Anbarasu vs State

M. Venugopal, J.—The Petitioner has focussed the instant Criminal Revision Case as against the order dated 16.11.2015 in Cr.MP. No. 4841 of 2015 passed by the learned Judicial Magistrate, Melur.

The Learned Judicial Magistrate, Melur, while passing the impugned order dated 16.11.2015 in Cr.MP. No. 4841 of 2015 (filed by the petitioner) had observed the following:

"Heard, Perused. This petition was not filed by the original owner and only power deed of the wife of the owner is filed. But it is not registered. There is no death certificate."

and resultantly, dismissed the petition. Being aggrieved against the order of dismissal passed by the Learned Judicial Magistrate, Melur, in Cr.MP. No. 4841 of 2015 dated 16.11.2015, the revision petitioner has filed the instant Criminal Revision Case as an aggrieved person and further that he has exercised his right of preferring the Criminal Revision Case before this Court as envisaged under the Criminal Procedure Code.

According to the Learned counsel for the Petitioner, the Learned Judicial Magistrate, Melur, while passing the order in Cr.MP. No. 4841 of 2015, dated 16.11.2015, had failed to note that the original owner of the JCB vehicle had expired and his legal heirs sold the vehicle to the petitioner.

The Learned Counsel for the Revision Petitioner urges before this Court that the Learned Judicial Magistrate had failed to accept the ''Consent Deed'' furnished by the Legal Heirs of the original owner. Finally, it is the submission of the learned counsel for the Petitioner that the guidelines prescribed by the Honourable Supreme Court in the decision Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, , were not adhered to by the learned Judicial Magistrate, Melur.

At this juncture, it is to be pointed out that the petitioner in Cr.MP. No. 4841 of 2015 before the learned Judicial Magistrate, Melur, in paragraph No. 2 of the affidavit had categorically averred that he is the owner of the vehicle in the main case and that the respondent/Police seized his JCB bearing Registration No. Py01 AA 1570.

Further, the Petitioner had also averred that in paragraph No. 3 of the affidavit that the respondent/Police had kept his vehicle in sunlight etc., and further in paragraph No. 4 had proceeded to state that he had purchased the vehicle through finance/hypothecation and if the vehicle is allowed to ply, then, he would repay the finance due amount to the concerned person. Also that he had given an undertaking that if the said vehicle was required for trial or enquiry, he is ready to produce the same.

The learned counsel for the Petitioner, in support of the contention that the vehicle JCB bearing Registration No. PY 01 AA 1570 allegedly involved in Cr. No. 407 of 2015 on the file of Keelavalavoo Police Station is to be returned to him, cites the decision of the Honourable Supreme Court in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, at special page No. 181 , whereby and whereunder in paragraph No. 16 to 18, it is observed and held as under:

"16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles 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.

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.

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."

It comes to be known that the original owner of the vehicle bearing No. PY 01 AA 1570 was one Sudhakar, who died on 24.09.2013, as seen from the death certificate, filed by the petitioner in the typedset of papers. The said deceased Sudakar was not in a position to pay the due amount and for want of financial clearance, during his life time, he was not in a position to transfer the vehicle in his name. It is a matter of record that the said Sudhakar had expired and it appears that the petitioner had obtained a consent letter from the legal heirs of the deceased Sudhakar to release the vehicle. The consent letter furnished by the legal heirs of the deceased Sudhakar, namely his wife Vanitha for herself and on behalf of the minor daughter undertakes that the JCB vehicle in question was sold for Rs. 4,50,000/- and that the vehicle was taken custody by one Nagajothi, W/o. Srinivasan.

Asfar as the present case is concerned, this Court, on going through the impugned order dated 16.11.2015 in Cr.MP. No. 4841 of 2015, dated 16.11.2015, passed by the Learned Judicial Magistrate, Melur, is of the considered view that the petitioner had not furnished the death certificate of original owner Sudhakar and also that in the impugned order, there was an observation by the learned Judicial Magistrate, Melur that the power deed was not registered and therefore, Cr.MP. No. 4841 of 2015, filed by the petitioner was ultimately dismissed.

It is to be pointed out that the power under Section 451 of Code of Criminal Procedure is summary in nature relating to custody and possession, given to the Learned Judicial Magistrate and as specified in Criminal Procedure Code and the same ought not to be used in case, if the Civil Court is seized of the matter to decide the question of ownership and right to possession. It cannot be gainsaid that a Court of Law under Section 451 of Criminal Procedure Code does not decide the question of right of parties, in respect of a property, if at all, it decides merely about the custody of such property.

Be that as it may, even though the original owner of the JCB in question was one Sudhakar, admittedly, he died on 24.09.2013 and thereafter, on behalf of the petitioner, a consent deed was filed before the trial Court. Unfortunately, the Death certificate of Sudhakar was not marked before the trial Court as an exhibit/documentary evidence on behalf of the Petitioner. Also that the Petitioner had not examined himself as witness in Cr.MP. No. 4841 of 2015. Moreover, he had not also examined any other witness apart from himself in Cr.MP. No. 4841 of 2015 filed by him before the trial Court. In the absence of the Petitioner has not marked the Death certificate of the original owner Sudhakar dated 01.10.2013, the Legal Heir certificate dated 28.10.2013 and also not marked the consent Letter/Deed dated 16.11.2015 of the Legal Heirs of the said Sudhakar, the trial Court was perforced to dismiss Cr.MP. No. 4841 of 2015.

At this stage, this Court very pertinently points out that the petitioner had not chosen to mark these documents by adducing oral and documentary evidence and also by not examining relevant witnesses as the case may be. However, on the facts and circumstances of the present case, which floats on the surface, this Court comes to an inevitable and irresistible conclusion that the petitioner must be provided with an opportunity to substantiate/prove his case by marking the documents like Death Certificate dated 01.10.2013, Legal Heir certificate dated 28.10.2013 and the consent Letter dated 16.11.2015 through competent witnesses in Cr.MP. No. 4841 of 2015 before the trial Court in the manner known to Law and in accordance with Law. Viewed in that perspective, this Court sets aside the impugned order dated 16.11.2015 in Cr.MP. No. 4841 of 2015, passed by the trial Court. Consequently, this Criminal Revision Case succeeds.

In the result, this Criminal Revision Case is allowed. The impugned order dated 16.11.2015 in Cr.MP. No. 4841 of 2015 passed by the Learned Judicial Magistrate, Melur is hereby set aside by this Court for the reasons ascribed in this Criminal Revision Case. The Learned Judicial Magistrate, Melur is directed to restore Cr.MP. No. 4841 of 2015 on his file and to dispose of the said miscellaneous petition, of-course, after providing due opportunities to the respective parties by permitting them to adduce necessary oral and documentary evidence in the manner known to law and in accordance with law. Also that, is open to the respective parties, to raise all factual and legal pleas before the Learned Judicial Magistrate, Melur, at the time of deciding Cr.MP. No. 4841 of 2015 afresh. It is also made clear that the Learned Judicial Magistrate, Melur is to pass a reasoned, speaking on merits in qualitative and quantitative terms and that too in a dispassionate manner, untrammelled and uninfluenced with any of the observations made by this Court in the present Criminal Revision.