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2010 Supreme(Bom) 113
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE R.M. SAVANT
Shri Sameer Subhash Pednekar
Versus
State (through PSI AR Umarye Police Officer, Pernem Police Station) & Another
CRIMINAL WRIT PETITION NO. 123 OF 2009
Decided on : 22-01-2010
For the Petitioner:S. Dessai, Senior Advocate with Pavithran A. V., Advocate.
For the Respondents:R1, C.A. Ferreira, Public Prosecutor, R2, Arun Bras De Sa with S. Shet, Advocates.
Headnote:Criminal Procedure Code, 1973 - Sections 451 and 457 - Seizure of truck - Offence under Section 379 of Indian Penal Code - Petitioner citing Section 457 of Code of Criminal Procedure - Magistrate directed police to deliver vehicle to petitioner - Application for release of truck, allowed - Section 451 of Cr PC could not be put forward as truck not produced before Magistrate - Once Magistrate unconfined truck, he should not have considered application of respondent 2 and passed contradictory orders - Challenged order cannot be apprehended under Section 451 - Challenged order on hold - Petitioner to keep hold of truck subject to situation imposed by Court. - The facts of the present case disclose that Section 451 of the Criminal Procedure Code could not have been invoked at all as the property which is a truck has not been produced during any inquiry or trial before the Magistrate. The said provision can also be invoked so that the property could be preserved pending inquiry and trial. As indicated above, such is not the case in the instant matter. Moreover, once the Magistrate had released the truck in favour of the registered owner which was in terms of the mandate of Section 457 of the Criminal Procedure Code, it was improper on the part of the learned Magistrate to thereafter consider the application of the respondent No. 2 herein and allow the said application thereby the learned Magistrate in terms has passed two conflicting orders.
The respondent No. 2 would be entitled to challenge the order dated 11.12.2009 which has been passed in favour of the petitioner if permissible in law. The parties and the Counsel agree to take photographs on 25.1.2010 at 11.00 a.m. or any subsequent date which they fix by mutual consent, on which date and time the officers of the respondent No. 2 - Finance Company and the petitioner will remain present at the site where the vehicle is presently parked i.e. near the house of one Shri Shantaram Narayan Pawar at Malpem, Pernem, Goa. The parties will thereafter submit the said photographs in the Court of the learned J.M.F.C., Pernem, which the learned Magistrate will keep in the Court record.
Criminal Procedure Code, 1973 - Sections 457 and 451 - Release of vehicle - Petitioner’s truck was financed by the respondent company - Truck taken away by the respondent company without giving information to the petitioner - Police registered the offence under Section 379 of IPC and took the custody of the Truck - Magistrate on application by petitioner under Section 457, Cr PC passed order for the release of truck - The respondent finance company also moved application under Section 451 of Cr PC for the release truck which allowed - Challenged - Held - Impugned order cannot be sustained on the touch stone of Section 451 - Reading of Section 451 discloses that said section cannot be invoked for returned of property which is produced before the Magistrate for an inquiry or trial - Section 451 could not have been involved at all as the property which is a truck has not been produced during any inquiry or trial before the Magistrate - Moreover, when once Magistrate had released the truck in favour of the registered owner which was in terms of the mandate of Section 457, it was improper on part of Magistrate to thereafter consider the application of respondent and allow the said application.
Rule with the consent of the parties made returnable forthwith and heard.
2. This Petition takes exception to the Order dated 15.12.2009, passed by the learned J.M.F.C., Pernem Goa, by which order the application filed by the Respondent No.2 herein under Section 451 of Criminal Procedure Code came to be allowed and the Investigating Officer was directed to issue necessary letter to the registered owner of the truck bearing No. GA-03-T-4685 to hand over the truck to the Respondent No.2 herein within 15 days.
3. The Petitioner herein is the registered owner of the said truck bearing No. GA-03-T-4685 which he has purchased after availing of finance which has been extended by the Respondent No.2 - Finance Company to the extent of Rs. 6,50,000/-. A complaint came to be filed by the Petitioner abovenamed that on 26.3.2009 at about 18.30 hours the Petitioner had parked the said truck at the residence of one Shantaram Namdev Pawar at Malpem, Pernem.
4. It is the case of the Petitioner that after sometime the unknown persons took away the truck from the parking place. Thereafter, the Petitioner was searching for the truck and on 9.8.2009 he found the said truck parked in one yard at Osargao, Kankavli in Sindhudurgh District of Maharashtra. Upon inquiry he came to know that the said truck was taken away by the officials of the Respondent No.2 -Finance Company without any intimation to him. The Pernem Police Station has registered an offence under Crime No.162/2009 under Section 379 of Indian Penal Code. During the course of the investigation, the police have recorded the statements and seized the truck under panchanama from the yard at Osargao Kankavli and kept it in their safe custody. The Petitioner thereafter moved an application invoking Section 457 of the Criminal Procedure Code for return of the said truck. Sub Section 2 of Section 457 postulates that if the person who is entitled to the said truck is known, the Magistrate may order the property to be delivered to him on such conditions as it deems fit. The eventuality if the said person is unknown is also mentioned in the sub section (2). The Petitioner's application was considered by the learned Magistrate and by the order dated 11.12.2009 the learned Magistrate ordered the police to deliver the said vehicle to the Petitioner above-named. Accordingly, the Petitioner was delivered the vehicle and said vehicle is in his possession.
5. It appears that on the same day the Respondent No.2 -Finance Company filed an application for release of the said truck to the Respondent No.2 inter-alia on the grounds mentioned in the said application but primararily contending that the Respondent No.2 was the financer of the said truck. The said application is purportedly filed under Section 451 of Criminal Procedure Code. A reading of the said Section discloses that the said Section can be invoked for return of the property which is produced before the Magistrate in an inquiry or trial. The facts of the present case disclose that Section 451 of the Criminal Procedure Code could not have been invoked at all as the property which is a truck has not been produced during any inquiry or trial before the Magistrate. The said provision can also be invoked so that the property could be preserved pending inquiry and trial. As indicated above, such is not the case in the instant matter. Moreover, once the Magistrate had released the truck in favour of the registered owner which was in terms of the mandate of Section 457 of the Criminal Procedure Code, it was improper on the part of the learned Magistrate to thereafter consider the application of the Respondent No.2 herein and allow the said application thereby the learned Magistrate in terms has passed two conflicting orders.
6. The impugned order as indicated above cannot be sustained on the touch stone of Section 451 of the Criminal Procedure Code which is the provision purportedly invoked by the Respondent No.2 - Finance Company. In tha
