At, High Court of Judicature at Patna
By, THE HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
For the Petitioner: Sandeep Kumar, Learned Counsel. For the Respondents: Learned A.C.
Heard Mr. Sandeep Kumar, learned counsel for the petitioner and learned A.C. to S.C. 21 for the State. Despite service of notice to opposite party no. 3, nobody had appeared on his behalf on 01.10.2013, when by way of indulgence the case was adjourned but today also when the case is heard, nobody is present on his behalf.
The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of order dated 16.02.2013 by which the petition filed by the petitioner on 24.07.2012 seeking permission for sale of the excavator/asset has been rejected by the Chief Judicial Magistrate, Aurangabad in Madanpur P.S. Case No. 51 of 2009.
The excavator/asset in question though belonging to the petitioner was taken on hire-purchase by opposite party no. 2, who in turn had given it to opposite party no. 3, for carrying out construction work in the State of Bihar. It appears that due to there being difference between opposite parties no. 2 and 3 and the State of Bihar, the excavator/asset in question was also seized in connection with Madanpur P.S. Case No. 51 of 2009. The said excavator/asset being kept in the police station gave cause to the petitioner for filing an application for its release in its favour, as it was the owner of the same. The Court below had allowed the application and accordingly the excavator/asset is in the custody and possession of the petitioner. However, one of the conditions of the release was that the petitioner could not sell the excavator/asset due to which it is lying idle and its value is diminishing every day. It is submitted that the petitioner no longer finds it viable to retain the excavator/asset and desires to dispose off the same so that the maximum value could be obtained since the petitioner is neither covered nor can be compensated for the loss, which is accruing to it on account of the vehicle not being in use. The petitioner accordingly, filed an application on 24.07.2012 before the Court below seeking permission to sell the vehicle. The same has been rejected on 16.02.2013, which is impugned in the present proceeding.
Learned counsel for the petitioner submits that there is no dispute with regard to the ownership of the vehicle. However, since the vehicle was being used, when it was seized by the police, by the opposite party no. 3, as per the direction of this Court, the said opposite party no. 3 was served notice; despite this, he has chosen not to appear. Learned counsel submits that even the opposite party no. 2, to whom the vehicle was given on hire-purchase, did not choose to oppose the application filed by the petitioner before the lower Court. It is submitted that presently opposite party no. 2 is on bail in the said police case in which trial is pending. Learned counsel submits that as per the provisions of Section 451 of the Code, the Court can order for sale of any property which is produced before it pending conclusion of the enquiry or trial. Learned counsel submits that per se the vehicle is not required for the purposes of the trial and thus allowing it to be sold would neither be against public interest nor shall be prejudicial to the prosecution for the reason that if the petitioner is allowed to sell the vehicle, he would be able to get a price which would be higher if the vehicle is sold later on due to the fact that by efflux of time the monetary value of the excavator/asset, on account of depreciation, shall keep decreasing. Learned counsel submits that the petitioner has already given adequate indemnity bond and sureties at the time of release of the excavator/asset as per the terms of the order of a co-ordinate Bench of this Court. Learned counsel submits that the Courts have consistently taken the view that the asset seized during a criminal trial, if not required for the purposes of investigation or trial should be released and also be allowed to be sold with appropriate safeguards. Learned counsel submits that already at the time of release, sufficient and adequate indemnity bond and sureties have been given and thus the Court ought to have allowed the application and exercised its jurisdiction under Section 451 of the Code in favour of the petitioner. In support of his contentions learned counsel has relied upon the decision of the Hon’ble Supreme Court in the Case of Sunderbhai Ambalal Desai v. State of Gujarat reported in AIR 2003 SC 638 as well as the decision of the Madras High Court in the case of Sundaram Finance Ltd vs The State of Tamil Nadu decided on 9th July, 2010.
Learned counsel for the State submits that in view of the power of the Court to allow such sale being there under Section 451 of the Code and the aforesaid decision of the Courts, this Court may allow such sale subject to the conditions which have been laid down by the Court in the case of Sundaram Finance Ltd (Supra).
Considering the facts and circumstances of the case, this Court finds substance in the submissions of learned counsel for the petitioner. The excavator/asset belonging to the petitioner, which is the subject matter of Madanpur P.S. Case No. 51 of 2009 and which has been released in its favour is allowed to be sold by the petitioner.
Though this Court was inclined to follow the same modalities as fixed in the case of Sundaram Finance Ltd (Supra), but learned counsel for the petitioner submits that the vehicle is in Kolkata and to bring it before the Court at Aurangabad just for getting it photographed and taking it back to Kolkata would saddle the petitioner with substantial additional expenditure and lead to further reduction in the net amount which the petitioner shall ultimately receive. He submits that the direction of the Court in Sundaram Finance Ltd (Supra) be followed with the modification that the petitioner may be allowed to get the photographs of the excavator/asset taken at Kolkata.
Accordingly, the petitioner shall get photographs of the vehicle taken at Kolkata which shall be filed along with an affidavit before the Court below. The petitioner company shall also depute an officer duly authorized to get his statement recorded before the Court with regard to the genuineness of the photographs and the same shall then
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be marked as exhibit by the Court in accordance with law. The same shall be read as evidence in lieu of marking of the excavator/asset. The petitioner shall then be at liberty to sell the excavator/asset through a process which ensures that it fetches the maximum price. Let the exercise be completed latest by 31st November, 2013 and another affidavit be filed before the Court below by the petitioner within the next ten days thereafter bringing on record details relating to the sale including the consideration amount. The application stands allowed in the aforesaid terms. The order be communicated to the Court below through Fax also at the cost of the petitioner.