IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.277 of 2009 SHANKAR YADAV,S/O BARDI YADAV, R/O VILLAGE-RAMJEE TOAL(BHELAHI)SHAHPUR, P.S.- NAUHATTA, DISTRICT- SAHARSA…………………………………………………………………………………………PETITIONER Versus 1. STATE OF BIHAR, THROUGH THE S.P. SAHARSA. 2. KAMLESHWARI MUKHIYA, S/O NANDU MUKHIYA, R/O VILLAGE- RAMJEE TOLA SHOLAPUR, P.S.-NAUHATTA, DISTRICT- SAHARSA…………………………………………………RESPONDENTS. For the petitioner…………………………………………Mr. Pramod Singh For the State……………………………………………………… S. C. 15 5 06-07-2010 Heard, learned counsel for the petitioner and the learned counsel for the State. In spite of valid service of notice, no one appears for opposite party No. 2 on 2.7.2010. Today also no one appears for the opposite party No. 2. The petitioner seeks quashing of order dated 26.6.2008, passed by C.J.M. Saharsa, in Nauhatta P.S. Case No. 90 of 2007 and order dated 22.12.2008 passed in criminal revision No. 159 of 2008, by Additional Sessions Judge cum F.T.C.I. Saharsa, where by his application for release of boat has been rejected. The petitioner made written report to local police on 20.9.2007 stating therein that he had purchased boat from one Chandeshwari after paying Consideration amount of rupees 17,000/-. The petitioner alleged that on 26.10.2007, the accused persons came and forcibly occupied his boat. Petitioner filed a petition under section 451 Cr.P.C. for release of the boat. The opposite party No. 2 also filed a petition for release of boat in his favour. In the mean time, the I.O. has submitted final form finding the case to be false. The I.O. also recommended for initiating a proceeding under section 182 and 211 of 2 I.P.C. against the informant. The learned A.C.J.M. Saharsa released the vehicle in favour of opposite party No. 2 observing that from perusal of record it transpires that opposite party No. 2 is the owner of the boat. It appears that the petitioner filed a revision before the Sessions Court, Saharsa, which too was rejected by the order dated 22.12.2008. Counsel for the petitioner assailed the impugned order on following grounds; firstly, the C.J.M. Saharsa has merely observed that from record it appears that Kamleshwari Mukhiya opposite party No. 2 is the owner of the boat, without referring to any materials, thereof. Secondly section 451 Cr.P.C. mandates recording of evidence before an order in respect of custody or release of property is made. In support of his second submissions, learned counsel has relied upon decisions of Hon‟ble Apex Court, in case of Sunderbhai Ambalal Desai v. State of Gujarat reported in 2004 (1) BBCJ IV-3, as well as case of Praveen Kumar v. State of Himachal Pradesh and another, reported in 1989 CRI.L.J. 2537. Counsel for the State submits that in course of investigation the claim of the petitioner to the ownership of boat was found to be false. Section 451 Cr.P.C. does not mandate taking of evidence in all cases where issue of custody or disposal of a property is involved. The discretion is of the Court to take evidence, if it finds expedient to do so. In order to appreciate the point in question, it would be necessary to quote section 451 Cr.P.C., which reads as follows: ”451- Order of custody and disposal of property pending trial in certain 3 cases. When any property is produced before any Criminal Court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending, the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation:- For the purposes of this Section, „property‟ includes- (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.” Section 451 confers power on criminal to pass order regarding custody and disposal of property during an investigation or trial. The term „property‟ has been used in a wide connotation and as per section 451(a) it would include property of any kind or document. The section is in two parts. The first part states that if a property is produced before such court, it may pass an appropriate order for custody of such property. The second part provides that in case the property is subject to speedy or natural decay or otherwise if it finds expedient, then in appropriate case the Court may record evidence and order it to be sold or may pass any other order regarding its disposal. The section provides that if Court finds it necessary, then in appropriate case it may take evidence before it decides that the property be sold or be disposed of in any other manner. 4 The term “ the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of” used in last line of section 451, which deals with second limb of release of property, is couched in directory term. It provides that Court may take evidence if it is so necessary, but it does not mandate, that in all circumstances Court has to take evidence before it dispose of the petition for release or custody. The Apex Court in case of Sunderbhai Ambalal Desai v. State of Gujarat(supra) has examined the scope and object of section 451 in depth, categorizing the properties, under their respective block headings like valuable articles, currency notes, vehicles etc.. The Apex Court observed that when it relates to grant of custody of valuable articles and currency notes, the Court may follow the procedure of recording such evidence as it thinks necessary as provided in section 451 Cr.P.C.. It would be relevant to quote para 12 and 13 of the judgment which reads as under:- “12. For this purpose, if material on record indicates that such articles belong to the complaint at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:- (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 13. 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 sh0ould be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that 5 photographs of 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.” In respect of release of vehicle, the Hon‟ble Apex Court observes that it would of no use to keep the seized vehicle at the police station for a longer period. The Magistrate should pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicle. It has further been observed that in case the vehicle is not claimed by any one,it should be auctioned. Neither the Apex Court in case of Sunderbhai Ambalal Desai nor does section 451 mandates that in respect of release of vehicle, evidence mandatorily has to be recorded by the Court, before if passes any order in respect of its custody or disposal. It would be relevant to quote para 13 and 18 of the judgment. “13. 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 sh0ould be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of 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. 18. 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 6 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.” The next case relied upon by the petitioner is that of Praveen Kumar v. State of Himachal Pradesh and another, reported in 1989 CRI.L.J. 2537. In the aforesaid case, the Court emphasized that if a party wants to adduce evidence in support of his claim, it may be allowed to do so. The judgment has emphasized that all concern should be heard before giving custody of property to one party or the other. Thus, I find no merit in the submission of the petitioner that in all cases, the Court necessarily has to record evidence before ordering custody of property. The next submission of the petitioner is that the impugned order does not disclose any ground for releasing the boat in favour of the opposite party No.2 It appears from the impugned order that the Court released the boat in favour of the opposite party as the case of theft of boat levelled by the petitioner in his F.I.R., was found to be false. The other reason given by the Magistrate was that the materials on record show that the boat belongs to the opposite party No. 2. The Magistrate has not referred or discussed any material either general or in particular on record which weighed with him for coming to the conclusion that the boat be released in favour of opposite party No. 2 Kamleshwari Mukhiya. Such reference is 7 imperative, when claims are being contested. The revisional Court too has missed the aforesaid point, while affirming order of the Magistrate. In the result, this application is allowed and the impugned order dated 26-6-2008 passed by C.J.M., Saharsa and order dated 22-12-2008 of Additional Sessions Judge, cum F.T.C.I., Saharsa in Criminal revision No. 159 of 2008, are set aside and matter is remanded to the Court of C.J.M., Saharsa to decide the issue afresh in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the claim of either party. A.F.R. S.P. (Samarendra Pratap Singh, J.)