- (1.) THIS is a petition under Section 482, Cr. P. C. against the order of the learned Additional Sessions Judge No. l, Sri Ganganagar dated November 24, 1993 and of the Munsif-cum-Judicial Magistrate, Padampur dated September 15, 1992 by which they have refused to give 'rehda Gada' (Maruta without number) in the custody of the petitioner on the ground that it has been seized under section 207 (1), Motor Vehicles Act, 1988 (herein after to be called 'the Act') and it could be released under Section 207 (2) of the Act by the transport authority. The facts of the case giving rise to this petition may be summarised thus.
(2.) ON September 14, 1992, the said 'rehda Gada' was going from Kamarpura to Gajsinghpur (Sri Ganganagar ). It was being driven by Lal Chand. At 6. 30 P. M. , it was checked in the way near Railway crossing and Municipal out-post by the S. H. O. , Gajsinghpur. No document in respect of the said vehicle was found with the driver Lal Chand. Accordingly, it was seized by the S. H. O. ON September 15, 1992, a complaint under Section 39 read with Ss. 192, 146 read with 196, 77 read with 177 and 3 read with 181 of the Act was filed in the court of the Munsif-cum-Judicial Magistrate, Padampur against its owner Gurraj Singh petitioner and driver Lal Chand. Gurraj Singh moved an application for the custody of the said vehicle during the pendency of the case. It was rejected by the learned Munsif-cum-Judicial Magistrate, Padampur observing that it could be given in custody under Section 207 (2) of the Act by the transport authority and necessary documents required under the Act are not with the accused petitioner Gurraj Singh. A revision petition was filed against this order and it was dismissed by the learned Additional Sessions Judge No. l, Sri Ganganagar by his order dated November 24, 1992. It has been contended by the learned counsel for the petitioner that the learned Munsif-cum-Judicial Magistrate, Padampur acquired jurisdiction under Section 451, Cr. P. C. 1973 to give the said vehicle in the custody as soon as the complaint was filed before him and it was not necessary to approach the transport authority. He further contended that the said vehicle would be damaged by its continuous exposure to weather and the Hon'ble High Court has issued a circular order for promptly passing order for the custody of the vehicles during the pendency of the case relating to them. The learned Public Prosecutor tried to support the impugned orders. It is clear from the impugned order dated September 15, 1992 of the learned Munsif-cum-Judicial Magistrate, Padampur that a complaint has been filed in his court against the accused-petitioner and driver Lal Chand under the aforesaid sections of the Act. Immediately thereafter, he acquired jurisdiction under Chapter XXXVI, Cr. P. C. in respect of the said vehicle to pass necessary orders. Reference of Transport Commissioner, Hyderabad vs. S. Sardar Ali (1), Para 4 (last portion) may be made here. It cannot, therefore, be said that the said vehicle can be given in custody under Section 207 (2) of the Act by the transport authority only. In this case, the circular No. 4/p. I. dated July 28, 1975 is not applicable. It would be best to quote it here. It runs as under: - "i am directed to say that it has been brought to the notice of the Court that some Judicial Magistrates have ordered the release of even those vehicles which had been seized under Section 17 (2) of the Motor Vehicles Act, on execution of personal bonds of petty amounts. The section provides that where any tax due in respect of any vehicle has not been paid, any police officer not below such rank as may be prescribed, and any officer of the Transport Department not below the rank of a Sub-inspector, and any officer of the Commercial Taxes Department not below the rank of an Inspector posted at the check posts controlled by the Commercial Taxes Department, may seize and detain such vehicles and take or cause to be taken such steps as he may consider necessary for the safe custody of the vehicle until it is produced before the Taxation Officer of the area concerned within a reasonable time or the tax due in respect of the vehicle is paid. It appears that it cannot be said in such cases that the vehicle has been seized with respect to any offence, and a Judicial Magistrate will have no jurisdiction to order its release in exercise of the powers under the Code of Criminal Procedure. The correct legal position should therefore be kept in view while examining such cases. " It is not in dispute that the said vehicle is lying exposed to the weather since September 14, 1992. If it is not given in the custody, it may further deteriorate. It has been observed in Basava vs. State of Mysore, (2) at para 4, as follows: - "the object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. "
(3.) IN Deewan Singh vs. State of Rajasthan (3), it has been observed as under : - ". . . . . there are some circumstances in every case which persuade a court at times to grant relief on consideration of the practical aspect of the matter also. It is a matter of common experience that whenever a vehicle is kept at police station it is no body's care and its condition deteriorates day by day and a time comes where it becomes a scarp even before the trial is concluded. IN these circumstances, it not only becomes an individual's loss but is also a national loss, because if the vehicle is on wheels then it is used for transportation and earns revenue to the State also and, therefore, so far as practicable vehicle should not be permitted to be ruined in police station. " Reference of Daulat Ram vs. State of Rajasthan (4), may also be made here. Rule 101 read with column 6 of Return No. 1 of the General Rules (Criminal), 1980 also requires passing of necessary orders under Section 451, Cr. P. C. for the safe custody of the malkhana articles including vehicles during the pendency of the criminal cases relating to them. In this case, Circular no. 15/p. I. dated July 10, 1974 was fully applicable. It runs as under: - "i am directed to say that in the course of the inspections of the subordinate courts by the Hon'ble Chief Justice, it was noticed at number of places that properties of the criminal cases which are in the custody of the criminal courts (Malkhana articles) are not being disposed of. At one place, one full room was found laden with bicycles. At another place, a truck was found lying in a state of neglect in the court compound for over four years. On account of neglect and disuse, their deterioration is inevitable. The Circular no. 29 P. I. dated May 26, 1970 enjoined upon all presiding officers that vehicles should not be detained needlessly and should be given in custody on executing supurdginama. Rule 3. 16 (4) of the Rajasthan Police Rules, 1965 also enjoins upon the prosecuting agency to get necessary orders from the Magistrate concerned for the proper custody of the vehicles involved in the criminal cases. It is a very serious matter and works untold hardship on the persons whose properties are involved. The provisions regarding the disposal of properties of pending and decided cases have been made more comprehensive in the new Code of Criminal Procedure, 1973 vide Chapter XXXIV. If proper vigilance is exercised or care is bestowed, a small note in regard to the condition and description of the malkhana articles which is agreed upon by both the parties may be kept on record, or necessary evidence may promptly be recorded under section 517-A, Code of Criminal Procedure, 1898 or under section 451, Code of Criminal Procedure, 1973, as the case may be, or their photographs may be taken and their negative and positives kept on record. Thereafter, the malkhana articles of the decided cases may be disposed of under section 517 or 518 of the old Code or under Section 452 of the new Code, as the case may be, and malkhana articles of the pending cases may be disposed of or given in custody of proper persons, in suitable cases, under section 516 A of the old Code or under section 451 of the new Code, as the case may be, on their executing supurdginama, bearing necessary court fee of 75 paisa as required under Article 14 of Schedule 2 of Rajasthan Court Fees and Suits Valuation Act, 1959 and reciting terms and conditions, if so required, with or without sureties. It is, therefore, enjoined upon all presiding officers of all courts that malkhana articles of the decided cases be promptly disposed of and articles of the pending cases may be disposed of or given in proper custody as said above and a quarterly statement in the enclosed proforma be regularly sent along with other quarterly returns. The District & Sessions Judges will give their comments in the last column on the reasons given by their subordinate Judicial Officers. " To say the least, the learned Additional Sessions Judge and the learned Munsif Magistrate have passed their orders in utter disregard of the aforesaid law, decisions and circulars. To secure the ends of justice, it is necessary to direct the learned Magistrate to pass necessary order for giving the vehicles in the custody. Accordingly, the petition moved under Section 482, Cr. P. C. is allowed. The orders of the learned Additional Sessions Judge No. 1, Sri Ganganagar dated November 24, 1992 and of the learned Munsif-cum-Judicial Magistrate, Padampur dated September 15, 1992 are quashed. The learned Munsif cum Judicial Magistrate, Padampur will pass necessary order under Section 451, Cr. P. C. within a week of the receipt of a certified copy of this order for the safe custody of the said vehicle in favour of the petitioner on such terms as it may deem fit and proper. . ;