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2020 DIGILAW 731 (GUJ)

Dhanjibhai Bhimaji Bavri v. State of Gujarat

2020-09-01

ASHOKKUMAR C.JOSHI

body2020
JUDGMENT : 1. Heard learend advocate Mr. Sadik A. Ansari for the applicant and learned APP Mr. H.K. Patel for the respondent-State through video conference. 2. The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Section 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973. 3. This petition is preferred seeking release of the Access Two wheeler bearing registration No. GJ 18-CK-4414 which is seized in connection with CR No. I -147/2018 registered with Sector 21 Police Station, District-Gandhinagar. 4. The case of the prosecution is that the original first informant alleged that the accused persons named in column number 7 in the FIR as also in the charge-sheet, who is the son of the petitioner, has taken the first informant on his Access Two wheeler to the hotel Maheman Guest house situated at Sector 16 Gandhinagar. It is further alleged that after taking the victim in the room groped her and committed rape. Therefore, the complaint was lodged against the accused person who is the son of the present petitioner. 4.1 Pursuant to the registration of an offence against the accused persons named in the FIR the present petitioner being a registered owner of the vehicle involved in the commission of offence preferred an application under section 451 of the Criminal Procedure Code, seeking release of the said vehicle, which came to be rejected by the Ld. Special POCSO and Addl. Sessions Judge Gandhinagar, on the ground that the vehicle was used in commission of a serious crime. Hence, this petition is filed. 5. Learned Advocate for the petitioner has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution. It can also take into account the ratio laid down in the case of ‘SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT’, AIR 2003 SC 638 , wherein, the Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises. 6. Per contra, learned APP has opposed the release of muddamal vehicle so involved in the offence and submitted that appropriate orders may be passed. 7. STATE OF GUJARAT’, AIR 2003 SC 638 , wherein, the Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises. 6. Per contra, learned APP has opposed the release of muddamal vehicle so involved in the offence and submitted that appropriate orders may be passed. 7. On thus hearing both the sides, without determining the other issues raised by the petitioner, as earlier this vehicle is not used in any such other and identical offence and reserving it to be determined in future, in an appropriate proceedings being a contentious issue, this Court choses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution. Moreover, lying of the vehicle with the police station is of no use to anybody but in fact is a national waste and ultimately it is a loss to public exchequer and loss to the government if the vehicle is not released. 8. This Court (Coram: J.B. Pardiwala, J.) however in the case of in ‘ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT’ (Supra) in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018 and (Coram: R. P. Dholaria, J.) in the case of in ‘PRAVINBHAI CHHAGANBHAI PARMAR VS. STATE OF GUJARAT’ (Supra) in Special Criminal Application No. 7761 of 2018, Dated: 07.09.2018 has also released the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage. 8.1 This Court has also referred the order passed by the co-ordinate Bench (Coram: Sonia Gokhani, J) passed in Special Criminal Application No. 200/2019 dated 18.01.2019 wherein the Court has released the vehicle Auto rickshaw. Further this Court has also referred to the order passed by this Court (Coram: J. B Paradiwala, J) dated 10.04.2018 in Special Criminal Application No. 2469/2018 wherein the order passed by the revisional Court is quashed and set aside and the muddamal vehicle Xylo car involved in the offence is released. 8.2 It would be worthwhile to refer profitably at this stage to the observations made by the Hon’ble Apex Court in ‘SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT’ (Supra), which read as under : “15. Learned senior counsel Mr. 8.2 It would be worthwhile to refer profitably at this stage to the observations made by the Hon’ble Apex Court in ‘SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT’ (Supra), which read as under : “15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 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.” 8.3 The Hon’ble Apex Court has, thus, directed that within a period of six months from the date of production of the vehicle before the Court concerned, needful be done. It even went to the extent of directing that where the vehicle is not claimed by the accused, owner, or the insurance company or by 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 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 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. If 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. It also directed that before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and a detailed panchnama should also be prepared. The Hon’ble Apex Court also held and specifically directed that concerned Magistrate would take immediate action for seeing that powers under Section 451 of the Code are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. It, therefore, directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly. 9. Resultantly, this application is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, being Access Two wheeler bearing registration No. GJ 18-CK-4414 on the terms and conditions that the petitioner: (i) shall furnish a solvent surety of the amount equivalent to the value of vehicle in question before the trial Court as per the value disclosed in the seizure memo or pachnama. (ii) shall file an undertaking before the trial Court that prior to alienation or transfer, alienate, part with the possession of the vehicle or create any charge over the vehicle or manner, prior permission of the concerned Court shall be taken till conclusion of the trial; (iii) shall also file an undertaking to produce the vehicle as and when directed by the trial Court; (iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED. 9.1 Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not already drawn, shall also be drawn for the purpose of trial. 9.2 If, the IO finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner. Rule is made absolute, accordingly. Direct service is permitted through fax/ e-mail.