1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 589 /2010 (Kotak Mahindra Primus Ltd. vs State of Maharashtra and another ). ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Shri R S Akbani , Adv. for applicant Shri M K Pathan, APP for Respondent no.1-State Shri B M Kharkate, Advocate for respondent No.2. CORAM : A.P. BHANGALE, J. DATED : 27 th June, 2011. By means of this petition, the petitioner questions the order dated 19.4.2010 passed by learned Judicial Magistrate, First Class, (Court No.1), Nagpur in Misc. Criminal Application Nos. 1891/2009 & 1988/2009. By the common order, the learned Magistrate exercising powers under section 457 of Criminal Procedure Code . (in short “the Code”) in the pending criminal case, directed the motor vehicle Maruti Wagon R, bearing Registration No. MH -31 CN 539 to be handed over in custody of the respondent Dilip Namdeo Deshmukh/ respondent No.2 herein, subject to certain conditions. The respondent no.2 was also directed to furnish indemnity bond in the sum of Rs. 4,00,000 /- with surety in the like amount before the learned Magistrate, with further condition to prevent sale, transfer or any charge over the motor vehicle, until conclusion of trial in respect of Crime No.235/2009. He was also directed to produce the vehicle before the Court and the Investigating 2 Officer during the course of trial and investigation in the said case arising from Crime No.235/2009. Thus, adequate precaution was taken to effect necessary Panchnama also regarding present condition of the said vehicle. Cost of the taking photographs etc. was to be borne by said respondent no.2. According to learned Advocate for the petitioner, the Respondent no.2 had incurred a loan in the sum of Rs.2,83,755/- to buy the motor vehicle some time in October, 2005. Learned Advocate for the petitioner is unable to give details as to repayments made by said Dilip Deshmukh but, according to him, there were dues to the tune of Rs.3,98,407/-. It is further contended that the Arbitral Tribunal, Nagpur consisting of sole Arbitrator Shri S.Z. Quazi ( Advocate) in Application No.1/2009 passed an interim order u/s. 17 (1) of the Arbitration and Conciliation Act, 1996 and had by order dated 6.7.2009 allowed the application of the petitioner; appointed Receiver in order to seize and take possession of above vehicle from the custody of said Dilip Deshmukh or his agent who may be in possession of the vehicle with further direction to arrange for its safety. Accordingly, the Receiver was to comply with the order passed by the Arbitral Tribunal and to submit report regarding compliance of the interim order passed by the Arbitral Tribunal. It is not known as to whether final award has been passed in Application No.1/2009 but, according to 3 learned Advocate for the respondent No.2, the appeal before the learned District Judge is pending, which may be in view of interim order passed u/s 17 of the said Act. The order u/s 17 as interim measure is also appealable u/s 37 (2)(b) of the Act. Learned Advocate for the respondent No.2 opposing the petition, supported the impugned order passed by the learned Magistrate who rejected the application of the petitioner while granting interim custody of the vehicle in favour of respondent no.2 who is owner of the vehicle. Further, according to respondent- State, since there was no material available as regards the alleged theft “C” summary report was filed before the learned trial Magistrate I,e. Court of JMFC No.1 Nagpur,on 27.5.2010. The learned Advocate for respondent no.2 who also opposed the petition placed reliance upon ruling in Manoj and another vs. Shriram Tpt. Finance Company and others reported in 2003 All MR (Cr) 1757 (SC) in order to advance arguments that it is open for the financier to approach the Civil Court in the pending civil matter for interference with the order passed by the learned Magistrate. It cannot be disputed that the order u/s 457 of the Code is passed pending enquiry or trial when the property in question is reported to the trial Magistrate but not produced before him. The learned Magistrate 4 concerned has wide discretion to pass such order as he thinks proper after considering the interest of justice as well as prospective necessity of production of seized vehicle at the time of enquiry or trial. At the conclusion of trial or enquiry, it is open for the learned Magistrate concerned u/s 452 of Code to pass final order as the custody of the seized property after hearing the parties who may be affected by the final order disposing of the case. The contentious issue as to right to property is not decided by a Criminal Court. The order passed by Criminal Court u/s. 457 or even u/s. 452 of the Code at the time of conclusion of trial or enquiry, it is open for the party concerned to approach the competent Civil Court to get a decision as to right to property. Be that as it may, by the impugned order necessary conditions have been imposed so as to take adequate precaution for production of the property at the time of enquiry or trial i.e. before final disposal of the case. Furthermore, according to the learned Advocate for the petitioner, the interim order u/s 17(1) of the Arbitration and Conciliation Act, 1996 is already passed on 6.7.2009 whereby the custody of the vehicle is directed to be with the Receiver appointed by the Arbitral Tribunal in Application No.1/2009. Learned Advocate for the respondent submitted that the interim order under section 17 (1) of the Act has been challenged in Appeal before the learned District Judge Nagpur. That being so, the impugned order which is passed on 19.4.2010 shall be subject to the decision by 5 the competent Civil Court regarding custody of the motor vehicle MH 31: CN -539 Wagon R (Maruti make). It is made clear that the impugned order shall live and survive until the competent Civil Court passes an order regarding custody of the said motor vehicle. It is expected that the learned trial Magistrate shall endeavour to finally dispose of the case as expeditiously as possible. With the above observations, Writ Petition is dismissed. JUDGE Sahare