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Saradchandra Raichand Shah v/s State of Gujarat & Another

    R. Criminal Revision Application No. 751 of 2018

    Decided On, 23 February 2021

    At, High Court of Gujarat At Ahmedabad


    For the Appearing Parties: Yatin Oza With Rajesh K. Savjani (2225), Nitin T. Gandhi (5620), Pranav Trivedi, APP., Rohankumar M. Amin (8851), Advocates.

Judgment Text

Cav Order:

1. By way of present Revision Application under section 397 read with section 401 of Code of Criminal Procedure, the applicant - original first informant has made following prayer in terms of para 16(B) :-

"16 (B) Hon'ble Court be pleased to allow this Revision Application and be further pleased to quash and set aside order dated 16/05/2018 passed by 8th Judicial Magistrate First Class, Ahmedabad (Rural) Mirzapur in Misc. Criminal Application No.533 of 2018 and be pleased to allow Misc. Criminal Application No.533 of 2018 by directing the concerned officers to release and handover muddamal to the applicant herein, in relation to I.C.R.No.16/2018 registered with Anandnagar Police Station, Ahmedabad City."

2. Briefly stated, it is the case of the applicant that on 02.02.2018, various valuable articles and cash were stolen, in all totaling amount of Rs.19,55,000/- and therefore, the applicant registered FIR being I.C.R.No.16 of 2018 before Anandnagar Police Station for the offence under sections 457, 380 and 114 of Indian Penal Code. On the basis of input received by the Crime Branch, about use of Maruti vehicle, trap was arranged and caught accused Mr. Sureshbhai @ Sukho w/o. Ladhubhai Makwana i.e. respondent no.3 herein. During the course of investigation, respondent no.3 herein disclosed commission of offence of theft at applicant's residential premises and further disclosed that cash money has been used to purchase Hyundai car having engine No.G4LAJM742950 in the name of his son Mr. Sanjybhai Sureshbhai Makwana (respondent no.2 herein) on 24.02.2018.

3. The applicant herein sought release of Muddamal including Hyundai Car under section 451 / 457 of the Code of Criminal Procedure. Respondent no.2 herein also submitted objection and counter claim and prayed for release of Muddamal Hyundai Car in his favour, as he is registered owner in the R.C.Book.

4. The learned JMFC passed order of rejecting applicant's application for release of Muddamal and allowed objection and counter claim filed by respondent no.2 i.e. son of accused and granted interim custody of the vehicle subject to certain terms and conditions as per impugned order. Feeling aggrieved by the said order, the applicant - first informant is before this Court.

5. Heard learned advocates appearing for the respective parties at length and thoroughly examined statement of respondent no.3 dated 03.03.2018 and 04.03.2018 annexed at Annexure B and E. At the outset, it requires to be noted that as per statement made by respondent no.3 herein, under sections 161 of Code of Criminal Procedure, during the course of investigation, on 24.02.2018, he disclosed that he has purchased Hyundai Car out of the cash money of Rs.12,50,000/- stolen from applicant's house. He further disclosed that he has purchased said car in the name of his son Mr. Sanjaybhai (respondent no.2 herein) and accordingly he produced the same before the Investigating agency.

6. So far as valuable articles viz. gold ornaments / diamonds are concerned, it appears that respondent no.3 committed more than four thefts at different areas of Ahmedabad. The Court did not find any supporting evidence seeking custody thereof and therefore, the learned Trial Court has rightly refused to deliver such articles like gold ornaments / diamonds and other ornaments to the applicant.

7. It is a matter of fact that seizure of car is reported to the learned Magistrate under the provisions of the Code of Criminal Procedure. The enquiry envisaged under section 457 of the Code of Criminal Procedure should be confined to the question as to who is entitle to possession of the property. Title to the property is not a matter of very relevance to such enquiry. The expression "delivery to any person claiming to be entitled to possession thereof" cannot be equated with delivery to the person from whom the property is seized or taken. Of course, if a person from whom property is seized is found to have been in lawful possession at the time of seizure, said possession can be equated with the expression "entitled to possession thereof". Additionally there is no bar in section 25 of the Evidence Act or section 162 of the Code of Criminal Procedure to confessional statement of an accused made to police officer during investigation being used for the purpose of section 451 / 457 of the Code of Criminal Procedure to determine firstly, whether the property is property regarding which an offence appears to have been committed and secondly, for determining the person to whose custody it should be delivered. It is well settled that during enquiry for disposal of properties, the Courts are well within the power to use case diary statement of witnesses as well as confessional statements of the accused.

8. So the statement made by respondent no.3 can be used for limited purpose mentioned in section 162 of the Code of Criminal Procedure for ordering disposal of property under section 451 / 457 of Code of Criminal Procedure. In other words, embargo contained in section 162 of the Code of Criminal Procedure is not applicable when such statements are used in inquiry under section 451/ 457 of the Code of Criminal Procedure for disposal of the property.

9. The learned Trial Court failed to notice scope of statements so made by respondent no.3 during the course of investigation of the FIR lodged by the applicant and thus misdirected itself by observing that respondent no.2 being registered owner and as the applicant relies on statement of respondent no.3, rejected the application of the applicant and application of respondent no.2 was allowed. In Court's considered opinion, the learned Trial Court has committed error in discarding statement of accused - respondent no.3 herein, in deciding the application preferred under section 451 / 457 of the Code of Criminal Procedure, as there is no embargo or bar created under section 162 of the Code of Criminal Procedure for use of statement of accused including confessional statement while deciding dispute for disposal of property, which the learned Trial Judge failed to use it. Under the circumstances, the impugned order is illegal and therefore, deserves to be quashed and set aside. Accordingly, impugned order is quashed and set aside with a dir

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ection to hand over the Muddamal - Hyundai Car in favour of the applicant on the same terms and conditions as imposed in the impugned order while releasing the vehicle in favour of respondent no.2 and consequently interim custody granted in favour of respondent no.2 herein is hereby quashed and set aside. The learned Trial Court to expedite the process of implementation of the order and perform all required legal procedure to transfer the name of the applicant in RTO record, so far as the delivery of car is concerned. 10. In view of above, present application is partly allowed. Rule is made absolute to the aforesaid extent. Record and Proceedings be sent back to the Trial Court immediately.