Zahir Uddin vs State of U.P.& Ors.

N. B. Asthana, J.—Hero Honda Motorcycle bearing Registration No. U. P. B.0038 was stolen by one Vinod Dehariya. The fiirst information report in this connection was lodged on 2241993. Some time thereafter Vinod Dahariya was arrested from Kanpur. The Hero Honda Motorcycle was recovered from his possession. After the recovery of Motorcycle the petitioner moved an application before the trial court, namely, Judicial Magistrate, II, Jhansi for giving the aforesaid Motorcycle in his custody pending the final decision of the case. The trial court rejected this application on the ground that it was a case property in Criminal Case No. 22 of 93 under Section 419/420/504/506/147 I.P.C. and would be required to be produced at the time of evidence, the petitioner thereafter filed a revision before the Sessions Judge, Jhansi, stating that since Vinod Dahariya from whose possession the Motorcycle was recovered has been convicted, he is entitled to get back the vehicle. The learned Sessions Judge, Jhansi per order dated 2011994 rejected the revision of the petitioner on the ground that since another Hero Honda Motorcycle bearing registration No. U. P. 93B/3467 is in the possession of the petitioner''s brother, Karimuddin, this Motorcycle can be given to the petitioner only when Motorcycle No. U.P. 93B/3467 is restored to respondent No. 2 Smt. Indrani.

Vinod Dahariya is the son of Smt. Indrani. Her contention was that after the theft of the Motorcycle in question by Vinod. She got motorcycle No. U.P. 93B/3467 purchased in the name of Karimuddin, brother of the petitioner, and, therefore, the petitioner is not entitled to get back the Motorcycle in question unless his brother returns the Motorcycle No. U.P. 93B/3467.

It has been rightly contended that on the reasoning given by the Sessions Judge, while disposing of the revision application, the revision could not have been dismissed. If the opposite party No. 2 wanted to claim back motorcycle No. U. P. 93B/3467 then her remedy was to file a civil suit or to take recourse to other proceedings. The revision could not have been dismissed on the ground that the petitioner''s brother failed to restore the motorcycle No. U.P. 93B/3467 to respondent No. 2.

The revisional court committed a patent error in dismissing the revision solely on that ground. The revisional court should have examined as to whether in the facts and circumstantes it is fit case in which the motorcycle in question should be restored to the petitioner who is admittedly its registered owner. It ought to have examined the question of return of the motorcycle also from the point as to whether the motorcycle in question is a case property, whether its production was necessary at the time of trial and whether the order of the trial court rejecting the application on the ground stated in the order was valid. Without going into the relevant points for determination in the revision, the revisional court wrongly dismissed the revision on the sole ground that till motorcycle No U.P. 93B/3467 was returned to the respondent No. 2, the petitioner was not entitled to claim the custody of Hero Honda Motorcycle No. U P. B0038. The writ petition is, therefore, to be allowed.

The writ petition is allowed. The order dated 2011994 passed by the learned Sessions Judge, Jhansi in Criminal Revision No. 191 of 1993 is quashed and set aside. The matter is remanded back to learned Sessions Judge, Jhansi, who would decide Criminal Revision No. 191 of 1993 Zahiruddin v. State of U.P., in accordance with law and in the light of the observations made in the body the judgment.

''Petition allowed.