Kalappa alias Kallappa Hanumantappa Kamakeri vs State of Karnataka

B. Sreenivase Gowda, J.—The petitioner, aggrieved by the order dated 17.11.2015 passed in S.C. No.59/2013 by the I Addl. District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in rejecting the application filed under Section 457, Cr.P.C., has preferred this petition.

Heard the learned Counsel for the petitioner and the learned HCGP for the respondent. Perused the order passed by the Sessions Court rejecting the application filed by the petitioner under Section 457 of Cr.P.C..

Facts leading to this case are in connection with Crime No. 67/2013 of Mudhol Police Station, now pending in S.C.No.59/2013 on the file of the I Additional District & Sessions Judge, Bagalkot sitting at Jamakhandi, a Maruti 800 MPC BS III AC car bearing Reg.No.KA-48/M-4833 was seized by Mudhol Police Station vide Crime P.F.No.31/2013 and was produced before the jurisdictional Magistrate on the allegation that the petitioner/accused had taken the deceased in the said car and committed her murder and the car was used for commission of offence under Section 302, 201 read with Section 34 of IPC. As the offence was exclusively triable by the Sessions Court the case was committed by the learned JMFC, Mudhol to the I Additional District & Sessions Judge, Bagalkot, sitting at Jamakhandi, and registered the case as S.C. No.59/2013. The petitioner/accused being the registered owner of the car preferred an application under Section 457 of Cr.P.C. before the learned Sessions Judge praying to release the car in his favour undertaking that he would produce the car before the court as and when it is required. The learned Session'' Judge rejected the application on the ground that it is the only material evidence in the case and as the trial is not yet over it cannot he released in favour of the accused.

The learned Counsel for the petitioner submits the petitioner is an agriculturist and a milk vendor and he requires the car for Ins day-to-day use. The petitioner is ready and prepared to produce the car before the learned Sessions Judge as and when it is required for trial and the petitioner also undertakes that he will not change the nature of the car nor he will dispose of the car till the disposal of S.C.59/2013. Therefore the learned Counsel prays for allowing the petition and ordering for release of the car in favour of the petitioner.

The learned HCGP opposes the request made by the learned Counsel for the petitioner on the ground that the accused carried the deceased Bebakka in his car and caused her death with the help of other accused persons and therefore the car is a material evidence and it is very much required for the purpose of trial. He submits if the car is ordered to he released the petitioner may change its nature and in such an event, it would hamper the fair trial. Therefore, he prays for rejection of the application.

As per the judgment of the Hon''ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in 2002 Supreme (Raj) 1093, when ever a running vehicle is seized by the police in connection with any crime and if it is not claimed by the true owner, the vehicle has to be disposed of within six months from the date of seizure as there is chance of misusing the vehicle for once again committing the crime.

In the instant case, it is not in dispute that the petitioner is registered owner of the vehicle and it was seized by Mudhol Police under MDL.PS.CR.PF.NO.31/2013 at item No. 2 and produced before the learned JMFC. Mudhol in connection with Crime No. 67/2013 of Mudhol Police Station and now pending in S.C.No.59/2013 on the file of the I Addl. District & Sessions Judge, Bagalkot, sitting at Jamakhandi and on the application filed by the police permission was granted to the police for retaining the possession of the vehicle. The prosecution opposed the application filed by the petitioner under Section 457 of Cr.P.C. before the learned Sessions Judge for release of the car in favour of the petitioner on the ground that the car is the material evidence in the case and the trial is not yet complete and therefore it cannot be released. Accepting the objection filed by the prosecution, the learned Sessions Judge rejected the application and declined to release the car holding that the car is material evidence and it is very much required for fair trial and as the trial is not yet completed it cannot be released.

The Hon''ble Supreme Court in the case cited supra has held that whenever a vehicle is seized by the police in connection with any crime and that if it is not claimed by the accused/owner or by any 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 the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner. If the Insurance Company fails to take possession, the vehicle 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. Further, it has been held that whenever a vehicle is seized by the police in connection with any crime and if it is of no use to keep such seized vehicle at the police station for a long period, it is for the learned Magistrate to pass appropriate orders for taking proper bond and security for return of the said vehicle if required at any point of time. Therefore, as per the guidelines laid down by the Hon''ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in 2002 Supreme (Raj) 1093, there is no impediment in law to release the vehicle subject to certain conditions.

Hence the following:

ORDER

i) The criminal petition is allowed.

ii) The order dated 17.11.2015 passed in S.C.No.59/2013 by the I Addl . District and Sessions Judge, Bagalkot, sitting at Jamakhandi, is hereby set-aside.

iii) Application filed under Section 457 of Cr.RC. for release of the vehicle is allowed and the vehicle, Maruti 800 MPI BS III AC (LMV Car) bearing Reg.No.KA.48 M.4833, Chassis No.MA3ECA12SO2855054CC, Engine No.F8BIN4505558 seized by Mudhol Police vide Mudhol PS.Cr.PF.No.31/2013 at item No. 2, is hereby ordered to be released in favour of the petitioner.

The petitioner shall execute a bond for a sum of Rs.50,000/- with one surety for the like sum to the satisfaction of the learned I Addl. District and Sessions Judge, Bagalkot, sitting at Jamakhandi, incorporating the following terms and conditions:

(i) The petitioner shall produce the aforesaid vehicle before the sessions court as and when he is called upon to do so.

(ii) The petitioner shall not change the model, the colour, the registration number, chassis number and engine number of the car.

(iii) He shall utilise the car only for his personal use and shall not give the car into custody of any other person

(iv) The Investigation Officer of the Mudhol Police Station before releasing the car shall draw a detailed mahazar of the car as to its colour, model, registration number, chassis number, engine number and etc., and shall submit the mahazar before Sessions Court.

In the event of disobedience of any of the aforesaid conditions, the respondent-State is at liberty to move the Sessions Court for cancellation of this order for handing over the car into the custody of the investigation officer in the case.