Point of Law: provision of Section 452 of the Code and Para-227 of the Criminal Manual even when require the continuity of the muddamal articles which is not perishable.

JUDGMENT :

SONIA GOKANI, J.

The appellant is the owner of the vehicle bearing registration No.GJ.12.CR.5537 Activa 3G. The same was seized in connection with FIR being I CR No.1 of 2018 registered with Mandvi police station for the offence punishable under Sections 302, 201 and 114 of the Indian Penal Code [“IPC” for short] and Section 135 of the Gujarat Police Act.

2. The son of the appellant is an accused, who has been convicted for the offence under Sections 302, 201 and 114 of the IPC. The FIR culminated into Sessions Case No.22 of 2018 which was against 6 accused one of them was the son of the present appellant.

2.1 The appellant preferred an application under Section 452 of the Code of Criminal Procedure [“Code” for short] at the end of the trial seeking its release. The same was rejected by the learned 8th Additional Sessions Judge, Kutch at Bhuj vide order dated 16.6.2021 and hence, the challenge.

3. Upon issuance of Notice, learned APP waives the notice for and on behalf of the respondent State and has assisted the Court.

4. We have extensively heard learned advocate Mr. Rahul Dave appearing with learned advocate Mr. Kirtidev Dave for the appellant. Learned advocate Mr. Rahul Dave has emphatically urged that the Court has denied on the ground that the complainant had not been impleaded as a party opponent. There are no claimants of the muddamal vehicle which was not even used during the course of commission of offence. It was according to the case of prosecution, used for commutation to reach to the place and the present appellant is also a suspect. It was her son who has unfortunately misused this for reaching to the place but that could hardly be the reason for the Court to deny the custody of the vehicle at the end of the trial. She has, therefore, urged that the order passed on 16.6.2021 by the Court of learned 8th Additional Sessions Judge, Kutch at Bhuj be quashed and set aside.

5. Learned APP has drawn the attention of the Court to the fact that the judgment and order of Sessions Case No.22 of 2018 categorically mentions that at the end of the appeal period, the non-valuable muddamal shall need to be destroyed and if there is no order in relation to any other muddamal, after the appeal period under Section 452 of the Code and Criminal Manual Para-227, necessary procedure shall be taken recourse to.

5.1 She has urged that the Court has rightly passed an order looking at Para-227 of the Criminal Manual which provides that in case an appeal or revision lies to the Sessions Court, the trial Court has not to dispose off the muddamal for one month, after expiry of period of limitation of an appeal or revision and if the intimation regarding filing of appeal or revision is received, till disposal of the appeal or revision by the Sessions Court, the same may not be done. She has also further submitted that the trial Court has not to dispose off the muddamal lying in the custody if the appeal or the revision is pending.

6. Having heard both the sides and also having closely perused the judgment and order which is under challenge dated 16.6.2021 passed in Criminal Misc. Application No.532 of 2021, the Court concerned was actuated by the provision of Section 452(4) and Para-227 of the Criminal Manual. The Court has arrived at the conclusion that it is neither a livestock nor perishable item. The judgment and order of the Sessions Court delivered in Sessions Case No.22 of 2018 is challenged in the appeal and hence, the appeal being Criminal Appeal No.956 of 2021 and other appeals are pending before this Court. Therefore, the delivery or the possession of the custody of the muddamal under Section 452 is not desirable. The judgment of the sessions case has been challenged by the son of the present appellant Manoj Valji Maheshwari and one Laxman alias Lachhudo Shivaji Baliya (Maheshwari). The muddamal vehicle, according to the case of prosecution, was seized from the possession of the accused as per his disclosure statement and the sa