V. Ashok vs Housing Development Finance Corp. Bank Ltd. and Another

M. Venugopal, J.—The Petitioner/Respondent has focussed the instant Criminal Revision Petition as against the order dated 13.11.2010

Crl. M.P. No. 4504 of 2010 in R.P.R. No. 43 of 2010 in C.C. No. 99 of 2010 passed by the Learned Judicial Magistrate No. 1, Nagercoil. The

Learned Judicial Magistrate No. 1, Nagercoil, while passing the impugned order in Crl. M.P. No. 4504 of 2010 in R.P.R. No. 43 of 2010 in C.C.

No. 99 of 2010, has among other things observed that the Tractor bearing Registration No. TN 74 P 2734 can be handed over temporarily to the

H.D.F.C. Bank (Hypothecator), with whom, it has been hypothecated subjected to conditions, resultantly, allowed the said petition imposing 5

conditions therein.

Feeling aggrieved against the order dated 13.11.2010 made in Crl. M.P. No. 4504 of 2010 in R.P.R. No. 43 of 2010 in C.C. No. 99 of 2010

passed by the Learned Judicial Magistrate No. 1, Nagercoil, the Petitioner/Owner of the Tractor has projected this Criminal Revision Petition

before this Court, as an aggrieved person.

The Learned counsel for the Revision Petitioner urges before this Court that the Trial Court has passed the impugned order in Crl. M.P. No.

4504 of 2010 in C.C. No. 99 of 2010 on 13.11.2010, against the weight of evidence and probability of the case.

The main contention advanced on behalf of the Petitioner is that the Petitioner is the Owner of the Tractor bearing Registration No. TN 74 P

2734. Earlier, he has filed a petition in Cr. M.P. No. 1374 of 2010, to hand over the vehicle to him and the Trial Court has passed a favourable

order in his favour on 08.04.2010.

Expatiating his submission, the Learned counsel for the Petitioner strenuously contends that when the petitioner''s earlier Cr. M.P. No. 1374 of

2010 (for return of vehicle to him) has already been allowed by the Trial Court as early as on 08.04.2010, then, it is not permissible for the

Learned Judicial Magistrate No. 1, Nagercoil, to pass another order in regard to the hand over of the Tractor in question to the first

Respondent/Hypothecator (Bank) based on the application projected by it.

According to the Learned counsel for the Petitioner (Owner of the vehicle), the Learned Judicial Magistrate No. 1, Nagercoil, has not followed

the Honourable Supreme Court judgment in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, wherein, it is observed that a

Court of Law has to pass orders as regards to the property pending trial and in this regard, the power of the Trial Court are wide and should be

exercised judicially and expeditiously.

More specifically, the Learned counsel for the Petitioner draws the attention of this Court to the decision of Honourable Apex Court in

Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, wherein, at para 18, it is observed and held as under:

In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a 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 or a third person. If the 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.

Finally, the Learned counsel for the Petitioner contends that the Learned Judicial Magistrate No. 1, Nagercoil, passed an invalid order in Cr.

M.P. No. 4504 of 2010 in C.C. No. 99 of 2010 dated 13.11.2010, which needs to be set aside by this Court sitting in revisional jurisdiction at

this point of time to promote substantial cause of justice.

A perusal of the typed set of papers shows that in Cr. M.P. No. 1374 of 2010 on 08.04.2010, the Trial Court has passed a conditional order

in favour of the Revision Petitioner as regards to the handing over of the Tractor bearing Registration No. TN 74 P 2734. In this connection, this

Court pertinently points out that even though the Trial Court has passed favourable order in favour of the Revision Petitioner in Cr. M.P. No. 1374

of 2010 on 08.04.2010 in regard to the handover of the Tractor in question, of course subject to certain conditions, yet the said order has not

been made use of or utilised by the Revision Petitioner to his best advantage, in the manner known to law and in accordance with law.

Subsequently, the first respondent/Bank (Hypothecator of the Tractor in question) has moved Cr. M.P. No. 4504 of 2010 praying for passing

of an order by the Trial Court to hand over the Tractor to it as an interim custody pending disposal of the main case. The Trial Court, on

13.11.2010, has ordered for the return of the Tractor bearing Registration No. TN 74 P 2734 after imposing certain restrictions.

It cannot be gainsaid that in C.C. No. 99 of 2010 on the file of the Learned Judicial Magistrate No. 1, Nagercoil on 26.10.2010, when the

case has come up for hearing, the matter was posted for examination of L.Ws. 4 and 6. Therefore, it is quiet clear that the Trial has commenced in

the main C.C. No. 99 of 2010. At this juncture, the Learned Government Advocate (criminal side) appearing for the second Respondent informs

this Court that totally in the main case, there are 9 witnesses and since the matter is at the part heard stage, it is just and proper that the Trial Court

can proceed with the examination of witnesses and also to show progress in regard to the hearing of the main case.

This Court aptly point out that Section 451 of Cr.P.C. deals with passing of an order by a Court of Law for custody and disposal of the

property pending trial in certain cases. It is to be remembered that after disposal of the property u/s 451 of Cr.P.C., it is essential that the property

ought to be under the control of the Learned Judicial Magistrate. There is no two opinions of the fact that the Owner of the vehicle i.e. the

Petitioner is entitled to get back the vehicle after trial in the same condition when it was seized. During the stage of investigation, a Court of Law is

not competent to pass orders either u/s 451 of Cr.P.C. or u/s 457 of Cr.P.C. or under both during the pendency of trial or enquiry.

The aim of the Criminal Procedure Code is that where the property, which is subject matter of an offence, is seized by the police, then it ought

not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary.

A reading of Section 451 r/w. Explanation unerringly point out that it is not only as regards the property relating to an offence appears to have

been committed or which appears to have been used for the commission of the offence that the Court is enjoined to make an order for custody

and disposal of property pending trial, but even in regard to the property produced before the Court, it is competent to pass such an order.

At this stage, this Court worth recalls the decision of Honourable Supreme Court in Smt. Basava Kom Dyamogouda Patil Vs. State of Mysore

and Another, whereby and whereunder, it is held thus:

A production before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the Court by

passing an order regarding the custody of the articles. Where the Magistrate, after having been informed that the articles have been produced

before the Court directs the Sub-Inspector to keep them with him and valued by a goldsmith, the articles are undoubtedly produced before the

Court and become custodia legis.

It is needless for this Court to point out that it would be proper if the property is ordered to be returned to the person so to say atleast a prima

facie one as per decision Mevaldas Takhatmal Lekhawani Vs. State of Maharashtra and another, and also while disposing of the property, reasons

will have to be adduced by the competent Court for adopting a certain mode of disposal, in the considered opinion of this Court.

No wonder the proceeding relating to the disposal of the property under the Code of Criminal Procedure is not a criminal case, in the realm of

proceedings akin to civil proceedings. When respective parties have projected their rival stands, each one of them asserting his/her claim and led

evidence and placed all appropriate and relevant facts before the concerned Court, then only, a decision remains to be rendered as to the inference

to be drawn from the established facts and circumstances in a given case.

Be that as it may, in the present case on hand, the Revision Petitioner (Owner of the vehicle) has projected Cr. M.P. No. 1374 of 2010 at the

earliest point of time for obtaining the custody of the Tractor in issue and got a favourable order from the Trial Court as stated supra.

Subsequently, the first respondent/HDFC Bank (Hypothecator) has also filed Cr. M.P. No. 4504 of 2010 in regard to the interim custody of the

Tractor and also got a favourable order. At this point of time, the Learned counsel for the Petitioner brings it to the notice of this Court that the first

respondent/Bank (hypothecator) has also not availed the opportunity of utilising the favourable order in regard to the interim custody of Tractor

which it obtained from the Trial Court. In substance, both the Petitioner (Owner of the Tractor) and the first Respondent/Bank (Hypothecator of

the vehicle) are in the same boat. One cannot brush aside the important fact that before the Trial Court the examination of witnesses have begun

and admittedly during the hearing on 26.10.2012, his case was posted for examination of L.W. Nos. 4 and 6. As such, the main case before the

Trial Court was in part heard stage. Taking note of the fact that totally there are 9 prosecution witnesses and also bearing in mind the essential fact

that the trial has commenced in the main case and some witnesses have been examined, at this point of time, it is not proper for this Court to stall

the conduct of trial of the main proceedings in C.C. No. 99 of 2010 in Equity and on Fair play, this court fervently opines that the trial court, which

is custodia legis of the tractor in question, can pass an order at the time of conclusion of the trial in regard to the disposal of property viz., the

tractor bearing Registration No. TN P 2734.

Viewed in that perspective, the Criminal Revision Petition is devoid of merits and it fails. However, this Court based on the overall assessment

of the facts and circumstances of the case which float on the surface directs the Trial Court to pass appropriate orders as per Section 452 of the

Cr.P.C. in regard to the disposal of the property at the conclusion of Trial in C.C. No. 99 of 2010. As such, this Court grants liberty to respective

parties to raise all factual and legal pleas in regard to the disposal of the property viz., the Tractor in issued and the Trial Court is directed to

provide adequate opportunity to both parties while hearing the main case completely and comprehensively and after hearing respective contentions

and objections, it is directed to pass appropriate order in accordance with law and in the manner known to law.

It is made clear that the Trial Court is to pass orders as to the disposal of property viz., the Tractor bearing Registration No. TN 74 P 2734, at

the conclusion of Trial in C.C. No. 99 of 2010 on its file in a dispassionate manner uninfluenced with any of the observations made by this Court in

this Revision. Since the matter is at part Heard stage, the Trial Court is directed to dispose of the main C.C. No. 99 of 2010 within a period of one

month from the date of receipt of a copy of this order. The parties are directed to offer their unstinted co-operation and also they are to lend their

helping hand in regard to the completion of proceedings in C.C. No. 99 of 2010. In the result, the Criminal Revision Petition is disposed of.