1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 17.08.2011 Coram: The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD).No.694 of 2011 Head-Claims-Chennai, TATA AIG General Insurance Co., Ltd., through its Authorised representative K.Mariappan, S/o.Krishnasamy, Assistant Manager, TATA AIG General Insurance Co., Ltd., North Block, 3rd Floor, A.A.Towers, No.4 and 5, Bye-Pass Road, Madurai. .. Petitioner vs. State Rep. by Sub-Inspector of Police, Kovilpatti East Police Station (Crime), Kovilpatti, (Crime No.262 of 2010) .. Respondent Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to call for the records relating to the case in Cr.M.P.No.7995 of 2010 on the file of the Court of the Judicial Magistrate No.I, Kovilpatty, Thoothukudi District and set aside the condition Nos.4 and 5 in the order dated 25.01.2011 in Cr.M.P.No.7995 of 2010. For Petitioner : Mr.M.Suri for M/s.S.Srinivasaraghavan For Respondent : Mr.P.Kandasamy Government Advocate (Crl. Side) ORDER This Criminal Revision is preferred to call for the records relating to the case in Cr.M.P.No.7995 of 2010 on the file of the Court of the Judicial Magistrate No.I, Kovilpatty, Thoothukudi District and set aside the condition Nos.4 and 5 in the order dated 15.01.2011 in Cr.M.P.No.7995 of 2010. 2. Mrs.B.S.Vanajakshi is the owner of the vehicle Scorpio car bearing Registration No.KA-05-MA-9160, Engine No.BF-34J51361 and Chasis No.MA1TA 2BFC 32J 89262. She laid a complaint before the Tilak Nagar Police Station, Bangalore, stating that the vehicle was stolen. The vehicle was recovered thereafter. In the meanwhile, the owner placed claim before the petitioner and entire insurance amount was paid by the petitioner to the owner. Thereafter, the petitioner filed a petition under Section 451 of Cr.P.C. for temporary custody of the vehicle. After hearing both sides, the Court below has allowed the application directing return of the vehicle with following conditions: "1.That the petitioner shall execute a bond for himself for Rs.5,00,000/- along with one surety for like sum. https://hcservices.ecourts.gov.in/hcservices/ 2 2.The undertaking affidavit should be obtained from the Head Claim i.e. competent higher authority of the said Insurance Company. 3.The photograph of the vehicle shall be taken keep it on file. 4.The petitioner shall produce the vehicle as when and where required by an order of this Court. 5.The vehicle shall not be disposed and alienate or modified until further orders. 6.That all the original records Registration Certificate and Insurance Certificate shall be produced." 3. Mr.M.Suri, the learned counsel appearing for the petitioner would submit that he agitates the condition Nos.4 and 5 imposed by the Court below for the reason that the petitioner being an institution could not put the vehicle in use, that the vehicle has kept idle which would render the vehicle useless, that the value of the vehicle will also come down and that there is no impediment for the Court to order sale of the vehicle and the sale proceeds be appropriated by the petitioner for which necessary bond will be executed to the satisfaction of the Court. 4. The learned Government Advocate (Criminal Side) would submit that there is no wrong in the order passed by the Court below and that there is no necessity to modify it. 5. The learned counsel for the petitioner placed much reliance upon a celebrated decision on this point rendered by the Hon'ble Apex Court reported in 2003 Supreme Court Cases (Cri) 1943, (Sunderbhai Ambalal Desai v. State of Gujarat), wherein Their Lordships have elaborately dealt with the importance of Section 451 of Cr.P.C. In paragraph 17, it has been observed that whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period, that it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time and that this can be done pending hearing of applications for return of such vehicles. As far as the conditions for temporary custody of valuable articles and currency notes are concerned, the Hon'ble Apex Court has formulated certain guidelines as follows: "12. For this purpose, if material on record indicates that such articles belong to the complainant 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 https://hcservices.ecourts.gov.in/hcservices/ 3 under Section 451 Cr.P.C. The bond and security should 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." 6. Following the above said judgment, this Court has decided in the case of Sunndaram Finance Ltd., rep. by its Branch Manager (Legal), P.Vijayakumar v. The State of Tamil Nadu, rep. by Inspector of Police, Kaveripattinam Police Station, Krishnagiri Taluk and another reported in 2011(1) MWN (Cr.) 437, observing that in cases where return of vehicles is sought and claim is highly contested, resort to sale of vehicle and credit of proceeds in fixed deposits pending disposal of case would be to common good and concluding that upon production of the vehicle before the Court below it shall cause photographs of the vehicle to be taken and record Panchnama thereof, that the petitioner shall be at liberty to effect sale of the vehicle and the photographs and Panchnama prepared shall be read as evidence in lieu of marking of the vehicles. 7. It is to be noted that the learned Judicial Magistrate has recorded a finding that there could be no rival claims with regard to the ownership of the vehicle in future. It is correct to say that there can be no rival because the owner herself has received insurance amount from the petitioner. 8. In view of the above said circumstances, this Court is of the view that the condition Nos.4 and 5 contained in the order of the Court below have to be modified to the following effect: (1) The petitioner shall produce a copy of this order before the Court below and the Court shall fix a date for production of the vehicle. (2) The petitioner shall give undertaking before the Court below that he will deposit the sale proceeds as directed by the Court in lieu of production of the vehicle. The photographs shall be marked at the time of trial in the place of marking of the vehicle. (*)(3) The petitioner shall produce the original R.C. for the vehicle before the Court below and after verification, it shall be returned to the petitioner on substitution by its xerox copy.” With the above said observations and directions, this Criminal Revision case is disposed of. Sd/- Assistant Registrar(T&P) (*)Amended as per the order of this Court dated 21.09.2011. Sd/- Assistant Registrar(T&P) /TRUE COPY/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To To be substituted for the order already despatched on 16.09.2011. 1. The Judicial Magistrate No.I, Kovilpatty, Thoothukudi District. 2. The Sub Inspector of Police, Kovilpatti East Police Station(Crime), Kovilpatti. +1cc to Mr.S.Srinivasa Raghavan, Advocate SR.No.32493 Crl.RC.(MD).No.694 of 2011 17.08.2011 srm PA/08.09.2011/3P/4C PA/28.09.2011/4P/4C https://hcservices.ecourts.gov.in/hcservices/