Sheeja v. State of Kerala

Crl.M.C.No.2749 of 2022 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 CRL.MC NO. 2749 OF 2022 [AGAINST THE ORDER DATED 16.03.2022 OF THE TEMPORARY JUDICIAL MAGISTRATE OF FIRST CLASS, ATTINGAL IN CMP 666/2022 IN CRIME NO.88/2021 OF KALLAMBALAM POLICE STATION] ## PETITIONER/PETITIONER: SHEEJA AGED 51 YEARS D/O. ABDUL AZEEZ, MUKKUKADA VEEDU, CHULLIMANOOR, ANADU, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT., PIN – 695541 BY ADV SHAJIN S.HAMEED ## RESPONDENT/RESPONDENT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 BY SRI. C.S.HRITHWIK- SR.PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2749 of 2022 2 ## O R D E R The petitioner who is the owner of Mahendra Bolero Maxi Truck (goods carrier) vehicle bearing Registration No.KL-39 J-6695 has approached this Court challenging Annexure-D order passed by the Temporary Judicial First Class Magistrate Court, Attingal. As per the aforesaid order, an application submitted by the petitioner under Section 451 of the Code of Criminal Procedure Code (Cr.PC) was rejected by the learned Magistrate. 2. The facts leading to the aforesaid order as follows: The vehicle belonging to the petitioner was entrusted to the accused who was a professional driver to ply on rental basis. It is alleged that, on 1.2.2022 at 1.00 hour, the said driver while driving the vehicle voluntarily hit at one Ajith and Pramod due to enmity. In the said Crl.M.C.No.2749 of 2022 3 incident, one of the injured died. The vehicle was seized by the Police and in connection with the said incident, Crime No.88/2022 was registered by the Kallambalam Police Station for the offences punishable under Sections 324,307 and 302 of the Indian Penal Code (IPC). Annexure-C is the petition submitted by the petitioner seeking the custody of the aforesaid vehicle under Section 451 of Cr.PC and as per Annexure-D the said application was dismissed. This Crl.M.C. is filed in such circumstances. 3. Heard both sides. 4. The learned counsel for the petitioner submits that, the petitioner is not an accused and the reason cited by the learned Magistrate for refusing to release the vehicle in her favour is not legally sustainable. It is pointed out that, it is a commercial vehicle and she is Crl.M.C.No.2749 of 2022 4 prepared to abide any conditions for preserving the vehicle intact. 5. On the other hand, the learned Public Prosecutor would oppose the same. It is pointed out that, the specific case of the prosecution is that the vehicle itself was used as a weapon for committing the offence. If the vehicle is released to the petitioner, there is every possibility that the same may be subjected to modification and thereby it would prejudice the prosecution during the course of trial. In such circumstances, the learned Public Prosecutor seeks dismissal of this Crl.M.C. 6. I have gone through the records. It is true that, the allegation in the aforesaid crime is that the said vehicle was used as a weapon for committing the offence. It is reported that the investigation is completed and a final report has been submitted by the prosecution Crl.M.C.No.2749 of 2022 5 before the Jurisdictional Magistrate and committal proceedings are pending. In such circumstances, as the investigation is already over, it is not necessary for the prosecution to keep the same in custody. It is true that, the production of the vehicle may be necessary at the time of trial so as to establish the prosecution case against the accused. The alteration, if any, made would also cause prejudice to the prosecution, as pointed out by the learned Public Prosecutor. However, merely because of that reason, the vehicle need not be kept in the Police Station exposing to the weather conditions. Even by permitting the same to be retained in the custody, the condition of the vehicle would get altered by getting exposed to the weather conditions. In such circumstances, it is only proper that the same be entrusted to some one who can preserve the Crl.M.C.No.2749 of 2022 6 same and who is also prepared to keep the vehicle in the same condition. Apart from the above, the condition of the vehicle at the time of its release can be recorded by taking photographs of the vehicle from all angles and also preparing a detailed Mahazar specifically mentioning the specific features of the said vehicle. 7. It is also to be noted in this regard that In Sundarbhai Ambalal Desai v. State of Gujrat [(2002) 10 SCC 283], the Honourable Supreme Court deprecated the practice of keeping the motor vehicles seized in connection with the investigation of the cases in the police station for longer periods. Thus, keeping the spirit of the principles laid down by the Hon’ble Supreme Court, I am of the view that, this Crl.M.C. can be allowed subject to certain conditions. Crl.M.C.No.2749 of 2022 7 8. In the result, Annexure-D order passed by the Temporary Judicial First Class Magistrate Court, Attingal is hereby set aside and the vehicle is directed to be released to the petitioner subject to the following conditions: i) The petitioner shall produce attested copies of Registration Certificate as well as Insurance Policies before the learned Magistrate; ii) A bond for Rs.2,00,000/- shall be executed by the petitioner with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate; iii) The petitioner shall not alienate the said vehicle without prior permission from the learned Magistrate; Crl.M.C.No.2749 of 2022 8 iv) The petitioner shall not make any alteration of the said vehicle and the colour and basic characteristics of the vehicle shall also not be changed; v) The petitioner shall produce the said vehicle as and when required by the court. vi) Before releasing the vehicle, the photographs of the said vehicle shall be taken from all angles and a Mahazar shall also be caused to be prepared by the Station House Officer concerned specifically indicating the peculiar features and conditions of the vehicle as on the date of release. Sd/- ZIYAD RAHMAN A.A.,JUDGE pkk Crl.M.C.No.2749 of 2022 9 ## APPENDIX OF CRL.MC 2749/2022 PETITIONER’s ANNEXURES Annexure-A PHOTOCOPY OF THE SALE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE REGISTERED OWNER. Annexure-B PHOTOCOPY OF THE FIR IN CRIME NO.88/2022 OF KALLAMBALAM POLICE STATION. Annexure-C PHOTOCOPY OF THE PETITION CMP.NO.666/2022 FILED BY THE PETITIONER BEFORE THE TEMPORARY JUDICIAL 1ST CLASS MAGISTRATE COURT, ATTINGAL. Annexure-D CERTIFIED COPY OF THE ORDER DATED16/03/2022 IN CMP.NO.666/2022 OF THE TEMPORARY JUDICIAL 1ST CLASS MAGISTRATE COURT, ATTINGAL.