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ARUN ALAIS ARUNPRASAD versus STATE BY

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Arun alais Arunprasad v. State by - CRL.R.C.(MD).No.834 of 2006 [2007] RD-TN 440 (3 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 03/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRL.R.C.(MD).No.834 of 2006

Arun alais Arunprasad ...Petitioner Vs.

State by

The Inspector of Police,

Pasupathipalayam Police Station,

Karur District,

Crime Nio.221 of 2006 ...Respondent Prayer

Criminal Revision Case filed under Sections 397 and 401 of the Criminal Procedure Code, praying to set aside the order passed by the Judicial Magistrate No.I, Karur in C.M.P.No.3161 of 2006 dated 28.09.2006. For Petitioner : Mr.R.Mathiyalagan

For Respondent : Mr.P.Rajendran,

Government Advocate (Crl.side) :ORDER



This Criminal Revision Case has been filed challenging the order of the Judicial Magistrate No.I, Karur dated 28.09.2006, passed in C.M.P.No.3161 of 2006 in respect of Crime No.221 of 2006 declining to allow the prayer for interim custody of the vehicle (Maruthi Zen Car) bearing Registration No.TN-39- J-0025 and remanded in the above said case.

2. The above said criminal case was registered against one named accused and five unnamed accused for alleged offences punishable under Sections 147,148,341, and 302 IPC in respect of an alleged occurrence that took place on 12.06.2006 at about 02.30 p.m. The said case is still under investigation. Alleging that the above said Maruthi Zen Car had been used by the accused persons for going to the place of occurrence and then after committing the offences, for escaping from the scene of occurrence, the police have seized the vehicle and remanded the same.

3. The revision petitioner on the strength of the registration certificate of the said vehicle claiming better right than any other person to have the custody of the vehicle, filed the above mentioned C.M.P.No.3161 of 2006 under Section 451 Cr.P.C. for entrusting the interim custody of the said vehicle with him. The learned Judicial Magistrate with the following observations, dismissed the said petition:

"Heard and records produced. The alleged offence against the accused are u/s.147,148,341,302 IPC. The petition has been filed by the petitioner/Accused seeking interim custody of the Maruthi Zen Car TN 39 J 0025 seized in the case. Reply from APP and police perused. It is learnt that the vehicle was involved in the commission of the offence. Further the case is exclusively triable by the Court of sessions. Hence this application is dismissed."

4. The said order of the Judicial Magistrate No.1, Karur is under challenge in this criminal revision case.

5. Heard the submissions made on both sides.

6. The learned counsel for the petitioner in the revision case contends that though the petitioner might have been filed under Section 451 Cr.P.C., as investigation was not completed as on the date of filing of the petitioner, the petition might have been treated as one under Section 457 Cr.P.C. The learned Government Advocate (Criminal side) representing the State has also admitted the correctness of the above said representation. It is the further case of the petitioner that the reasons assigned by the learned Judicial Magistrate for declining the relief sought for by the petitioner are not sustainable and that the order passed by the learned Judicial Magistrate itself will reveal the non- application of mind to the relevant provisions of the statute as well as the directions given by the Apex Court in this regard. The learned counsel for the petitioner drew the attention of this Court to the observations made and directions issued by the Honourable Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat reported in 2003 SCC (Crl) 1943 and argued that the guidelines provided therein have been flouted by the learned Judicial Magistrate concerned.

7. A perusal of the order passed by the learned Judicial Magistrate No.1, Karur will show that he was of the view that a Magistrate cannot exercise the powers under Sections 451 or 457 Cr.P.C., if the offence alleged is one triable exclusively by the Court of sessions. In the Judgement reported in M.Muniswamy and others vs. State S.P.E./C.B.I./Hydrabad [1993(1) An W.R. 150], it has been held that the Magistrate can order return of the property, even though he is not competent to try the offence.

8. A bare reading of Sections 451 and 457 Cr.P.C., will show both the sections deal with the power of the Magistrate to order interim custody of the properties pending investigation, inquiry or trial. There is nothing in the sections regarding the competence of the criminal Court to try the case. The fact that the Magistrate is empowered to order interim custody of the property seized in the course of investigation or produced during any "enquiry or trial" will make it clear that even in cases exclusively triable by the Court of a session in which Judicial Magistrate does have only a power of inquiry, the Judicial Magistrate is empowered with the power, under Sections 451 and 457 Cr.P.C., of directing interim custody or for the disposal of the properties seized during investigation or produced during the inquiry. The only reason assigned by the Judicial Magistrate for the dismissal of the petition is that the case is exclusively triable by a Court of Sessions. It will make it clear that the learned Judicial Magistrate has failed to exercise the jurisdiction conferred upon him on an erroneous view as to what the law is on this point. Therefore on that score alone, the order of the learned Judicial Magistrate is liable to be set aside.

9. Coming to the merits of the case, the petitioner has produced the xerox copies of R.C. Book, tax receipt and the certificate issued at Prince Emission Checking Centre to prove that he is the owner of the said vehicle and he is entitled to ask for the interim custody of the vehicle.

10. The question of proper custody of the seized article is raised in a number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore the Honourable Supreme Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: (SCC p.361, para 4) "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the 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. As the seizure of the property by the police amounts to a 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. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. 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 High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code 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 and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

11. Referring to the above said Judgment, the Honourable Supreme Court once again made the following observations in Sunderbhai Ambalal Desai v. State of Gujarat reported in 2003 SCC (Crl) 1943 :

"Learned Senior Counsel Mr.Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a 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 their owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the Court at any point of time.

However, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle 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 persons concerned.

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.

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 should be taken and detailed panchnama should be prepared."

12. The above said observations made by the Honourable Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat reported in 2003 SCC (Crl) 1943 are enough to hold that the petitioner shall be entitled to the relief sought for while entrusting the interim custody of the vehicle, adequate safeguards can be made by getting his original R.C. to be kept in the Court, taking photographs of the vehicle, getting sureties and by incorporating conditions not to sell, lease out or alter the colour or other features of the vehicle without permission of the Court, except carrying out necessary repairs.

13. For the aforesaid reasons, this Court passes the following order: "The order passed by the learned Judicial Magistrate No.I, Karur in C.M.P.No.3161 of 2006 is set aside and it is hereby directed that the interim custody of the vehicle on proof of ownership and deposit of R.C. Book before the lower Court shall be entrusted to the petitioner in the Criminal Revision Case, subject to the following conditions:

(i) The interim custody of the vehicle bearing Registration No.TN-39-J- 0025, is ordered to be entrusted to the petitioner till the disposal of the case, on his executing a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the satisfaction of the Judicial Magistrate No.I, Karur;

(ii) The petitioner shall not alter, alienate or encumber, in any manner the said vehicle till the disposal of the case; and (iii) The petitioner shall produce the vehicle, as and when required by the trial Court."

14. Accordingly, this Criminal Revision Case is allowed.

SML

To

1.The Judicial Magistrate No.I,

Karur.

2.The Inspector of Police,

Pasupathipalayam Police Station,

Karur District,

(Crime Nio.221 of 2006)

3.The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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