P. Abdul Wahab vs The State of Tamil Nadu

Arumugham, J.—Heard. This revision is filed challenging the propriety and legality of the order passed by learned Judicial Magistrate No. 3,

Thanjavur dated 3.7.1995 returning a unnumbered petition filed by the petitioner u/s 451 of the Code of Criminal Procedure, praying for the return

of the vehicle-lorry bearing registration mark AP.02fT.0999.

The petitioner by name Abdul Wahab is said to be the owner of the vehicle in question. It is stated that when the vehicle was returned after

making delivery of the goods in transit, within the jurisdiction of the respondent, the agent of the petitioner was attacked by the driver and cleaner

of the lorry and the occurrence had taken place in the cabin of the lorry itself due to which, the said agent succumbed to injuries and that therefore,

a case u/s 302, Indian Penal Code has been registered and is being investigated. The vehicle in question was also seized by the respondent police

as a part of investigation. It is further stated that considerable amount of cash was recovered from one of the accused, viz., the cleaner of the said

lorry. The other accused viz., the driver of the vehicle is still eluding away and he is yet to be secured. In this context, a petition u/s 451 of the

Code of Criminal Procedure was filed before the learned Judicial Magistrate by the petitioner for the return of the lorry, but, however, the same

was rejected on the objection made by the respondent herein. The revision preferred against that order also met with the same fate. Thereafter, on

3.7.1995, after a lapse of six months, since the lorry was found in the custody of the respondent, lying idle, being the owner of the vehicle, the

petitioner filed another petition; which was returned by learned Magistrate on 3.7.1995 itself on the ground that since the petition filed already u/s

451 of the Code of Criminal Procedure was disposed of and the revision preferred against the order passed in that petition had already been

dismissed, the present application was also not maintainable. This order is challenged in this revision.

In the context of abovesaid position, I have no hesitation to hold that there cannot be any estoppel for a person who is totally not connected

with any crime to file a petition u/s 451 of the Code of Criminal Procedure for the return of the vehicle in question, even though it is stated to be

involved in a murder case. Section 451 of the Code of Criminal Procedure does not contemplate any of such embarge to a third party stranger,

who is the lawful owner of the vehicle in question, what is incumbent on a Court of law to followed under this section is to see whether it is

justifiable to entrust the temporary custody of the property involved in a crime or not. In other words to say, even if the custody of the property

produced in a Court is entrusted with a third party, that custody in law is deemed to be the custody of the Court and therefore, this basic principle

should be borne in mind by every Court. If this matter is viewed in this angle, it is quite obvious to say that the impugned order is highly

incompetent and cannot at all be sustained in law and therefore, it is liable to be interfered with.

The other grievance expressed by learned Government, Advocate on behalf of the Investigating Officer is that since the occurrence is said to

have taken place within the cabin, near the driver seat of the lorry by the driver and the cleaner, involving a grave crime, if the custody of the

vehicle is handed over to the petitioner, then there is possibility of obliterating material object which are highly required for the purpose of proving

the guilt of the accused by the prosecution and to this extent, the prosecution will be put in jeopardy. The Bar- for the revision petitioner has

expressed his desire to given an undertaking to the extent that he will not change the physical structure design and the present status and conditions

of the lorry in question and any part thereof, including cabin, but, however maintain the same in good condition and produce it whenever he is

required to do so and for the compliance of the said direction, he will undertake to produce the registration certificate and also the bank guarantee

or such other conditions that are deemed to be necessary to the value of the said lorry with necessary conditions to be imposed by the Court of

law. I do not propose, at this stage, to go into the depth of this contention for the reason that we are not aware of the genuineness and the validity

of the bank guarantee or the registration certificate and so on and even if it is produced, it must be to the satisfaction of the learned Judicial

Magistrate for the reason that the case is still being investigated. For the said reason, the ends of justice will require me to remit the whole matter to

the file of learned Judicial Magistrate No. III, Thanjavur for fresh consideration and entertaining the petition u/s 451 of the Code of Criminal

Procedure and disposing of the same after giving opportunity to both the sides, in the light of the observation made above within six weeks from

the date of receipt of the order, in accordance with the law. If he is satisfied, learned Magistrate may return the vehicle in question for temporary

custody by imposing appropriate and suitable conditions.

With the consent of the Bar for the revision petitioner and learned Government Advocate on behalf of the respondent, the revision itself is

disposed of and accordingly, the revision is allowed with the above directions. In view of the above order, Crl. M.P. No. 2972 of 1992 has

become unnecessary and no order need be passed thereon.