IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.MC.No. 1237 of 2011() ------------------------- CMP.853/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT I,MAVELIKKARA .................... PETITIONER(S): PETITIONER: --------------------------------------------- SUNDARAM FINANCE LTD., HAVING ITS REGISTERED OFFICE AT, NO.21, PATULLOS ROAD, CHENNAI, REPRESENTED BY ITS ASSISTANT MANAGER (LEGAL) P.V.SUNILKUMAR. BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE SI OF POLICE, MAVELIKARA-690 101. 2. T.N.UNNIKRISHNA PILLAI, USHAS, PATTOR P.O., NOORANADU, ALAPPUZHA RESIDING AT ROOM NO.4, KOYIPURATHU LODGE, MARKET ROAD, PANDALAM-689 501. R1 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1237 of 2011 ==================================== Dated this the 01st day of June, 2011 O R D E R Petitioner made a claim under Section 451 of the code of Criminal Procedure (for short, “the Code”) in the court of learned Judicial First Class Magistrate-I, Mavelikkara for interim custody of a Car involved in Crime No.47 of 2010 of Mavelikkara Police Station for offence punishable under Section 302 of the Indian Penal Code. Allegation is that after the incident culprits made use of the vehicle in question to make their escape good. The vehicle was seized in the course of investigation. Learned Magistrate by Annexure-A1, order dated June 01, 2010 released the vehicle to the petitioner on condition of executing bond for `3,00,000/- with two solvent sureties for the like sum each with the further condition that petitioner shall not effect any kind of alteration of the vehicle whether minor or major and shall produce the vehicle as and when required by that court or by the Investigating Officer in the very same condition it was released. Petitioner filed C.M.P. No.853 of 2011 before learned Magistrate seeking permission to sell the vehicle since according to the petitioner it is CRL.M.C. No.1237 of 2011 -: 2 :- not in a position to use the vehicle and practically that rendered Annexure-A1, order fruitless. That request was turned down by Annexure-A2, order dated March 17, 2011 observing that if permanent custody of the vehicle is given to the petitioner who is only a Financier that may prejudicially affect the investigation, trial of the case and such an order would go against proceeding under Sec.452 of the Code. That order is under challenge. 2. Learned counsel contended that there is no bar in permitting petitioner to sell the vehicle. Learned counsel relied on the decision in Sunderbhai Ambala Desai v. State of Gujrat (2003 [2] KLT 1089 [SC) and the unreported decision of the Supreme Court in W.P(C) No.14 of 2008 (the gist of which is given in General Insurance Council v. State of A.P. (2010 [2] KLT SN 75 [Case No.76). Learned Public Prosecutor contended that permission for sale of the vehicle cannot be allowed since trial has not concluded and that if allowed and vehicle is sold that might affect the claim of other parties if any which the trial court is required to adjudicate under Sec.452 of the Code. 3. I have been referred to the decisions relied on by the learned counsel. Learned counsel would invite my attention to CRL.M.C. No.1237 of 2011 -: 3 :- Paragraphs 17 and 18 of the decision in Sunderbhai Ambala Desai v. State of Gujrat (supra). There the situation when there is no taker for the vehicle involved is considered and it is stated that in a situation where the accused or owner or the Insurance Company or any third person does not make any claim over the vehicle the court may direct its auction. Such orders are to be passed within six months from the date of production of the vehicle before court. In General Insurance Council v. State of A.P's case the Supreme Court laid down directions with regard to seized vehicles in addition to those laid down in Sunderbhai Ambala Desai v. State of Gujrat (supra). The Supreme Court considered cases where the insurer claimed custody of the vehicle. It is held that physical production of the vehicle in such situations once it is given to the custody of the insurer may be dispensed with. Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that rightful ownership of the vehicle does not vest with the insurer. It is also held that photographs taken may be taken as secondary evidence. CRL.M.C. No.1237 of 2011 -: 4 :- 4. In the present case it is true that at this stage nobody other than petitioner has come forward claiming right/possession over the vehicle. But such claims arising in future cannot be ruled out. I must bear in mind that trial court has to dispose of the property as provided under Sec.452 of the Code at the conclusion of trial. Unlike in cases where the material object is subject to speedy decay, in the case of vehicle it is not as if its immediate auction is required when there is at least petitioner who claims right for possession of the vehicle. May be, in the course of trial of the case production of the vehicle might become necessary for identification even if its photographs are taken and produced before the court and the same could be used as secondary evidence as the Supreme Court directed. Contingencies where production of the vehicle is required for identification in connection with trial of the case cannot be ruled out. In such a situation the vehicle has to be kept in tact to be produced before court. If the vehicle is allowed to be sold it might affect trial of the case and an effective order that trial court may have to pass under Sec.452 of the Code. Bearing these circumstances in mind request of petitioner for permission to sell the vehicle cannot be allowed. CRL.M.C. No.1237 of 2011 -: 5 :- Criminal Miscellaneous Case is dismissed without prejudice to the right of petitioner to make appropriate claim under Sec.452 of the Code at the appropriate stage. THOMAS P. JOSEPH, JUDGE. vsv