Devaji vs State

S.C. Vyas, J.

This is a petition filed u/s. 482 of Cr.P.C. for quashing the order passed by Additional Sessions Judge, Dhar in criminal revision no. 51/ 2006 on date 24.04.06, wherein temporary custody of the vehicle was refused to the present petitioner.

Two persons Dharmedra and Pratap are facing the prosecution for offences punishable u/s. 294,323,506 read with S. 34 of IPC and 3 (1) (10) of S.C.S.T. Act before Special Judge and First Additional Sessions Judge, Dhar. One motorcycle was seized by the concerning police in that case during investigation. The present petitioner made an application for temporary custody of that motorcycle on the ground that he is the registered owner of that motorcycle but the application was rejected by learned Additional Sessions Judge mainly on the ground that as per the provisions of S. 7(1) and 7(2) of the S.C.S.T. Act, if any property is seized during investigation then Court may recover the amount of fine, ultimately, imposed on the accused persons by auctioning that property and may also even confiscating that property.

Learned counsel for the petitioner submitted that present petitioner is the registered owner of the vehicle. He has further submitted that petitioner is not an accused in this case and the provisions of S. 7 of the S.C.S.T. Act are relating to the property of the accused persons and not regarding the property of a third person which was seized by the police during investigation.

Learned public prosecutor also concedes that present petitioner is the registered owner of the vehicle MP 11 C-7913 and as per the material collected during investigation, this vehicle was given to the accused of the case by the present petitioner, as they wanted to go somewhere. Out of the two accused persons one is the son of the present petitioner.

The provisions of S. 7 of S.C.S.T, Act 1989, are reproduced as under; "Forfeiture of property of certain persons: (1) Where a person has been convicted of any offence punishable under this Chapter, the Special Court may, in addition to awarding any punishment, by order in writing, declare that any property, movable or immovable or both, belonging to the person, which has been used for the commission of that offence, shall stands forfeited to Government." (2) Where any person is accused of any offence under this Chapter, it shall be open to the Special Court trying him to pass an order that all or any of the properties, movable or immovable or both, belonging to him, shall during the period of such trial, be attached, and where such trial ends in conviction, the property so attached shall be liable to forfeiture to the extent it is required for the purpose of realisation of any fine imposed under this Chapter.

The provisions shows that S. 7 comes into effect only when someone is held guilty of the offence punishable under the provisions of the act at the time of holding a person guilty of the offence. Special Court can also pass an order of confiscation of his property. Sub-Section 2 of Sub-Section 7 also provides that any property which was seized during investigation of the case can be sold for the purpose of recovery of fine. It can very well be said that the actions as provided by S. 7(1) and (2) of the Act are required to be taken at the time of conclusion of the trial and not at the beginning of the trial.

It is now well settled that as and when any motor vehicle is seized in any case then such vehicle should be given on temporary custody either to its registered owner or to some other suitable person or even to the insurance company so that it can be saved from being rusted. It is a matter of common knowledge that when a vehicle is kept in stationery condition then it becomes rusted. Its tyres and tubes becomes totally spoiled and its machinery also becomes useless by lapse of time and this all is a national wastage, therefore, such vehicles which are meant for moving on road should not be kept in stationery condition unnecessarily during pendency of a trial. Learned Special Judge has not considered this aspect of the matter in the impugned order and has refused temporary custody only on a ground which is not available at the beginning of the trial. The order which has been passed by learned Additional Sessions Judge is to the prejudice of the present petitioner and will simply causes damages to the seized vehicle and therefore it amounts to injustice.

Resultantly, in the interest of justice the petition is allowed and the impugned order passed by learned Additional Sessions Judge is set aside and the matter is sent back to him with a direction to pass an order for temporary custody in favour of the present petitioner who is registered owner of the vehicle on suitable conditions. The petitioner is directed to appear before learned Special Judge on 05.09.06. Copy of this order be sent to learned Special Judge.