SCR.A/1766/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1766 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = MAHAVIRSINH RAMSINH RAVAT - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR JB DASTOOR for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, MR ASHISH M DAGLI for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 25/02/2008 ORAL JUDGMENT 1. Rule. L.B. Dabhi learned Additional Public Prosecutor SCR.A/1766/2007 2/6 JUDGMENT waives service of notice of Rule on behalf of respondent No.1 State of Gujarat and Mr. Ashish Dagli learned Advocate waives service of notice of Rule on behalf of respondent No.2. 2. Having regard to the facts of the case, with the consent of the learned Advocates for the parties the matter is taken up for hearing today. 3. The facts giving rise to the present petition are that the respondent No.2 herein lodged a complaint before the learned Chief Judicial Magistrate, Porbandar on 17th April, 2007 being Inquiry Case No.14/2007 alleging that the petitioner herein along with another accused had cheated the complainant and committed breach of trust and taken away the complainant’s trailer No. H.R. 55 B 4417 and thereby committed offences punishable under section 406, 420 and 114 of the Indian Penal Code. Pursuant to the said complaint, the learned Chief Judicial Magistrate passed an order directing investigation by the police under section 156(3) of the Code of Criminal Prcedure, 1973 (the Code). The said case was registered as M. Case No.7/2007. In connection with the said case, the investigating officer had seized the trailer in question on 29th May, 2007. 4. Subsequently, on 2nd June, 2007, the respondent No.2 made an application under section 451 of the Code before the learned Chief Judicial Magistrate for release of the muddamal trailer in his favour. By the impugned order dated 7th June, 2007, the learned Chief Judicial SCR.A/1766/2007 3/6 JUDGMENT Magistrate allowed the application directing release of the muddamal trailer in favour of the respondent No.2 (original complainant) subject to certain conditions. By this petition the petitioner has questioned the validity of the said order dated 7th June, 2007 passed by the learned Chief Judicial Magistrate. 5. Heard, Mr. J.B. Dastoor learned Advocate for the petitioner; Mr. L.B. Dabhi learned Additional Public Prosecutor for respondent No.1 State of Gujarat and Mr. Ashish Dagli learned Advocate for the respondent No.2. 6. Mr. J.B. Dastoor learned Advocate for the petitioner has vehemently assailed the impugned order passed by the learned Chief Judicial Magistrate. It is submitted that the dispute, if any, regarding ownership of the trailer in question is in the nature of a civil dispute between the petitioner and respondent No.2. That, the petitioner is the registered owner of the trailer in question and that pursuant to the complaint in question, the investigating officer has seized the same from the custody of the petitioner. That by virtue of the impugned order, in effect and substance, the trailer, which is seized from the custody of the petitioner, is handed over to the respondent No.2. It is further submitted that the impugned order is passed in breach of the principles of natural justice and as such is vitiated on that count also. According to the learned Advocate for the petitioner, it is settled legal position that only the registered owner of the vehicle can get possession of the vehicle, hence, the petitioner being the registered owner is entitled to the SCR.A/1766/2007 4/6 JUDGMENT custody of the muddamal trailer. 7. On the other hand Mr. Ashish Dagli learned Advocate for the respondent No.2 has supported the impugned order. Referring to the impugned order, it is pointed out that the learned Chief Judicial Magistrate has recorded that the accused were absconding and not available to the investigating agency. It is submitted that in the circumstances the question of giving the accused an opportunity of hearing does not arise. It is further submitted that the respondent No.2 had on the basis of documents produced before the court, been able to prima facie show his possession as well ownership of the trailer in question. It is stated that after the passing of the impugned order the custody of the trailer was handed over to the respondent No.2. However, on 22nd June, 2007 when the trailer was on the way from Porbandar to Baroda, the petitioner forcibly took away the possession of the trailer from the driver, in connection with which the respondent No.2 had lodged a complaint before the Limdi Police Station. It is, accordingly, urged that in the circumstances the conduct of the petitioner in forcibly taking custody of the trailer and thereby flouting the order passed by the learned Chief Judicial Magistrate, disentitles him from the grant of any relief by this Court. 8. From the facts as emerging from the record, the undisputed facts of the case are that the petitioner is the registered owner of the trailer in question. From the allegations made in the complaint it is the case of the SCR.A/1766/2007 5/6 JUDGMENT respondent No.2 that the petitioner and the other co- accused have taken away the trailer in question from his lawful custody. Pursuant to the complaint in question the trailer appears to have been seized as muddamal from the custody of the petitioner. Therefore, it cannot be gainsaid that the petitioner was entitled to an opportunity of hearing while deciding the respondent No.2’s application for under section 451 of the Code. However, it has been contended on behalf of the learned Advocate for the respondent No.2 that as the petitioner was absconding and not available to the investigating agency, the question of hearing the petitioner did not arise. In this regard, the learned Additional Public Prosecutor had been asked to take instructions as to whether the petitioner was actually absconding and as to what attempts had been made by the investigating agency to search out the petitioner. Pursuant thereto the learned Additional Public Prosecutor has taken instructions but is not in a position to point out that the petitioner was actually absconding or that sufficient attempts were made to locate the petitioner. A perusal of the available record shows that no notice was issued to the petitioner in connection with the application for release of muddamal. In the circumstances, when the petitioner is undisputedly the registered owner of the trailer in question he was entitled to an opportunity of hearing before deciding the respondent No.2’s application under section 451 of the Code. The impugned order having been passed without affording any opportunity of hearing to the petitioner suffers from the vice of being in breach of principles of natural justice SCR.A/1766/2007 6/6 JUDGMENT and cannot be sustained. 9. Both the learned Advocate for the parties have advanced submissions on the merits of the case, however, considering the view that this Court is inclined to take in the matter, it is not necessary to refer to and deal with the same. 10. For the foregoing reasons the petition succeeds and is accordingly allowed. The impugned order dated 7th June, 2007 passed by the learned Chief Judicial Magistrate, Porbandar on the respondent No.2’s application under section 451 of the Code in Preliminary Inquiry No.14/2007 and M. Case No.7/2007 is hereby quashed. The respondent No.2’s application under section 451 of the Code is hereby restored to file. The learned Chief Judicial Magistrate shall decide the same afresh after giving the petitioner an opportunity of hearing. Rule is made absolute accordingly. 11. It is clarified that this Court has not expressed any opinion on the merits of the case and it would be for the learned Chief Judicial Magistrate to decide the case on merits in accordance with law, without in any manner being influenced by this order. [HARSHA DEVANI, J.] parmar*