Praveen vs State of M.P. and Others

S.C. Vyas, J.

This order shall also govern disposal of M.Cr.C. No. 3561 of 05, as both the aforesaid petitions have arise out of the common order.

Petitioner has impugned the order dated 28.7.05 passed by IIIrd Addl. Sessions Judge, Khargone in Cri. Revision No.94 of 05 whereby the said revision filed by petitioner herein, has been dismissed, whereas he allowed the Cri. Revision No. 102 of 05 filed by accused respondent no.2 Jakir herein.

Brief facts for deciding these petitions are that Cri. Case No. 195 of 05 pending in the Court of J.M.F.C. Bheekangaon, Certain properties were seized by Police in connection with offence No.367 of 05 for commission of offence under S.379 of the Penal Code against respondent no.2 herein and ors. The present petitioner and accused respondent no.2 Jakir had filed separate applications under S. 451 of Cr.P.C. for interim custody of the seized property before the Trial Magistrate, Bheekangaon, who in turn rejected both the applications. The said order of rejection was challenged by petitioner and respondent accused Jakir by filing Cri. Revisions No. 94 of 05 and 102 of 05, which have been decided by learned Addl. Sessions Judge vide impugned order.

The alleged properties seized by Investigating Officer were one Crushing machine; one Leyland engine; one Harper and other implements etc. According to the claim of present petitioner, the said proprieties were sold by respondent accused Jakir to him for an amount of Rs.2.00 lakhs and the cost of the same were paid in cash and a sale deed was executed in favour of the petitioner and possession of the aforesaid properties (articles) were handed over to him. Ever since, then, the alleged properties were in possession of the petitioner and were put to use.

According to the FIR lodged by petitioner at Police Station Bhikangaon, respondent Jakir, co accused Nasir and Peer Mohammad committed theft of the said Crusher machine, Leyland engine and other implements and kept them in the field of one Kansingh. On the basis of the said FIR, and offence under S. 379 of the Penal Code was registered and the said properties were seized by the Police and after completion of investigation, a charge sheet was filed against accused respondent Jakir and ors. in the Court of JMFC. Bhikangaon.

In the Trial Court petitioner and respondent accused Jakir have submitted their rival claims for interim custody of the said seized articles. The Trial Magistrate has dismissed their petitions. They preferred the revisions and learned A.S. J. vide its impugned order accepted the claim of respondent accused Jakir and directed the Trial Court to handover those seized properties on certain conditions contained in the impugned order.

After hearing counsel for both the parties and after perusal of the record and considering the submissions advanced by learned counsel, the impugned order deserves to be quashed for the reasons mentioned herein below.

S. 451 of Cr.P.C. provides that:

When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

The said provision gives a wide discretion to the Trial Magistrate for passing appropriate orders which he thinks fit for proper custody of such property, but, such discretion is required to be exercised expeditiously and judiciously and not merely on the whims, particularly, when such property is vehicle and such vehicle is meant for running or machines which are meant for the purpose operation, then, normally such properties should be given to a person who prima facie appears to be a rightful claimant for having their interim custody during pendency of the trial so that such properties can be preserved and can be used and may not be wasted. In this regard Apex Court has issued certain direction reported in the matter of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, and those directions are required to be followed by Criminal Courts where valuable articles, currency notes, vehicles or such other properties are produced during pendency of trial.

In the present case, Addl. Sessions Judge while considering the rival claims of present petitioner and respondent accused Jakir took into consideration the sale deed executed by respondent accused Jakir in favour of petitioner and disbelieved the said sale deed only on the ground that the Crusher Machine was purchased by petitioner for Rs.55,000/- whereas, petitioner had paid Rs. 2.00 lakhs for the same, therefore, prima facie the learned Addl. Sessions Judge held the alleged sale deed doubtful and since the Crusher Machine stand in the name of respondent No. 2 in the original papers, therefore, he presumed him to be the registered owner of the alleged property and found him to be a proper claimant for having interim custody of the same.

In my view the learned Addl. Sessions Judge has adopted wrong line of thinking and had overlooked certain important facts which are apparent on the face of record itself. A copy of sale deed dated 29.6.04 shows that not only the Crusher machine but alongwith it one Harper, Engine and other implements were also sold to the petitioner. The seizure memo dated 20.11.04 also shows that Crusher machine valuing Rs.40,000/-; one Engine of Ley land truck valuing Rs. 1.50 lacs were also seized from the field of one Kansingh. The said Kansingh also stated on oath that Crusher machine, Engine and other implements were sold by respondent no.2 Jakir to the present petitioner. The aforesaid documents clearly shows prima facie that price of all the properties were not unreasonable and almost equivalent valuation was made by I.O. in the seizure memo. And above all witness Kansingh has stated in clear words that the said Machine alongwith engine and other implements were sold by respondent No.2 to the present petitioner and were handed over to him. Later on, respondent no.2 and other accused persons brought the alleged properties to his field and kept there and were seized in presence of this witness.

The learned Addl. Sessions Judge did not consider the aforesaid documents in its right perspective and it resulted in wrong line of thinking, which ultimately vitiated the order passed in favour of respondent no.2.

In the result the impugned order dated 28.7.05 is hereby quashed and set aside. The matter is remitted back to the Trial Magistrate for deciding the matter afresh. The petitioner is directed to file an application within 30 days hereof before the Trial Court for interim custody of the alleged properties. On such application being filed by petitioner, the Trial Court shall pass an appropriate order in favour of present petitioner for interim custody of the alleged properties on usual conditions.

With the aforesaid directions, both petitions stand disposed of.