Gujarat High Court
Jayeshkumar Hiralal Thakkar vs State Of Gujarat & on 26 February, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/1585/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1585 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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JAYESHKUMAR HIRALAL THAKKAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MITESH R AMIN, ADVOCATE for the Applicant(s) No. 1
MR DEVANG J JOSHI, ADVOCATE for the Respondent(s) No. 2
MS HB PUNANI ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 26/02/2015
ORAL JUDGMENT
This petition is filed under Article 227 of the Constitution of India Page 1 of 7 R/SCR.A/1585/2013 JUDGMENT wherein the petitioner has prayed that the order dated 13.3.2013 passed by the learned Additional Sessions Judge, Vadodara below Criminal Revision Application No. 38 of 2013 be quashed and set aside. The petitioner has also prayed that the order dated 25.2.2013 passed by learned Judicial Magistrate First Class, Vadodara below Muddamal Application No. 556 of 2013 be quashed and set aside and thereby learned Magistrate be directed to handover the interim custody of the Muddamal vehicle to the petitioner.
2. Learned advocate Mr. Brijesh Limbachiya appearing for learned advocate Mr. Mitesh R. Amin for the petitioner has submitted that the First Information Report bearing C.R. No.I-3 of 2013 came to be registered with Vadodara City Police Station for the offences punishable under Sections 143, 147, 148, 149, 307 and 120B of the Indian Penal Code against one Aslam. After the registration of the said F.I.R. the investigating officer carried out investigation, and during the course of the investigation the investigating officer seized the muddamal vehicle, i.e. Scorpio car bearing registration No. GJ-6-EQ-7199. The petitioner therefore submitted an application under Section 451 of the Code of Criminal Procedure 1973 for taking interim custody of the said vehicle. The said application was registered as Muddamal Application No. 556 of 2013. Learned advocate submitted that the learned Magistrate rejected the said application, and therefore the petitioner preferred Criminal Revision Application No. 38 of 2013 before the learned District and Sessions Judge, Vadodara. However, the said Revision Application is also dismissed by the learned Sessions Court by the impugned order dated 13.3.2013. The petitioner has therefore preferred this petition under Article 227 of the Constitution of India for quashing and setting aside the orders, and with a prayer to direct the learned Magistrate to release the muddamal vehicle and give interim custody to the petitioner. Learned advocate submitted that both the impugned orders are bad, Page 2 of 7 R/SCR.A/1585/2013 JUDGMENT illegal and perverse, and therefore the same may be quashed and set aside in the interest of justice. Learned advocate submitted that the petitioner has purchased the muddamal vehicle by a sale deed dated 3.11.2012 from one Chandresh Sureshbhai Oza. After execution of the said sale deed between the parties, the procedure for transfer of the said vehicle in the name of the petitioner was pending before the concerned R.T.O. authorities and in the mean time the said vehicle was seized by the investigating officer in connection with the aforesaid F.I.R. Thus, the petitioner is the lawful owner and he was in lawful possession of the muddamal vehicle, and therefore the learned Magistrate ought to have given the custody of the muddamal vehicle to the petitioner. Learned advocate has further submitted that the muddamal vehicle was also insured with IFFCO Tokio General Insurance Company Limited in the name of said Chandresh Sureshbhai Oza, who was the former owner of the vehicle. The insurance policy of the said vehicle is also produced along with the copy of the petition at Annexure D. Learned advocate further submitted that the petitioner is not at all connected with the incident in question, i.e. the First Information Report being C.R. No.I-3 of 2012 registered with the Vadodara City Police Station. Learned advocate for the petitioner has referred to the averments made in the petition and the documents annexed with the petition, and submitted that the muddamal vehicle was seized from the son of the petitioner namely Bhavik from their residence. The registered owner of the said vehicle namely Chandresh Sureshbhai Oza has never objected to the application given by the petitioner under Section 451 of the Code. On the contrary the said Chandresh Sureshbhai Oza has filed an affidavit in favour of the petitioner stating that if custody of the muddamal vehicle is given to the petitioner he has no objection. Learned advocate further submitted that petitioner has regularly paid installments of the loan of the said vehicle upto April 2013, and thereafter also he is regularly making payment of the installments of the said loan to the finance company. Learned Page 3 of 7 R/SCR.A/1585/2013 JUDGMENT advocate further submitted that the muddamal vehicle is lying in the custody of the concerned police station since 15.2.2013. Thus, the said vehicle is lying in the police station without any use, and therefore the condition of the said vehicle is deteriorating. No useful purpose would be served in keeping the said vehicle in the police station. Learned advocate further submitted that the petitioner is ready and willing to abide by the conditions which may be imposed by this Court while releasing the muddamal vehicle. Learned advocate for the petitioner further relied upon the decision rendered by the Honourable Supreme Court in the case of Sundarbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283.
3. On the other hand learned A.P.P. Ms. Punani submitted that the courts below have not committed any error of law while rejecting the application preferred by the petitioner under Section 451 of the Code. Learned A.P.P. submitted that the petitioner is not a registered owner of the muddamal vehicle. Said vehicle is registered in the name of one Chandresh Sureshbhai Oza, and therefore the learned courts below have rightly rejected the request of the petitioner. Learned A.P.P. referred to the impugned orders, and submitted that the copy of the insurance policy was not produced before the learned Magistrate as well as the Sessions Court. Learned A.P.P. further submitted that the muddamal vehicle is also involved in another First Information Report being C.R.I-9 of 2013, and therefore this Court may not entertain this petition.
4. Learned advocate Mr. Devang J. Joshi for respondent No.2- Finance Company has mainly submitted that the petitioner is regularly making payment of installments of the loan on the aforesaid muddamal vehicle. However, if the installments are not paid in future, liberty be reserved to respondent No.2 to file appropriate application before appropriate court.
Page 4 of 7R/SCR.A/1585/2013 JUDGMENT
5. I have considered the arguments canvassed on behalf of learned advocates for the parties. I have also gone through the documents produced on record. From the record, following facts are revealed:
(a) The muddamal vehicle has been seized by the investigating officer in connection with the F.I.R. C.R.I-3 of 2013 registered with Vadodara City Police Station.
(b) The petitioner is not shown as accused in the said F.I.R. nor he is in anyway connected with the said offence.
(c) The accused Aslam has used the vehicle for commission of the alleged offence.
(d) The Muddamal vehicle was produced with the consent of the petitioner namely Bhavik before the concerned investigating officer.
(e) Though the petitioner is not the owner of the muddamal vehicle, from the documentary evidence produced on record, namely, copy of the sale deed executed between Chandresh Sureshbhai Oza and the petitioner, the transfer form produced before the concerned R.T.O., insurance policy of the said vehicle,the affidavit filed by Chandresh Sureshbhai Oza and a copy of the R.C. Book, it is clear that though the said vehicle is in the name of Chandresh Sureshbhai Oza, he has sold the muddamal vehicle to the petitioner. The process of transfer was pending before the concerned R.T.O. authorities. Before the said vehicle was transferred in the name of the petitioner, it was seized and therefore though the petitioner is not a registered owner of the muddamal vehicle, it can be said that the petitioner is a lawful owner of the muddamal vehicle and was in legal possession of the said vehicle.
When the registered owner Shri Chandresh Sureshbhai Oza has filed an affidavit to the effect that if the custody of the muddamal Page 5 of 7 R/SCR.A/1585/2013 JUDGMENT vehicle is given to the petitioner he has no objection, and in view of the other documentary evidence produced on record, I am of the opinion that the learned courts below have committed a grave error by not handing over the custody of the muddamal vehicle to the petitioner.
6. Learned advocate for the petitioner is right in making the submission that the muddamal vehicle is lying in the concerned police station since February 2013 and its condition is deteriorating, and therefore no purpose would be served in keeping the said vehicle in the custody of the said police station till the conclusion of the trial. At this stage the direction given by the Honourable Supreme Court in the case of Sundarbhai Ambalal Desai (supra) is required to be kept in mind. The Honourable Supreme Court in paragraph No. 17 of the said decision 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. 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"
7. Even this Court in similar type of case passed an order on 4.2.2015 in Special Criminal Application No. 2931 of 2014 whereby the custody of the muddamal vehicle was given to the concerned petitioner.
8. In view of the aforesaid discussion, this petition is allowed. The impugned order dated 13.3.2013 passed by the learned Additional Sessions Judge, Vadodara below Criminal Revision Application No. 38 of 2013 and the order dated 25.2.2013 passed by learned Judicial Page 6 of 7 R/SCR.A/1585/2013 JUDGMENT Magistrate First Class, Vadodara below Muddamal Application No. 556 of 2013 are quashed and set aside. Learned Judicial Magistrate First Class, Vadodara is hereby directed to handover the custody of the muddamal vehicle, i.e. Scorpio car bearing registration No. GJ-6-EQ- 7199 to the petitioner on the following terms and conditions:
(1) The petitioner shall furnish a bond of Rs.4.00 lacs before the learned Magistrate.
(2) Before releasing the muddamal vehicle, necessary photographs of the said vehicle be taken duly authenticated and certified and a detailed panchnama shall be prepared before the such release. (3) The said muddamal vehicle shall be produced by the petitioner as and when directed by the learned Magistrate.
(4) The petitioner shall not sell, transfer or alienate the muddamal vehicle in any manner till the final conclusion of the trial pending in the court of learned Judicial Magistrate First Class, Vadodara. (5) The petitioner shall not use the said vehicle in any unlawful or illegal activities.
Rule is made absolute accordingly.
(VIPUL M. PANCHOLI, J.) sndevu Page 7 of 7