Vishal Kaushal vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for reliefs:-

"It is, therefore, respectfully prayed that this Petition may very kindly be allowed; and interlocutory Order dated 29th February, 2020 passed by the Court of learned Judicial Magistrate First Class, Rajgarh, District Sirmaur, Himachal Pradeshh in Cr.M.A. No. 29/4 of 2020 titled as "Vishal Kaushal vs. State of Himachal Pradesh" may very kindly be set aside. Consequently, the interim custody of vehicle in question i.e. Tata Tarala 12 tier bearing registration No. HP-69-6095 may very kindly be ordered in favour of the petitioner, in the interest of justice.

Any other or further orders as may be deemed just and proper by this Hon'ble Court, may also be passed in favour of the petitioner."

Brief facts necessary for the adjudication of the present petition are as under:-

An FIR i.e. FIR No. 90 of 2019, dated 22.10.2019, under Section 379 read with Section 34 of the Indian Penal Code stands registered at Police Station Pachhad. A vehicle "Tata Trala" 12 tier, having registration No. HP69A-6095, which belongs to the present petitioner, has been taken into possession by the Police of Police Station Pachhad in connection with said FIR. An application was filed by the present petitioner before the Court of learned Judicial Magistrate 1st Class, Rajgarh, District Sirmaur, H.P. under Section 457 of the Code of Criminal Procedure, praying for release of said vehicle, which stands dismissed by learned Court below vide order dated 29.02.2020.

The prayer of the petitioner before the learned Trial Court was that as the investigation in the case was complete and the vehicle in issue was no more required by the Police, the same be released as no fruitful purpose was to be served by keeping the vehicle in police custody.

The application so filed by the petitioner has been rejected by the learned Trial Court inter alia on the ground that there were reasonable grounds with the police/ prosecution that in the event of Truck being released, it would impact the investigation as the Truck was being used for the alleged commission of the offence and further two other co-accused were yet to be arrested.

Mr. Anshul Bansal, learned Counsel for the petitioner has argued that the order passed by the learned Court below was not sustainable in law as learned Court erred in not appreciating that arrest of other two co-accused had nothing to do with the release of the Truck in question under Section 457 of the Code of Criminal Procedure. He has further argued that learned Court has also erred in not appreciating that vehicle in issue stood purchased by the present petitioner in the month of March, 2019, by raising a loan of about 28.00 Lac, and approximately, an amount of 71,000/- was to be paid as monthly installment of the loan and the petitioner would not be in a position to pay the installments in case the vehicle was not released to him. Learned Counsel has further argued that the vehicle is lying idle and is being exposed to sun and rains and its condition would deteriorate and therefore also, its interim custody deserves to be granted to the petitioner and this important aspect of the matter has not been taken into consideration by the learned Trial Court while denying the custody of the vehicle to the petitioner. He submits that the vehicle in question be released in favour of the petitioner by imposing such conditions as the Court deems fit and proper and the petitioner undertakes to abide by all the terms and conditions, which will be imposed while releasing the vehicle.

Ms. Divya Sood, learned Deputy Advocate General has opposed the application inter alia on the ground that in the event of release of the vehicle, there is a possibility that the petitioner may alienate, alter the nature, change the colour of the vehicle or its identity and may thus hinder the trial. She has further argued that as other co-accused were yet to be arrested in the matter, their arrest would also be hampered in case the vehicle is released to the petitoner. She further submits that the order passed by learned Trial Court does not suffers from any perversity and illegality. Accordingly, she prays that this petition be dismissed.

I have heard learned Counsel for the petitioner as well as learned Deputy Advocate General and gone through the order passed by learned Court below and the status report which has been filed by the State.

It is not in dispute that, as of now, investigation stands completed in the matter and the vehicle in issue is idly parked, though in police custody. As far as the non-arrest of two other co-accused is concerned, in my considered view, the release or non-release of vehicle has got nothing to do with it as this Court fails to understand as to what role a Truck would play in the matter of arrest of co-accused.

Section 457 of the Code of Criminal Procedure provides as under:-

"457. Procedure by police upon seizure of property.--(1) Whenever the seizure of property by any police office is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

In this case, it is not in dispute that the vehicle in issue is owned by the petitioner. The apprehensions raised by the State can be taken care of by imposing stringent conditions upon the petitioner and by further ordering that the Magistrate concerned shall release the vehicle only if bondis furnished by the petitioner to the effect that he shall comply with the conditions which stand imposed upon him. In addition, this Court is of the view that detention of the vehicle is not going to serve any fruitful purpose and it concurs with the arguments made by learned Counsel for the petitioner that condition of the vehicle would deteriorate as a result of the vehicle lying idle and it being exposed to sun and rain.

Coming to the order which has been passed by learned Trial Court, this Court is of the view that the application for release of the vehicle has been dismissed by the learned Court below vide order dated 29.02.2020 in a cursory manner. All that has weighed in the mind of the learned Court below while dismissing the application is the fact that there was merit in the apprehension of the police that the Truck, if released, would impact the investigation as the Truck was used for alleged commission of the offence. Nothing is mentioned in the order as to how the release of Truck would have had affected the investigation, which otherwise was complete, and what role the Truck was to play as far as the arrest of other co-accused was concerned. The impugned order, therefore, indeed is not sustainable in law.

Accordingly, this petition is allowed. Order dated 29.02.2020 passed by learned Judicial Magistrate 1st Class, Rajgarh, District Sirmaur, H.P. is quashed and set aside and the vehicle in question, i.e. Truck (Trala) bearing registration No. HP-69A-6095 is ordered to be released in favour of the present petitioner on sapurdari, in case the same is not required in any other case, on his furnishing sapurdari bond equal to the value of the vehicle, with one surety in the like amount to the satisfaction of the learned Trial Court, subject however to the following conditions:-

(i) A photograph of the Truck in question shall be taken by the police before its release, which shall be countersigned by the petitioner.

(ii) The petitioner shall undertake to produce the vehicle before the Police or the Trial Court as and when directed to do so.

(iii) The petitioner, his agent or any person on his behalf shall not alienate, change the nature, colour, identity of the vehicle, in any manner whatsoever or dispose of the vehicle till disposal of the criminal case before the Trial Court.

Learned Trial Court is directed to issue release order of the vehicle in question upon the petitioner filing an application for furnishing sapurdari and surety bonds, as directed by this Court, in accordance with law.