Patna High Court
Deepak Kumar Roy @ Deepak Kumar vs The State Of Bihar on 12 May, 2017
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.13703 of 2017
Arising Out of PS.Case No. -184 Year- 2015 Thana -BIBHUTIPUR District- SAMASTIPUR
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Deepak Kumar Roy @ Deepak Kumar, Son of Ram Chandra Roy, Resident of
Village-Basadhiya, P.S. Dalsingsarai, District-Samastipur
.... .... Petitioner
Versus
The State of Bihar
.... .... Opposite Party
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Appearance :
For the Petitioner : Mr. Sada Nand Roy, Adv.
For the Opposite Party : Mr. J.N. Thakur, APP.
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
Date: 12-05-2017
Heard learned counsel for the petitioner and learned
A.P.P. for the State.
The present application has been filed for quashing of
order dated 25.1.2017, passed by the learned Additional Sessions
Judge, Rosera in S.T. No. 329 of 2016, arising out of Bibhutipur P.S.
Case No. 184 of 2015, whereby the prayer for release of Bolero
vehicle bearing Registration no. BR 09 R 5396 has been rejected.
The prosecution case would unveil that one Dilip
Kumar got his Fardbeyan recorded by the S.I. C.S. Kumar, S.H.O.,
Bibhutipur in the District of Samastipur at Sub Divisional Hospital,
Dalsinghsarai, at 7.35 P.M. on 28.8.2015, to the effect that on the
same day at 12.45 P.M., the informant was going from his cloth shop
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to Rosera by his Discover Bajaj motorcycle but as soon as he reached
Mustafapur, one Bolero vehicle, without a number plate came and
obstructed his way. Thereafter, four persons came out from the Bolero
vehicle and started assaulting the informant, blindfolded him and
injured him with the butt of a pistol. They took the informant to some
distance and thereafter they released him at a deserted place. The
accused persons took six thousand rupees out from the pocket of the
informant along with a Nokia mobile and also took the motorcycle of
the informant. The accused persons gave back the driving licence,
owner book and one hundred rupees to the informant. Consequently,
Bibhutipur P.S. Case No. 184 of 2015 was registered under section
394 IPC against four unknown criminals.
During investigation, one Munna Jha was arrested and
he confessed his guilt before the police and stated about the Bolero
vehicle of the petitioner being used in the aforesaid occurrence, which
was consequently seized by the police. Thereafter, the petitioner filed
an application for release of the vehicle in question on 4.1.2016,
stating therein that the petitioner is the sole owner of the seized
vehicle which is lying unattended in the premises of Dalsinghsarai
police station and that he is ready to furnish surety bond of any
amount.
The learned Additional District and Sessions Judge,
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Rosera, called for a report from the Officer Incharge of the Rosera
Police station. The Officer Incharge, Bidupur police station,
submitted a report dated 19.12.2016 to the learned Additional
Sessions Judge, Rosera, stating that the petitioner is the sole owner of
the vehicle in question and the investigating agency has no objection
in release of the vehicle in his favour, in case any order is passed in
this regard by the learned court.
It is further submitted that the petitioner produced
registration and insurance documents as well as tax token including
Voter identity card in proof of the ownership of the vehicle. No
rejoinder was filed by the prosecution, however, the learned APP
submitted that the seized vehicle has been used in the crime, hence,
unless it is exhibited, it should not be released.
The learned Additional Sessions Judge, Rosera, vide
order dated 25.1.2017, rejected the prayer for release of the vehicle on
the ground that though the vehicle in question is registered in the
name of the petitioner and tax has been paid up to 5.8.2013, but the
Insurance Policy has already expired on 5.8.2016 and from the perusal
of the case diary, it appears that at the time of occurrence the
petitioner was driving the vehicle, but he has not submitted the
driving licence. Hence, the prayer for release of the vehicle was
rejected on two grounds, i.e., expiration of insurance of the vehicle in
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question and that the petitioner did not submit his driving licence.
Chapter XXXIV of the Cr.P.C. deals with the disposal
of the property. Section 451 Cr.P.C. enables the court to pass order for
custody and disposal of property pending trial in certain cases
whereas section 452 enables the court to order for disposal of the
property at conclusion of trial. Section 457 prescribes the procedure to
be adopted by the police upon seizure of property. The above three
provisions need to be quoted for the proper appreciation of the issue
involved in the present case. They read as follows:
"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.
452.Order for disposal of property at conclusion of trial.-
(1) When an inquiry or trial in any Criminal Court is
concluded, the Court may make such order as it thinks fit
for the disposal, by destruction, confiscation or delivery to
any person claiming to be entitled to possession thereof or
otherwise, of any property or document produced before it
or in its custody, or regarding which any offence appears to
have been committed, or which has been used for the
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commission of any offence.
(2) An order may be made under sub-section (1) for
the delivery of any property to any person claiming to be
entitled to the possession thereof, without any condition or
on condition that he executes a bond with or without
sureties, to the satisfaction of the Court, engaging to restore
such property to the Court if the order made under sub-
section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself
making an order under sub-section (1), direct the property
to be delivered to the Chief Judicial Magistrate, who shall
thereupon deal with it in the manner provided in sections
457, 458 and 459.
(4) Except where the property is livestock or is
subject to speedy and natural decay, or where a bond has
been executed in pursuance of sub-section (2), an order
made under sub-section (1) shall not be carried out for two
months, or when an appeal is presented, until such appeal
has been disposed of.
(5) In this section, the term "property" includes, in
the case of property regarding which an offence appears to
have been committed, not only such property as has been
originally in the possession or under the control of any
party, but also any property into or for which the same may
have been converted or exchanged, and anything acquired
by such conversion or exchange, whether immediately or
otherwise.
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457.Procedure by Police upon seizure of property.- (1)
Whenever the seizure of property by any police officer is
reported to a Magistrate under the provisions of this Code,
and such property is not produced before a Criminal Court
during an inquiry or trial, the Magistrate may make such
order as he thinks fit respecting the disposal of such
property or the delivery of such property to the person
entitled to the possession thereof, or if such person cannot
be ascertained, respecting the custody and production of
such property.
(2) If the person so entitled is known, the
Magistrate may order the property to be delivered to him on
such conditions (if any) as the Magistrate thinks fit and if
such person is unknown, the Magistrate may detain it and
shall, in such case, issue a proclamation specifying the
articles of which such property consists, and requiring any
person who may have a claim thereto, to appear before him
and establish his claim within six months from the date of
such proclamation."
The Apex Court in the case of Sunder Bhai Ambalal
Desai Vs. State of Gujarat, reported in (2002) 10 Supreme Court
Cases 283, while considering the issue of exercise of power of release
of the vehicle and goods during enquiry and trial or on conclusion,
explained the provision of section 451 Cr.P.C. as follows:
"Section 451 clearly empowers the Court to pass
appropriate orders with regard to such property, such as-
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(1) for the proper custody pending conclusion of
the inquiry or trial;
(2) to order it to be sold or otherwise disposed of,
after recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural
decay, to dispose of the same."
The Apex Court further directed for exercise of
jurisdiction under section 451 Cr.P.C. expeditiously and judiciously
and enumerated the various purposes being served in such exercise.
Paragraph 7 reads as follows:
"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 article 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 chance of tampering with the articles."
In order to safeguard the interest of the prosecution the
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Apex Court in the case of Sunderbhai (supra) directed the measures to
be adopted giving instances as elaborated in paragraph 12 of the
judgment. Paragraph 12 reads as follows:
"For this purposes, if material on record indicates
that such articles belong to the complainant at whose house
theft, robbery or dacoity has taken place, then seized articles
be handed over to the complainant after:-
(1) preparing detailed proper panchanama of such
articles:
(2) taking photographs of such articles and a bond
that such articles would be produced if required at the time
of trial; and
(3) after taking proper security."
The Apex Court while dealing with the release of the
vehicle seized by the police or abandoned or the vehicle which are
recovered on complain of theft, observed in the case of Sunderbhai
(supra) in the following manner. Paragraph nos. 17 and 18 read as
follows:
"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
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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 panchnama should be prepared."
Dismayed with the fact that directions given in the case
of Sunderbhai (supra), the Apex Court and in the case of General
Insurance Council & Anr. Vs. State of Andhra Pradesh and Ors.
(2010) 6 Supreme Court Cases 768, while dealing with the issue of
custody and disposal of vehicles seized in accidents, has dealt in
paragraph nos. 13 to 15, in the following words:
"13. In our considered opinion, the aforesaid information is
required to be utilized and followed scrupulously and has to be
given positively as and when asked for by the Insurer. We also
feel, it is necessary that in addition to the directions
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issued by this Court in Sunderbhai Ambalal Desai (supra)
considering the mandate of Section 451 read with Section
457 of the Code, the following further directions with regard to
seized vehicles are required to be given.
"(A) Insurer may be permitted to move a separate
application for release of the recovered vehicle as soon
as it is informed of such recovery before the
Jurisdictional Court. Ordinarily, release shall be made
within a period of 30 days from the date of the
application. The necessary photographs may be taken
duly authenticated and certified, and a detailed
panchnama may be prepared before such release.
(B) The photographs so taken may be used
as secondary evidence during trial. Hence, physical
production of the vehicle may be dispensed with.
(C) Insurer would submit an undertaking/guarantee
to remit the proceeds from the sale/auction of the
vehicle conducted by the Insurance Company in the
event that the Magistrate finally adjudicates that the
rightful ownership of the vehicle does not vest with the
insurer. The undertaking/guarantee would be furnished
at the time of release of the vehicle, pursuant to the
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application for release of the recovered vehicle.
Insistence on personal bonds may be dispensed with
looking to the corporate structure of the insurer."
14. It is a matter of common knowledge that as and when
vehicles are seized and kept in various police stations, not only
they occupy substantial space of the police stations but upon being
kept in open, are also prone to fast natural decay on account of
weather conditions. Even a good maintained vehicle loses its road
worthiness if it is kept stationary in the police station for more than
fifteen days. Apart from the above, it is also a matter of common
knowledge that several valuable and costly parts of the said
vehicles are either stolen or are cannibalised so that the vehicles
become unworthy of being driven on road. To avoid all this, apart
from the aforesaid directions issued hereinabove, we direct that all
the State Governments/ Union Territories/Director Generals of
Police shall ensure macro implementation of the statutory
provisions and further direct that the activities of each and every
police stations, especially with regard to disposal of the seized
vehicles be taken care of by the Inspector General of Police of the
concerned Division/Commissioner of Police of the concerned
cities/Superintendent of Police of the concerned district.
15. In case any non-compliance is reported either by the
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Petitioners or by any of the aggrieved party, then needless to say,
we would be constrained to take a serious view of the matter
against an erring officer who would be dealt with iron hands. With
the aforesaid directions, this writ petition stands finally
disposed of."
Hence, in the General Insurance Council (supra), the
Apex Court has given certain directions with regard to the seized
vehicles which are required to be noticed.
The Apex Court finally held that the seized vehicles are
kept in various police stations. They not only occupy substantial space
in the police station but they are subject to the natural decay since
they are kept in open space and further more, the valuable part are at
risk of being removed.
In the present case, admittedly, there is no dispute that
the vehicle is registered in the name of the petitioner. The prayer for
release has been rejected on two grounds viz., the petitioner did not
produce the driving licence and the seized vehicle's insurance expired
on 5.8.2016. Chapter II of the Motor Vehicles Act deals with
licensing of drivers of motor vehicles. Section 3 of the Act prescribes
the necessity for driving licence which reads as follows:
"3. Necessity for driving licence. -(1) No person shall
drive a motor vehicle in any public place unless he holds
an effective driving licence issued to him authorising him
to drive the vehicle; and no person shall so drive a
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transport vehicle [other than a motor cab hired for his
own use or rented under any scheme made under sub-
section (2) of section 75] unless his driving licence
specifically entitles him so to do.
2. The conditions subject to which sub-section (1)
shall not apply to a person receiving instructions in
driving a motor vehicle shall be such as may be prescribed
by the Central Government."
A perusal of the aforesaid provision depicts that having
the driving licence is a pre-condition for driving and not for
keeping/owning the vehicle. Hence, on this score, the order impugned
appears to be perverse, as a person may be the owner of a vehicle
without having driving licence and the vehicle has to be released to
the rightful owner. Section 181 of the Act prescribes the punishment
for driving a vehicle without licence which reads as follows:
181. Driving vehicles in contravention of section 3 or
section 4. - Whoever, drives a motor vehicle in
contravention of section 3 or section 4 shall be punishable
with imprisonment for a term which may extend to three
months, or with fine which may extend to five hundred
rupees, or with both."
Hence, if a person drives without licence, he will be
penalized under the Act for which the learned court below was not
supposed to be concerned for non-compliance or violation of Section
3 of the Act while considering the question of release of the vehicle in
question.
Section 146 of the Act mandates that no person shall
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use, except as a passenger, or cause or allow any other person to use, a
motor vehicle in a public place, unless there is force in relation to the
use of the vehicle by that person or that other person. Section 146
reads as follows:
"146. Necessity for insurance against third party risk.
-(1) No person shall use, except as a passenger, or cause
or allow any other person to use, a motor vehicle in a
public place, unless there is in force in relation to the
use of the vehicle by that person or that other person, as
the case may be, a policy of insurance complying with the
requirements of this Chapter.
[Provided that in the case of a vehicle carrying, or
meant to carry, dangerous or hazardous goods, there shall
also be a policy of insurance under the Public Liability
Insurance Act, 1991.]
2.Sub-section (1) shall not apply to any vehicle
owned by the Central Government or a State Government
and used for Government purposes unconnected with any
commercial enterprise.
3.The appropriate Government may, by order,
exempt from the operation of sub-section (1) any vehicle
owned by any of the following authorities, namely:--
a. the Central Government or a State Government, if
the vehicle is used for Government purposes
connected with any commercial enterprise;
b. Any local authority;
c. Any State transport undertaking:
Provided that no such order shall be made in relation to any
such authority unless a fund has been established and is
maintained by that authority in accordance with the rules
made in that behalf under this Act for meeting any liability
arising out of the use of any vehicle of that authority which
that authority or any person in its employment may incur to
third parties."
Section 196 of the Act prescribes punishment for
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driving uninsured vehicle, which reads as follows:
"196. Driving uninsured vehicle.-Whoever drives a motor
vehicle or causes or allows a motor vehicle to be driven in
contravention of the provisions of section 146 shall be
punishable with imprisonment which may extend to three
months, or with fine which may extend to one thousand
rupees, or with both."
Hence, in view of this Court, since the insurance of the
vehicle in question was valid up to 5.8.2016, then the learned court
below ought to have directed the petitioner to get the insurance of the
vehicle renewed because without insurance the vehicle could not have
been taken from the police station to the petitioner's place as the
Section 146 of the Act mandates a valid insurance for using vehicle at
public place.
It is submitted by learned counsel for the petitioner that
the petitioner produced all the relevant documents and the
investigating agency had no objection for release of the vehicle in
question. However, the petitioner is ready to get the insurance of the
vehicle renewed.
The petitioner has not made the informant as opposite
party in the present application and has also not placed the petition for
release, on record. In the present case, this not in dispute that the
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vehicle in question has been claimed by none except the petitioner.
More over, the Officer Incharge of Rosera Police station, in the report
contained in Annexure 2, has admitted that the petitioner is the owner
of the vehicle and he has no objection in release of vehicle in question
in favour of the petitioner. Hence, at this stage this Court is not
inclined to get the informant impleaded as opposite party which will
further unnecessarily delay the issue of release of the vehicle in
question.
Considering the rival submissions of the parties, this is
not in dispute that the vehicle in question was registered in the name
of the petitioner on the alleged date of seizure. So far as the question
that the petitioner has not produced any driving licence is concerned,
the release of the vehicle on that ground cannot be denied.
In view of the discussions made above, this Court is of
the opinion that no useful purpose would be served, if the vehicle is
left to rot and deteriorate in the premises of the police station at
Dalsingsarai.
In view of the above discussion, the order dated
25.1.2017, passed by the learned Additional Sessions Judge, Rosera in S.T. No. 329 of 2016, arising out of Bibhutipur P.S. Case No. 184 of 2015 is set aside. It is expected from the learned Additional Sessions Judge, Rosera to get the photograph of the vehicle in question taken Patna High Court Cr.Misc. No.13703 of 2017 dt.12-05-2017 17/17 along with Xerox copy of registration and insurance papers submitted on affidavit duly authenticated along with adequate amount of bond and sureties and on verification of the documents, particularly, registration and the renewed insurance, appropriate order be passed for release of the vehicle in question in favour of the petitioner with a rider that the petitioner will take prior permission of the learned trial court, if he gets inclined to sell the vehicle in question or modify its structure and produce the same as and when required by the learned trial court. The whole exercise should be completed within a period of two weeks from the date of receipt/production of a copy of this order.
With the aforesaid observation/direction, this application stands disposed of.
(Dinesh Kumar Singh, J) Anil/-
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