Om Prakash Sharma vs Sessions Judge, Sidharthnagar and Others

B.L. Yadav, J.—Petitioner the claimant of Truck No. U.H.N. 2062 which is case property in Crime No. 97 of 1991, is an accused for an offence under Sections 302/364/379/411/201/420/467/468 IPC. He has filed present petition under Article 226 of the Constitution with the prayer that the order dated 3-2-1992 passed by the "Sessions Judge Siddharthnagar confirming the order dated 19-10-1991 passed by the Chief Judicial Magistrate Siddharthnagar rejecting the application of the Petitioner for release of aforesaid vehicle as the same was registered in his name, may be quashed by issuing a writ of Certiorari.

The prosecution story was that certain material was sent through the Truck in question and the deceased also went on the Truck along with material and when the deceased did not turn up FIR was lodged at the Police Station. The investigation was in progress. It was alleged by the Petitioner that during investigation the Truck in question was seized by the police and certain articles were also recovered. The Truck No. UHN 2062 was actually used as Truck No. UHN 3002 on 21-2-1991 after making interpolation and change in the chassis and engine, Petitioner''s case was that the Truck was registered in his name hence the same may be released in his favour The Chief Judicial Magistrate Siddharthnagar by his order dated 19-10-1991 rejected the application of the Petitioner with the observations that as at one place registration No. of the Truck has been shown as 3002 and there is interpolation, erasure and change in the engine and chassis number of Truck, and it would be required in the same condition as it stands, therefore, there was no question to release the Truck in favour of Petitioner. Against the order of the Chief Judical Magistrate revision was filed which met the same fate. Hence present petition has been filed

Learned Counsel for the Petitioner urged that in view of the provisions of Section 451 of the Code of Criminal Procedure (for short the Code), it is obvious that the Court has jurisdiction to pass an order for release of the vehicle, if it thinks fit for the proper custody of such property, pending conclusion of enquiry or trial. Reliance was placed on Jagat Singh v. State of U.P. 1991 ACR 561, Amarjeet Singh v. State of U.P. 1984 ACR 132 & Aniruddh Rai v. State of U.P. 1991 ACR 81.

Having heard learned Counsel for the Petitioner I am of the view that petition is devoid of merits. Section 451 empowers the Criminal Court to pass an order as it deems fit for the proper custody of such property pending conclusion of enquiry or trial, therefore, it is discretion of the Court to pass appropriate orders in cases for the custody of the case property pending enquiry or trial, in the present case very serious offences punishable under Sections 302/364/407/467/468/420/379/411 IPC are involved and it is obvious that there as interpolation in registration number, engine number and chassis number of the Truck in question under these circumstances Chief Judicial Magistrate was justified in not releasing the Truck in favour of the Petitioner.

As regards for of relied cases by the learned Counsel Petitioner. Aniruddh Rai U.P. State>1991 ACR 81, was a case where Car was lying at Police Station for more than 8 months and matter was pertaining to ownership of the car therefore, it was released. It is to be noticed that in that case offence u/s 420/467 IPC was not involved hence that case was besides the point.

Jagat Singh v. State of U.P. 1991 ACR 561, was a case u/s 60 U.P. Excise Act and the offence u/s 60 of U.P. Excise Act was not so serious as compared to the offence involved in the present case under Sections 302/420 etc. of IPC hence that was a case based on different facts. Similarly Amarjeet Singh v. State of U.P 1984 ACR 132, was also a case on different facts as in that case also no offence under Sections 302/420/467 IPC was involved.

Courts below have rightly relied upon Sarju Prasad v. State of U.P. 1990 ALJ 30, where this Court has made observations that if a vehicle is involved in a serious offence, the same cannot be released in favour of the owner as the same may be required to be produced before the court in trial in same condition, consequently this Court ruled in that case that the order for release of such vehicle need not be passed.

It is to be noticed that Section 451 enables the court to pass an order in appropriate case for interim custody of the property pending conclusion of enquiry or trial. Section 452 on the other hand provides for disposal after enquiry or trial is over. Both these sections deal with cases which have actually come up before the Court in enquiry or trial. It is the direction of the Court, in accordance with which order has to be passed Discretion has been derived from Latin word Discretio. The Maxim Discretio Est Discernere Per Legim Quid Sit Justuce, connotes that discretion consists in knowing what is just in law. Discretion vested in judges by statute or at common law must be exercised judicially or in Scot''s phrases used by Lord Emslie in Smith v. Middletoss 1972 AC 30, not arbitrarily or idiosyncratically ,for otherwise right of parties to litigation would depend on judicial whim. (See Lord Diplock in Cookson v. Knowles 1979 AC 556

Discretion, in other words, means according to rules of reason or justice, not according to private opinion, not arbitrary, vague or fanciful but legal and regular, not capriciously.

(See Maxwell''s Interpretation of Statutes 10th Edition page 123).

Under the circumstances of the case as the offence u/s 302 read with Section 420 IPC etc. was a serious offence where allegations of interpolation in chassis No. etc. were made, hence I am of the view that discretion in rejecting Petitioner''s application for release of vehicle has correctly been exercised. The impugned orders are perfectly correct, there is no ground for interference under Article 226 and petition is dismissed.