SSK/ 1 WP/3168.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3168 OF 2011 Laherechand Jethalal Chheda ....Petitioner Versus The State of Maharashtra ...Respondent Mr. Raju M. Yamgar, Advocate for the petitioner. Mr. D.P. Adsule, APP for the State. CORAM : RANJIT MORE, J. DATED : 15th NOVEMBER, 2011. P.C.: Rule. Rule is made returnable by consent of the parties. Mr. Adsule, learned APP waives service on behalf of the State. By consent, the writ petition is heard finally. 2. The writ petition arises out of proceedings under Section 451 of the Code of Criminal Procedure,1973 ( for short “the CR.P.C..) for return of Mahindra Scorpio Jeep bearing registration No. MH-04-BS-6737 (hereinafter referred to as “the said vehicle”). 3. The petitioner claims to be registered owner of the said vehicle which is seized by the Police on 20th May, 2011 at the instance of the accused – Ajay Surwade. The petitioner claims that the said accused was employed with him as a Driver. According to the prosecution, the said SSK/ 2 WP/3168.11 vehicle was used by the accused-Ajay Surwade in commission of an offence under Sections 302, 307, 324, 326, 504, 506(II), 143, 147, 149, 364, 367 of the Indian Penal Code, and Sections 3 and 25 of the Arms Act. The prosecution against the said accused is pending before the learned Fastrack Court, Sewri. The petitioner initially made an application for return of the said vehicle on 26th May, 2011. The said application was rejected on the ground that the investigation is in progress. The petitioner later preferred a fresh application on 16th July, 2011. The said application was also rejected by the learned Metropolitan Magistrate 53rd Court, Mulund, Mumbai by Order dated 12th August, 2011. This Order is confirmed by the Sessions Court in revision by Order dated 12th September, 2011, which order is impugned in the present writ petition. 4. Learned counsel for the petitioner invited my attention to Exhibit “A” page 10 and submits that the petitioner is registered owner of the said vehicle. He also invited by attention to the Say of the accused dated 21st June, 2011 at page 20, under which the accused has stated that he is not the owner of the vehicle and he was driving the said vehicle for earning his livelihood. He submitted that the said vehicle in question ought to be returned to the petitioner under Section 451 of the CR.P.C.. 5. Mr. Adsule, learned APP on the contrary supports the order impugned. He relied upon the Statement of the accused dated 10th August, 2011 and contended that the accused has objected return of the said vehicle to the petitioner. He further submitted that the Sessions Case SSK/ 3 WP/3168.11 is likely to be heard in the near future, and therefore, the said vehicle need not be returned to the petitioner. 6. Having heard learned counsel for the respective parties, I find merit in the petition. The extract of the RC Book which is annexed at Exhibit “A” page 10 reveals that the said vehicle is registered in the name of the petitioner. Thus, the petitioner is registered owner of the said vehicle. The veracity of the RC Book is not disputed by Mr. Adsule, learned APP. The Say given by the Investigation Officer on 19th July, 2011 to the petitioner’s first application for return of the said vehicle makes it clear that the accused- Ajay Surwade was driving the said vehicle belonging to the petitioner on salary of Rs.6,000/- p.m.. It is further mentioned that on 19th May, 2011, the accused discharged his duty as driver of the said vehicle at about 14.30 hrs. He left the petitioner at his residence and after taking the said vehicle he came to Bhandup, and thereafter he has committed the offence mentioned above along with other accused. I have also perused the Say of the accused dated 21st June, 2011 at page 20. In this Say, the accused has stated that he is not the owner of the said vehicle and he was driving the said vehicle for earning his livelihood. In this Say, the accused requested the Court to return the vehicle. Even, in the Statement dated 10th August, 2011 which is relied upon by the APP, the accused has stated that he has no concern with the said vehicle, and therefore, he is not interested in release of the said vehicle. The learned Magistrate rejected the petitioner’s application on the sole ground that return of the said vehicle is objected by the accused. This order is SSK/ 4 WP/3168.11 confirmed by the Sessions Court in revision. The above reason recorded by the learned Magistrate, in my view, is factually incorrect. Perusal of both the Say and the Statement of the accused makes it undoubtedly clear that he never objected the delivery of the said vehicle to the petitioner. On the contrary, in the Say, he has stated that the said vehicle be returned to the petitioner. In the Statement, he has stated that he is not concerned with the said vehicle. In any case, the petitioner’s application could not have been rejected on the ground of opposition by the accused. In this regard, reference can be made to the decision of the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638. The Apex Court taking into consideration the number of vehicles connected with the offence which are seized and kept unattended in the police stations observed that it is of no use to keep such vehicles at the police stations for a long period. The Apex Court further observed 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. Taking into consideration the above observation of the Apex Court and the fact that the petitioner is the registered owner, I am of the opinion that the petitioner’s application for return of the said vehicle ought to have been allowed. In the circumstances, the petition is disposed of by passing the following order: 1) The Station-House-Officer of Bhandup Police Station is directed to return the said vehicle i.e. Mahindra Scorpio Jeep bearing registration No. MH-04-BS-6737 to the petitioner within a period SSK/ 5 WP/3168.11 of two weeks from today on petitioner’s executing a bond to the satisfaction of the trial court and subject to the following conditions: i) He will not dispose of the said vehicle during pendency of the trial. ii) He will not create third party interest in the said vehicle by way of mortgage or obtaining loan from Bank of the said vehicle. iii) He will produce the said vehicle before the trial court as and when directed by the concerned officers. (RANJIT MORE, J.)