1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2462 OF 2008 Shaikh Kayyum S/o.Shaikh Budhan Age-32 years, Occu-Driver and Business, R/o.Kazi Mohalla, Bhokardan, Tq.Bhokardan, Dist. Jalna APPLICANT VERSUS 1. Sayyed Takiyuddin S/o.Sayyed Yusuf, Age-37 years, Occu : Driver, R/o.Shahagad, Tq.Ambad, Dist. Jalna 2. State of Maharashtra, Through Govt. Pleader, High Court of Judicature of Bombay Bench at Aurangabad RESPONDENTS Mr.D.S.Bharuka, learned counsel for the applicant. Mr.A.S.Kharosekar, learned counsel for respondent no.1 Mrs.Y.M.Kshirsagar, learned APP for respondent no.2 (CORAM : A.V.POTDAR, J.) DATE : 01/12/2009 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present applicantion, the applicant has challanged the order passed by the Additional Sessions Judge-2, Jalna in criminal revision application no.71/2008 dated 20/06/2008. 2 2. In this matter, rule was granted on 31/03/2009. 3. Considering the small question involved in this criminal application, the application is heard finally at the stage of admission. 4. Considering the submissions of learned counsel appearing for the applicant as well as for the first respondent, and the documents produced alongwith the application, it appears that the petitioner herein has purchased a vehicle which was registered with the registration authority bearing no. CG-04-6673. This vehicle was purchased somewhere in the year 2007 under the hire purchase agreement from Shriram Financer. The vehicle is also hypothecated by the said Finance Institution. Accordingly the entries of hypothecation are entered in the RC Book of the said vehicle. It further appears that somewhere in the month of June 2008, under the agreement executed between the petitioner and one Mohammad Ayyaz, as the petitioner for certain reasons unable to pay the installments agreed with the Finance Company against the vehicle purchased under the hire purchase agreement from Shriram Financer and this Mohammad Ayyaz agreed to repay the balance installments to the Finance Company, under the said agreement, the vehicle was handed over to Mohammad Ayyaz. It further appears that even though the said Mohammad Ayyaz was agreed to repay the balance installments to the Finance Institution, on 29/01/2008 further entered into an agreement with one Mohammad Shafi and handed over the vehicle to him but without consent of the petitioner 3 or Finance Company. It further appears that the complaint came to be lodged by the petitioner in Bhokardan Police Station on 10/04/2008 punishable u/s. 406 and 420 against Shaikh Shafi, Shaikh Javed and Shaikh Imam. During the course of investigation, the vehicle No. MH-23-4764 was seized by the Bhokardan police during investigation from the possession of first respondent. During the investigation when the statement of this respondent no.1 was recorded by the Investigation Officer, it discloses that the body and cabin of this vehicle which was seized from the possession of first respondent, the first respondent has purchased the body and cabin from Mohammad Shafi who is arrayed as an accused vide CR No. 35/2008. It further appears that an application was moved before the Trial Court for handing over the custody of the vehicle in question which was rejected by the Trial Court. The order passed by the Trial Court was challenged in a criminal revision filed before the Sessions Court, Jalna which was numbered as Criminal Revision No.71/2008 wherein the learned Additional Sessions Judge-2 Jalna set aside the order passed by the Trial Court and allowed the criminal revision and ordered to hand over the custody of the vehicle seized in connection with this CR No.35/2008 to the first respondent, which order is impugned in the present criminal application. 5. With the assistance of learned counsel appearing for applicant and also for the first respondent, perused the impugned order passed in Criminal Revision No.71/2008. It is to be noted that after perusal of the entire order impugned, I did not find on what basis, the 4 learned Additional Sessions Judge concluded that the first respondent is entitled for the custody of the vehicle in question for which an application was moved before the Trial Court and was rejected by the Lower Court. Under the provisions of Section 457, 452 of The Cr.P.C., which deals with handing over of the custody of the articles seized in connection with any crime during the course of investigation. Section 457 deals with the interim custody of the articles while section 452 deals with the final custody of the articles after the conclusion of a criminal trial. Under sub-clauses of section 452 of Cr.P.C., if the article of which the possession to be handed over after the criminal trial is over, the title is under dispute, then it is provided that the parties who are claiming the possession of the property to get decide their title from the competent Civil Court and after the title is decided as per the decision given by the Civil Court, that property to be handed over to the title holder of that property. 6. So far as the vehicles are concerned, generally under the Law, if the vehicle is seized in any criminal offences, the vehicle to be handed over to the registered owner of the vehicle in whose name the vehicle is registered with the Regional Transport Office. In this case, affidavit in reply is filed by the first respondent wherein in un- ambiguous categorical terms, the first respondent has admitted that the vehicle which was seized by the police during the course of investigation from his possession, the body and cabin of that vehicle was purchased by him from said Mohammad Shafi to whom the custody of the vehicle was given by Mohammad Ayyaz and to 5 Mohammad Ayyaz under the agreement executed, the custody was given by the present petitioner. Thus the fact is clear that the body and cabin of the vehicle seized during the course of investigation was purchased even though under the bonafide belief by the first respondent, but from the said Shaikh Shafi. 7. The facts which can not be said to be disputed or which can not be said to be admitted, while allowing the criminal revision, the Additional Sessions Judge is supposed to give the reasons for which he had allowed the criminal revision and handed over the interim custody of the vehicle in question to the first respondent. As stated earlier that on perusal of the entire order passed, impugned subject matter of this criminal application, we do not find anywhere on which basis, the conclusion is drawn by the Additional Sessions Judge-2 Jalna to hand over the custody of the vehicle to the first respondent. If the order is without any reasoning, then that order is nullity in the eye of law. In the premise, the order passed in criminal revision no. 71/2008 is liable to be quashed and set aside and to remit the matter back to the Additional Sessions Judge-Jalna to decide it on its own merit. Hence the impugned order passed in Criminal Revision No. 71/2008 is hereby quashed and set aside. The matter is remitted back to the Court of Sessions Jalna to decide it on its own merit, but within the stipulated period of 2 months from the date of receipt of writ of the order passed in this application. 8. Rule is thus made absolute as indicated above. Criminal 6 Application stands disposed of accordingly. Parties to appear before the Court of Sessions, Jalna on 16/12/2009. Learned counsel appearing for the applicant and for first respondent undertake to intimate this date to their respective clients for their appearance before the concerned Court. Till the matter to be heard finally by the Court of Sessions, Jalna, the interim custody handed over to the first respondent under the impugned order which is today set aside by way of this order, the custody to remain with first respondent subject to decision in the said criminal application. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.2462-08