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2022 DIGILAW 425 (ALL)

Nishu Chauhan v. State of U. P.

2022-03-24

GAUTAM CHOWDHARY

body2022
JUDGMENT : 1. Heard Sri Abhishek Gupta, learned counsel for the applicant, Sri Rakesh Chandra Srivastava, Shri Pankaj Srivastava, learned A.G.A. assisted by Sri Madnesh Prasad and Sri Rajnish Pandey, learned State Law Officers and perused the material on record. 2. Brief facts giving rise to the instant application are that the first informant-applicant namely, Nishu Chauhan had lodged a first information report against the driver of the vehicle of U.P. 16AQ6334 with the averments that on 23.09.2020 at about 03:00 P.M., he along with his relatives on his Scorpio Car bearing registration no. DL 11CB 1383 from North-Western Delhi were going to Sector 134 NOIDA on the way, at village Nagli Sector No. 134 Noida, one white Innova car bearing registration No. UP 16AQ 6334 was coming towards Jaypee Greens Wish Town, which was colluded with the first informant's vehicle, due to which the informant's vehicle was overturned and damaged and the driver of the said vehicle ran away. Due to said accident, the first informant's wife, his mother, sister sustained injuries. Upon aforesaid averments, in Case Crime No. 0372 of 2020 under Sections 279, 337, 338, 427 I.P.C. at Police Station Expressway, District Gautambudh Nagar. Thereafter the matter was entrusted for investigation, which culminated into submission of charge sheet against one Vipin Kumar. During the pendency of the trial, the vehicle of the applicant was released in his favour vide order dated 02.11.2020 passed by learned Chief Judicial Magistrate, Gautambudh Nagar subject to condition that during the pendency of the trial, the applicant shall not sell the said vehicle along with other conditions. Thereafter, the applicant moved an application dated 26.10.2021 with a prayer to permit him to sell his car, which application has been rejected vide order dated 23.11.2021. It is this order, which is impugned in the instant application. 3. Learned Counsel for the applicant submits that the applicant is the first informant of the case and his vehicle was colluded with the vehicle bearing registration no. UP 16AQ 6334, due to which the vehicle of the applicant severely damaged and during the pendency of the trial, the applicant moved an application for permitting him to sell his own Scorpoio car bearing registration no. UP 16AQ 6334, due to which the vehicle of the applicant severely damaged and during the pendency of the trial, the applicant moved an application for permitting him to sell his own Scorpoio car bearing registration no. DL 11CB 1383 on the ground that his car is not working properly and in such circumstances, the said vehicle may be permitted to be disposed of by the applicant but the application has been illegally rejected by the learned Court below on the ground that there was a condition in the release order that the applicant shall not sell his car without permission of the Court. He further submits after the accident the vehicle of the applicant is not running properly and if it sold now he would get a handsome market value, failing which it result into standing of the vehicle and the value of the vehicle would be depreciated. He also argued that the applicant is complying with condition that he will not sell his car after taking permission from the Court and thus the applicant has moved an application seeking permission to sell his vehicle but the same has been illegally rejected by this Court. to Apart from the depreciation of the vehicle, if the vehicle be kept/standing for long time it result in the vehicle becoming junk and natural decay. It is thus contended that the impugned order is illegal, arbitrary and is liable to be quashed by this Court. 4. On the other hand, learned A.G.A. submits that vehicle in question was released in favour of the applicant imposing specific condition that the applicant would not sell/dispose of the vehicle during the pendency of the trial and if the applicant is permitted to sell his vehicle, then there will violation of one of the condition imposed in the release order and therefore, the impugned order is perfectly legal, just and proper, which calls for interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction. 5. The question before this Court as to whether the vehicle in question, which is a case property, can be sold or not. It is thus necessary to perused Section 451 Cr.P.C., which reads as under:- 451. Order for custody and disposal of property pending trial in certain cases. 5. The question before this Court as to whether the vehicle in question, which is a case property, can be sold or not. It is thus necessary to perused Section 451 Cr.P.C., which reads as under:- 451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.-For the purposes of this section," property" includes- (a) property of any kind or document which is produced before the Court or which is in its custody, (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 6. In the matter of Manjit Singh Vs. State reported in 2014 Legal Eagle (Del) 1258, Delhi High Court has permitted the petitioner to sell the vehicle after taking photograph of the same. In the matter of Sunderbhai Ambalal Desai Vs. State of Gujarat 2002 (10) SCC 283, and General Insurance Council Vs. State of A.P. 2010 (6) SCC 768 Hon'ble Apex Court has held that the production of the vehicle is not necessary during trial and the photographs of the vehicle would be sufficient to be proved in evidence. In the instant case, the vehicle Scorpio Car bearing registration no. DL 11CB 1383, which is the informant's automobile consisting of mechanical and rubber parts which by their nature subject to the natural decay as well as depreciation day by day. Further more, in case, the vehicle is sold at the present time, the petitioner would get a good market value. Section 451 Cr.P.C. also confers discretionary powers on the Court to grant permission to sell. Return of vehicle/sale of vehicle pending disposal of the criminal case is permissible under Section 451 Cr.P.C. After hearing the counsel for the applicant and learned A.G.A. I find that the grievance made out by the applicant is genuine. Section 451 Cr.P.C. also confers discretionary powers on the Court to grant permission to sell. Return of vehicle/sale of vehicle pending disposal of the criminal case is permissible under Section 451 Cr.P.C. After hearing the counsel for the applicant and learned A.G.A. I find that the grievance made out by the applicant is genuine. Of course in the usual course, conditional orders are passed while delivering the property to the interim custody and in the present case, such condition has been imposed by the learned Magistrate while releasing the vehicle of the informant/applicant, however the learned court below did not consider the fact that by the efflux of time, the market value of the vehicle is depreciating inspite of the fact that Section 451 Cr.P.C. confers discretionary powers on the Court to grant permission to sell. Return of vehicle/sale of vehicle pending disposal of the criminal case is permissible under Section 451 Cr.P.C. In view of above, the impugned order dated 23.11.2021 is quashed and the matter is remitted to the concerned Court below to consider and decide the application dated 26.10.2021 afresh, as expeditiously as possible, in accordance with law. With the aforesaid directions, the instant application disposed off.