Rajesh Yadav Vs State of U.P. and 2 Others

Neutral Citation No. - 2025:AHC:14907

Court No. - 71

Case :- APPLICATION U/S 482 No. - 32206 of 2024

Applicant :- Rajesh Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Vivek Kumar Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Vivek Kumar Tiwari, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application under section 482 Cr.P.C. has been filed by asccused-applicant Rajesh Yadav, with the following prayer:

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the order dated 31.08.2024 passed by Sessions Judge, Ramabai Nagar (Kanput Dehat) in Criminal Misc. Case No. 415 of 2024 (Rajesh Yadav Vs. State of U.P.) arising out of Case Crime No. 310 of 2023, under Sections 302/34, 120-B IPC, Police Station-Shivrajpur, District Kanpur Nagar.

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It is further prayed that this Hon'ble Court may graciously be pleased to direct the opposite party No. 2 to release the vehicle Wagon-R No. U.P. 78 E.U.-8151 in favour of applicant within stipulated period and/ or may pass such other and further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

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Record shows that in respect of an incident, which is alleged to have occurred on 07.11.2023, a belated F.I.R. dated 08.11.2023 was lodged by first informant/opposite party-3 Shiv Pratap Singh and was registered as Case Crime No. 0310 of 2023, under Section 307 IPC, Police Station-Shivrajpur, District-Kanpur Nagar. In the aforesaid FIR, three persons namely, (1) Ranjeet Yadav, (2) Rajesh Yadav and (3) Sonu Yadav have been nominated as named accused, whereas the associates of named accused have also been arraigned as accused.

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After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, Investigating Officer gathered information that the vehicle bearing Registration No. UP 78 EU

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8151 Wagon R was used in the commission of crime in question. Accordingly, Investigating Officer seized the same.

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Applicant filed a release application in terms of Sections 451/457 Cr.P.C. before the District and Sessions Judge, Kanpur Dehat seeking release of the disputed vehicle bearing Registration No. UP 78 EU 8151 Wagon R. Copy of the same is on record as Annexure-5 to the affidavit filed in support of present application. Same was registered as Misc. Case No. 415 of 2024 (Rajesh Yadav Vs. State of U.P.).

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Court concerned i.e. the Sessions Judge, Ramabai Nagar, Kanpur Dehat considered the aforementioned release application filed by applicant in the light of the case diary. Having undertaken the aforesaid exercise, Court below observed that the disputed vehicle was used in the commission of crime, which fact is evident from GD No. 78 and further the said vehicle was seized by the Investigating Officer on 19.11.2023 as is evident from GD No. 41. The Sessions Judge further observed that since aforesaid vehicle was used in the commission of a heinous offence and furthermore, the entire prosecution evidence has not yet been recorded, therefore, no good ground exists to release the disputed vehicle. Accordingly, the release application filed by applicant was rejected by an order dated 31.08.2024 passed by the Sessions Judge, Ramabai Nagar (Kanpur Dehat).

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Thus feeling aggrieved by the above order dated 31.08.2024, applicant, who is the registered owner of disputed vehicle i.e. UP 78 EU 8151 Wagon R, has now approached this Court by means of present application under section 482 Cr.P.C.

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Learned counsel for applicant submits that applicant is a named accused. From perusal of the impugned order passed by Sessions Judge, it appears that the trial has commenced and the case is at the stage of prosecution evidence. He, therefore, contends that aforesaid stage could have arrived only after the submission of the charge sheet/police report in terms of Section 173(2) Cr.P.C. by the Investigating Officer. As such, the entire evidence sought to be relied upon by the prosecution stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record, on the basis of which, it can be said that disputed vehicle compulsorily or necessarily required for conducted the trial. The Sessions Judge, while rejecting the release application filed by applicant has simply made vague observations. The continued seizure of disputed vehicle cannot be sustained on the basis of said observations inasmuch as, no finding has been returned by Court below that custody of the disputed vehicle is necessarily required for

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conducting the trial of concerned case crime number. To buttress his submission he has relied upon the judgement of Supreme Cour in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002)10 SCC 283 ,. Reliance is placed upon paragraphs 6, 7, 10, 14, 15, 16 and 17 of the said judgment. For ready reference, the same are re-produced hereinunder:-

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"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

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1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.

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2. Court or the police would not be required to keep the article in safe custody;

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3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

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4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

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7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under-

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"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, 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. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts

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under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

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The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

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To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

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10. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

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14. In our view, whatever be the situation, it is of no use to keep suchseized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

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15. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by 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 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 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.

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16. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

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17. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same."

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Per contra, the learned A.G.A. for State-opposite party-1 and 2 has vehemently opposed the present application. He submits that since the vehicle in dispute was used in the commission of crime, giving rise to criminal proceedings against charge sheeted accused including the applicant, therefore, no good ground exists to release the disputed vehicle. The disputed vehicle is case property and the matter is still subjudice before Court. As such, no such ground has emerged so as to release the dispute vehcile during the pendency of trial. He, therefore, contends that no good ground is made out in present application either warranting release of the disputed vehicle. As such, the present application is liable to be dismissed.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposie party-1 and 2 and upon perusal of record, this Court finds that it is an undisputed fact that applicant is the registered owner of the disputed vehicle. No such circumstance has emerged on record, on the basis of which, it can be conclusively concluded that custody of disputed vehicle is necessarily required during the pendency of trial. The disputed vehicle is lying unattended at the concerned Police Station on account of which, it is getting deteriorated.

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In view of the discussion made above, the observations made by Apex Court in the case of Sunderbhai Ambalal Desai (Supra) stand clearly attracted. As a result, the present application succeeds and is liable to be allowed.

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13. It is, accordingly, Allowed.

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The order impugned dated 31.08.2024 passed by the Sessions Judge, Ramabai Nagar (Kanpur Dehat) in Criminal Misc. Case No. 415 of 2024 (Rajesh Yadav Vs. State of U.P.), arising out of Case Crime No. 310 of 2023, under Sections 302/34, 120-B IPC, Police Station-Shivrajpur, District Kanpur Nagar , shall stands quashed.

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The release application field by applicant shall stand allowed. Court below shall release the disputed vehicle i.e. Vehicle No. UP 78 EU 8151 Wagon R after undertaking necessary verification exercise in accordance with law within a period of one month from the date of production of a certified copy of this order.

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Order Date :- 21.1.2025

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Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Rajesh Yadav v. State of U.P. and 2 Others

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