Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(Guj) 402

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, J.
HDFC BANK LTD. THRO-NITINKUMAR BALDEVBHAI PATEL - Applicant
Vs.
STATE OF GUJARAT & Ors. - Respondent
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7291 of 2016 With SPECIAL CRIMINAL APPLICATION NO. 7489 of 2016 With SPECIAL CRIMINAL APPLICATION NO. 7502 of 2016
Decided On : 16-02-2017

Advocates Appeared:
For the Applicant : MR. R.R. MARSHALL, MR. NIKUNJ D. BALAR,
For the Respondent: MR. J.M. PANCHAL, MR ASHISH H SHAH

IMPORTANT POINTS
(1) Section 451 enables the Magistrate to provide for the interim custody of such property (muddamal) pending the conclusion of enquiry or trial. The arrangement is only temporary and the main object is to protect or preserve the property pending trial.
(2) Even if the person entrusted with interim custody is the owner, his possession or custody during the period of entrustment is only as a representative of the Court and not in his own independent right.

Headnote:Constitution of India, 1950 – Article 226 & 227 – Code of Criminal Procedure, 1973 – Section 451, 452 – Present 3 applications are interrelated and arose out of common order passed by Addl. Sessions Judge – First application is filed by bank seeking issuance of writ of certiorari for setting aside the impugned order whereby sale permission of hypothecated car is not granted – Other 2 applications are filed by a private party (purchaser) seeking possession of a car seized by the police as muddamal during pendency of trial – Bank contended that the accused persons availed of loan facility from the Bank and has also executed a hire-purchase agreement, thus, bank is lawful owner of the vehicle – Purchaser submits that his interest should be protected as an amount of Rs.1.23 Crore has been paid to the accused persons – Section 451 enables the Magistrate to provide for the interim custody of such property (muddamal) pending the conclusion of enquiry or trial – Even in cases of rival claims for interim custody, the preference made to one person does not settle any right to the ownership or possession – Under hire purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them – Mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee – As per Motors Vehicle Act, a registration certificate is essential before the vehicle is used on the road, thus, the person in whose favour the certificate of registration is issued or stands obviously is the proper person for the interim custody of the vehicle seized – Thus, vehicle not to be alienated till conclusion of trial.
Result – Applications of purchaser allowed and application of bank dismissed

JUDGMENT :

J.B.PARDIWALA, J.

1. Since the issues raised in all the three captioned applications are interrelated and the challenge is also to a common order passed by the Additional City Sessions Judge, Court No.9, Ahmedabad, those were heard analogously and are being disposed of by this common judgment and order.

2. The Special Criminal Application No.7291 of 2016 is filed by the H.D.F.C. Bank Private Limited, through its authorised signatory. Where as the other two connected applications are filed by a private party claiming possession of the car seized by the police as a muddamal in connection with a criminal offence.

3. The Special Criminal Application No.7291 of 2016 filed by the Bank is with the following prayers:

“7(a) Be pleased to admit and allow this petition.

(b) Be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction for quashing and setting aside the order passed by the learned Additional Sessions Judge Court No.9, Ahmedabad city in Criminal Revision Application NO.97 of 2016, with respect to the part by which, the Sale Permission is not granted to the petitioner and consequently be pleased to quash and set aside the order dated 1532016, passed by the learned Metropolitan Magistrate Court No.22 Ahmedabad in Criminal Miscellaneous Application No.10 of 2016 and further be pleased to grant application Exhibit 19 filed in Criminal Miscellaneous Application NO.10 of 2016. And further be pleased to modify the condition of furnishing personal bond considering the amount as per valuation report instead of the Bank Guarantee by present Bank.

4. The Special Criminal Applications Nos.7489 of 2016 and 7502 of 2016 are with the following prayers:- “6 (a) This Hon'ble Court be pleased to admit and allow this Special Criminal Application.

(b) This Hon'ble Court be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned judgment and order dated 03.09.2016 passed by the learned Additional Sessions Judge, Court No.9, Ahmedabad in Criminal Revision Application NO. 97/2016 and further be pleased to allow the said Criminal Misce. Application No. 10/2016 with cost throughout.

(c) Pending admission, final hearing and disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned judgment and order dated 03.09.2016 passed by the learned Additional Sessions Judge, Court No.9, Ahmedabad in Criminal Revision Application No.97/2016;

(d) That exparte ad interim relief in terms of the aforesaid prayer clause be granted.

(e) Any other relief which this Hon'ble Court deems fit and expedient be granted in the interest of justice.”

5. The facts giving rise to all the three applications may be summarised as under:-

5.1. The applicant of the Special Criminal Applications Nos.7489 of 2016 and 7502 of 2016 respectively is engaged in the business of automobiles. He owns an automobile garage running in the name of Chirag Motors situated in Ahmedabad. He lodged a First Information Report being C.R. No.I220 of 2015 at the Ellisbridge Police Station, Ahmedabad city on 14th December 2015 for the offence punishable under Sections 406, 420, 465, 467, 471 and 120B of the Indian Penal Code. It is his case that one Randhirbhai (accused), serving as a 'Manager' of the Infinity Motors Private Limited at Mumbai, informed him on 25th September 2015 that one of his customers was intending to sell the “PORSCHE 911 CARRERA 4” car for Rs.1.35 Crore. The photographs of the car were sent on WhatsApp to the applicant. After few negotiations, the deal was struck and the applicant purchased the car for Rs.1.20 Crore. On 26th September 2015, an amount of Rs.5 lac was paid by the applicant to Randhirbhai and Rs.1.10 Crore were paid through the RTGS in the account of the SBK Films Private Limited. The SBK Films Private Limited was the owner of the car in

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