvinder, claimed to have been put by him on agreement as a witness, were also sent for comparison with his admitted signatures to the hand writing expert. As per report of Expert, alleged signatures of Sukhvinder on agreement did not tally with his admitted signatures. Previous registered owner Shyam Kumar Sharma had also produced an affidavit before police and had informed that on asking of Rajvansh Kaur, he had sworn an affidavit in favour of Sukhvinder Singh @ Soni for transferring the registration in his name and on the basis of the said affidavit, petitioner Sukhvinder Singh had transferred the registration of vehicle in his favour against the new number i.e. HP-53A-8153 with Registering and Licensing Authority, Baijnath. 5. It is the case of petitioner that he had purchased the vehicle from real owner Shyam Kumar Sharma, but respondent No.3 Jainder Singh was annoyed with him as he had parted with him from partnership in the business of sale and purchase of old vehicles. 5. It is the case of petitioner that he had purchased the vehicle from real owner Shyam Kumar Sharma, but respondent No.3 Jainder Singh was annoyed with him as he had parted with him from partnership in the business of sale and purchase of old vehicles. According to him, in the partnership, both parties had to invest their money and to share the profit on 50-50 basis and during partnership, they had purchased 12-13 vehicles and profit thereof was also distributed on 50-50 basis, however, four vehicles were yet to be sold and respondent No.3, who is a goldsmith running his showroom in Akhra Bazar, Kullu, was not sparing time in partnership business being busy in his showroom, whereas, according to partnership, both parties had to work equally, but respondent No.3 was not doing anything, whereas petitioner was performing all the business activities of partnership, but profit was being distributed on 50-50 basis despite the fact that petitioner had to work more, whereupon, he had parted with partnership and remaining vehicles i.e. Ford Icon, Ford Figo, Servlet Beat and Bajaj Ape Four wheeler were kept by respondent No.3 with him and later on, he had sold them and in lieu thereof, two vehicles which were purchased by petitioner in his name were kept by petitioner, but respondent No.3 has lodged false complaint against him regarding those vehicles for settling his score as his business of sale and purchase of old vehicles had shut down. 6. Thereafter, petitioner had also submitted an application to the Superintendent of Police for cancellation of FIR lodged against him by giving his version about details of entire episode. 7. It has also come on record that petitioner had also filed a civil suit in Civil Court at Amritsar for declaration of ownership of vehicle in his favour, which was dismissed in default and thereafter an application for revival whereof had also been filed. 8. Be that as it may, the issue in present petition is that whether vehicle No. HP-53A-8153 (earlier PB-08BZ5253) is to be released or not and if so, in whose favour it is to be released. 9. To substantiate the claim for release of vehicle in his favour, petitioner has relied upon Sunderbhai Amabalal Desai vs. Sate of Gujarat, (2002) 10 SCC 283 and General Insurance Council and others vs. State of Andhra Pradesh and others, (2010) 6 SCC 768 . 10. 9. To substantiate the claim for release of vehicle in his favour, petitioner has relied upon Sunderbhai Amabalal Desai vs. Sate of Gujarat, (2002) 10 SCC 283 and General Insurance Council and others vs. State of Andhra Pradesh and others, (2010) 6 SCC 768 . 10. In case Smt.Basavva Kom Dyamangouda Patil vs. State of Mysore and another, (1977) 4 SCC 358 m dealing with the case related to certain articles belonging to complainant, the subject matter of a theft, recovered by police during investigation, produced before the Court and retained by the Sub Inspector under the directions of the Court, but found stolen and lost on conclusion of trial from the custody of police. The Apex Court has observed that the object and scheme of various provisions of Cr.P.C. appear to be that where the property, which has been the subject matter of an offence, is seized by 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 and as the seizure of the property by police amounts to 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 and it is further held that it is manifest that there may be two stages when the property may be returned to the owner, during any inquiry or trial and this may particularly be necessary where the property concerned is subject to speedy or natural decay and 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 Apex Court has observed that in a criminal case, the police is always under direct control of the Court and has to take orders from it at every stage of any inquiry or trial, and in this broad sense, therefore, the Court exercise an overall control on the actions of the police officers in every case where it has taken cognizance. It is also observed that object of the Cr.P.C. 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 by passing a just and proper order regarding its disposal. 11. It is also observed that object of the Cr.P.C. 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 by passing a just and proper order regarding its disposal. 11. In Sunderbhai Amabalal Desai's case the Apex Court,dealing with the case of custody and disposal of property pending trial in certain cases and procedure by police upon seizure of property as contained in Sections 451 and 457 of Cr.P.C., after referring Basavva Kom Dyamangouda Patil vs. State of Mysore, (1977) 4 SCC 358 , has observed that powers under Section 451 Cr.P.C. should be exercised expeditiously and judicially for serving various purposes, which reads as under:- "5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. 7. In our view, the powers under Section 451 Cr.P.C. 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 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 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." 12. The Apex Court while dealing with seized vehicles from time to time by police either in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of theft, the Court in above referred Sunderbhai Amabalal Desai's case has further observed as under:- "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. 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. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle would be taken and detailed panchnama should be prepared." 13. The Apex Court in General Insurance Council and others vs. State of Andhra Pradesh and others, (2010) 6 SCC 768 has reiterated aforesaid observations made in Sunderbhai Amabalal Desai's case and has passed further direction as under:- "(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release. (B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer." 14. In present case, petitioner is claiming his right on the basis of registration and insurance of vehicle in his name and during investigation in FIR lodged by respondent No.3 also, it has come on record that Indever Mehta had accepted that payment of vehicle was given to him by petitioner Sukhvinder Singh and further the vehicle was registered in the name of petitioner on the basis of affidavit sworn in by original registered owner Shyam Kumar Sharma, whereas, respondent No.3 is claiming his right on vehicle on the basis of agreement dated 26.9.2016, between Indever Mehta and respondent No.3 with claim that said agreement was also witnessed by petitioner Sukhvinder Singh. According to this agreement, on 26.9.2016, only Rs.40,000/- were paid to Indever Mehta and Rs.15,000/- was to be paid after receiving NOC, whereas during investigation, Indever Mehta has admitted the receipt of Rs.55,000/- from petitioner Sukhvinder Singh. Further signatures of Sukhvinder Singh on agreement do not tally with his admitted signatures. 15. Vehicle is in custody of police since 14.7.2018 in case FIR No. 124 of 2017 wherein after completing the investigation, police has already submitted the cancellation report in the court of learned Chief Judicial Magistrate on 19.4.2019 and it is informed that said cancellation report is pending before the said Court and is listed on 24.2.2020 for filing of objections on behalf of complainant/respondent No.3, if any. 16. Considering the pronouncements of Apex Court referred supra with mandate of Sections 451 and 457 of Cr.P.C. to avoid further decay in condition of the vehicle, it is not to be kept idle in Police Station, but requires to be released. 17. Petitioner as well as respondent No.3 are claiming their right on vehicle against each other. Vehicle is a property, value whereof can be assessed. 17. Petitioner as well as respondent No.3 are claiming their right on vehicle against each other. Vehicle is a property, value whereof can be assessed. Petitioner as well as respondent No.3 are claiming that vehicle was purchased for Rs.55,000/-. It is also settled that there is decay in value of vehicle with passage of time. However, to avoid any further dispute at this stage, value of vehicle can be taken as Rs.55,000/- for the purpose of claim set up by respective parties. 18. It is pertinent that respondent No.3 has also filed an application for release of vehicle before learned Chief Judicial Magistrate, but his application was also dismissed, whereupon he had also preferred Cr.Revision No. 5 of 2019 titled Jai Inder Singh vs. State of HP, which was also dismissed by learned Sessions Judge vide common judgment dated 13.3.2019, impugned herein, passed in revision petitions. 19. Learned Chief Judicial Magistrate had rejected the application of petitioner on the ground that for pending investigation, it could not be concluded as to who, prima facie, is owner of vehicle and to whom the interim custody of vehicle can be given and revision petition preferred by petitioner as well as respondent No.3 was also dismissed for the same reason. However, after passing of impugned judgment in March, 2019, police has submitted its report for cancellation of FIR in the Court of learned Chief Judicial Magistrate on 19.4.2019. Thereafter, present petition has been preferred in May 2019, whereas there is nothing on record to suggest that respondent No.3 Jai Inder Singh had further assailed the order passed by learned Sessions Judge affirming the rejection of his application for release. 20. In view of above discussion, without commenting on merits, with respect to respective claim of parties, but considering the entire facts and circumstances of the case, coupled with directions of Apex Court and also considering the mandate of Section 451 read with Section 457 Cr.P.C. vehicle is ordered to be released in favour of registered owner i.e. petitioner, at this stage, with following conditions:- (i) Parties are directed to appear before learned Chief Judicial Magistrate, Kullu on 21.01.2020. (ii) That release of vehicle shall be ordered by learned Chief Judicial Magistrate in favour of petitioner Sukhvinder Singh on filing an application by him along with copy of this order subject to his furnishing personal bond of Rs.55,000/- with one surety in the like amount to the satisfaction of learned Magistrate undertaking therein to indemnify rightful owner, in the event it is determined by the competent Court of law finally that rightful ownership with respect to vehicle in question, does not vest with petitioner but rightful owner of vehicle is respondent No.3 or someone else. (iii) Before release of vehicle necessary photographs of vehicle be taken at State expenses and be duly authenticated and certified by Investigating Officer/SHO/Incharge of Police Station/Police Post and a detailed Panchnama/memo also be prepared in presence of two Panch witnesses. The same shall be signed by petitioner, respondent No.3, witnesses and shall be attested by Investigating Officer/SHO/Incharge of Police State/Police Post. (iv) The photographs so taken may be used as secondary evidence during trial, if any, for which police through Government Advocate/Public Prosecutor shall take necessary steps in accordance with law and physical production of vehicle may be dispensed with. (v) In case any party claiming right on the vehicle, fails to appear on the date and at the time of completion of formalities for release without any plausible reason or if it appears to the Court that there is delay tactic on the part of a party, the process of release may be completed/closed in absence of such party. (vi) The Magistrate may also impose/prescribe any other reasonable necessary condition/formalities for release of vehicle in consonance with pronouncements of the Apex Court and mandate of Sections 451 and 457 Cr.P.C. in given facts and circumstances. Petition stands allowed in the aforesaid terms. All pending miscellaneous application(s), if any, also stands disposed of.