Madras High Court
Kala vs State Rep By on 24 February, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/02/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.(MD)No.77 of 2012 Kala ... Petitioner/Petitioner Vs. State rep by The Inspector of Police, Eraniel Police Station, Kanyakumari District. ... Respondent/Respondent Criminal Revision Case is filed under Section 397 r/w 401 Cr.P.C praying to call for the records and to set aside the order dated 05.09.2011 made in C.M.P.No.4262 of 2011 on the file of the Judicial Magistrate, Eraniel. !For Petitioner ... Mr.C.Mayil Vahana Rajendran ^For Respondent ... Mrs.S.Prabha Government Advocate (Criminal side) :ORDER
Mrs.S.Prabha, learned Government Advocate (Criminal side) takes notice on behalf of the respondent.
2.This criminal revision case has been filed against the order passed by the learned Judicial Magistrate, Eraniel on 5.09.2011 in Cr.M.P.No.4262 of 2011 filed under section 451 Cr.P.C praying for the grant of interim custody of the vehicle namely, Bullet Motor Cycle bearing registration No.TAT 155, which had been seized by the police and produced as a case property in crime No.145 of 2011 on the file of Eraniel Police station. The said case was registered for alleged offences under sections 279, 147, 148, 294(b) and 302 IPC.
3.According to the prosecution case, while Nagarajan, the husband of the petitioner, was proceeding in the said motor cycle belonging to the petitioner, he was hit by a van and after he fell down, the occupants of the van attacked him with Aruval and knife causing fatal injuries, which resulted in his death on the way to the hospital. The vehicle namely, the Bullet Motor cycle bearing registration No.TAT 155, admittedly belongs to the petitioner and stands registered in the name of the petitioner. It is also not in dispute that the petitioner is the owner of the motor cycle as per the registration certificate. When such is the case, the petitioner wants interim custody of the vehicle to be given to her pending disposal of the case so as to prevent disuse of the vehicle and to have the benefit of using her vehicle.
4.The learned Judicial Magistrate seems to have rejected the prayer on the premise that the vehicle might have to be referred to the forensic laboratory for scientific examination. The occurrence is said to have taken place on 18.04.2011.
5.The learned counsel for the petitioner submits that investigation was completed and a final report was submitted, but the same is yet to be taken on file. The learned Government Advocate (Criminal side) appearing on the side of the respondent is not able to dispute the correctness of the said submission.
6.Even otherwise, clear guidelines have been issued by the Honourable Supreme Court in its directions issued by the Apex Court in Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2003(1) CTC 175. A specific paragraph has been devoted for the disposal of motor vehicles and following directions have been issued by the Honourable Supreme Court:
"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 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 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.
18.In case 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. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchanama should be prepared.
19 & 20:.........(omitted)
21.However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under section 451, Cr.P.C. 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. 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."
7.Their Lordships of the Honourable Supreme Court have also given the reasons for issuing such directions in the following words:
"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 articles in safe custody;
3.If the proper panchanama before handing over possession of 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 change of tampering with the articles."
8.In spite of the fact that the learned Magistrates concerned have been directed to pass time bound orders for the disposal of the motor vehicles, either in ignorance of the same or in utter disregard for the same, the learned Judicial Magistrate seems to have rejected the prayer of the petitioner on a flimsy ground that a necessity might arise for sending the vehicle to the forensic laboratory, nearly after a lapse of 10 months. Admittedly, till date no requisition has been made by the investigating agency or any other person interested in the case to have the vehicle inspected by a forensic expert. Under such circumstances, if the vehicle is allowed to lie idle, exposed to sun light and rain, it will get deteriorated in its value and utility. The petitioner, apart from having lost her life partner, should not be asked to bear such a loss also for no fault on her part. For all the reasons stated above, the order of the learned Judicial Magistrate cannot withstand the scrutiny of this court and the same deserves to be set aside.
9.In the result, the Criminal Revision Case is allowed and the order of the learned Judicial Magistrate Eraniel made in Cr.M.P.No.4262 of 2011, dated 05.09.2011 is set aside. Cr.M.P.No.4262 of 2011 filed before the learned Judicial Magistrate, Eraniel, Kanyakumari District shall stand allowed and the vehicle, namely Bullet Motor cycle bearing Registration No.TAT 155 is directed to be handed over to the revision petitioner with the following conditions:
i) The petitioner shall produce proof of ownership of the vehicle;
ii) The petitioner shall execute a bond for a sum of Rs.10,000/-(Rupees Ten thousand only) with two sureties to the satisfaction of the learned Judicial Magistrate, Eraniel, Kanyakumari District undertaking to produce the same if required by the court at any point of time;
iii) The petitioner shall surrender the R.C.Book and the learned Judicial Magistrate, Eraniel, is at liberty to return the R.C.Book for renewal of the registration or for insuring the vehicle. The R.C Book can be obtained from the court by filing a petition and after the accomplishment of the purpose, the same should be returned to the court;
iv) The petitioner shall not alienate the vehicle without obtaining an order from the learned Judicial Magistrate, Eraniel, Kanyakumari District;
v) The petitioner will produce the said vehicle before the Court as and when summoned to produce the same; and
vi) No major alteration excepting the necessary repairs to make the vehicle road- worthy shall be made.
er To, The Judicial Magistrate, Eraniel, Kanyakumari District.