1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1189 OF 2011 Ramesh PrabhunathYadav Applicant versus State of Maharashtra Respondent Mr.Ranvir Shekhawat with J.S.Choudhary for applicant. Ms.S.V.Gajare, APP for State. Mr.R.K.Mayekar, PSI, Mulund Police Station present. CORAM : R.V.MORE, J. DATE : 24th November 2011 PC : 1. Heard learned counsel for parties. The application is filed challenging the order dated 30th July 2011 passed by the learned Magistrate, 27th Court, Mulund, Mumbai in Notice No.139/N/2011 with further direction to Mulund Police Station to hand over possession of an Auto Rikshaw (`Rikshaw' for short) bearing No.MH-03-AK-1014 to the applicant herein. 2. One Mr.Suresh Yadav, brother of the present applicant, was the owner of the rikshaw in question. He expired on 10th June 2003 leaving behind his wife Smt.Indudevi and son Shantanu. Smt.Indudevi also expired on 31st August 2009 leaving behind the only son Shantanu as her sole Legal Representative. As of now, the age of Shantanu is 16 years. After the death of Suresh Yadav and Indudevi Yadav, the applicant being the real uncle of Shantanu, is taking his care as a guardian. The rikshaw was handed over to the applicant with consent of other family members and since then the income from the said rikshaw was utilized for betterment and development of Shantanu. 2 3. The rikshaw was stolen by some unknown person on 29th March 2011. On 6th April 2011, an offence against unknown persons was registered vide FIR No.128 of 2011. During the investigation the Police seized the said rikshaw from Mulund area which was lying in abandoned condition. The rikshaw is presently in custody of Mulund Police Station. 4. The applicant preferred an application being CC No.63/N/2011 for return of the stolen rikshaw on 13th April 2011. The Police filed reply to the said application giving no objection to hand over the said rikshaw to the applicant on 18th April 2011. However, by order dated 17th June 2011, the learned Magistrate, 27th Court, Mulund, Mumbai rejected the said application on the ground that the applicant has not produced the Legal Heir Certificate from the appropriate authority. The applicant thereafter applied for necessary certificate and obtained the same. He filed fresh application being Notice No.139/N/2011 for return of rikshaw with affidavit in support thereto dated 17th July 2011. The Police gave no objection for return of the rikshaw vide reply dated 19th July 2011. However, again, the learned Magistrate rejected the applicant's application by impugned order. Therefore, the applicant is before this Court. 5. Admittedly the applicant is not claiming ownership right with regard to the said rikshaw. He seeks possession of the said rikshaw to meet the day to day expenses of minor Shantanu. The applicant has produced certificate issued by Tahsildar which is annexed at page 40 of this application to show that the applicant is looking after minor Shantanu as guardian. Learned APP after taking instructions from Investigating Officer Mr.R.K.Mayekar, PSI, Mulund Police Station states that the Police have no objection to hand over possession of the said rikshaw to the applicant subject to furnishing necessary surety. 6. In view of the above facts and circumstances, I am of the opinion 3 that present application deserves to be granted. The application is accordingly disposed of by passing following order :- (A) The impugned order dated 30th July 2011 passed by learned Metropolitan Magistrate, 27th Court, Mulund, Mumbai in Application (Notice) No.139/N/2011 is quashed and set aside; (B) The Station Officer, Mulund Police Station, Mumbai is directed to hand over possession of Auto Rikshaw bearing registration No.MH-03- AK-1014 to the applicant subject to following conditions :- (i) The applicant shall execute bond along with surety to the satisfaction of learned Magistrate; (ii) The applicant shall undertake to the Court that he will produce the said rikshaw as and when directed by the learned Magistrate; (iii) The applicant shall maintain the said rikshaw in good condition and shall not transfer/sell the said rikshaw to any other person; (R.V.MORE, J.)