R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE9H DAY OF JANUARY, 2020 BEFORE THE HONBLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL PETITION No.201009 OF2019Between : Syed Abdul Khadir, S/o Syed Abdul Khadar, Age:
28. years, Occ: Business, R/o Zam Zam Colony, Kalaburagi-585 102. ( By Sri Santosh S. Kasar for Sri Mahantesh H. Desai, Advocate ) And: The State of Karnataka, Through Hullsur P.S. Tq: Basavakalyan, Dist: Bidar, Represented by Addl.SPP High Court of Karnataka Kalaburagi Bench-585 102. ( By Sri P.S.Patil, HCGP) ..... Petitioner
.. Respondent This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the order dated 29.04.2019, passed by the Honble Court of Senior Civil Judge & JMFC, Basavakalyan, in Crime No.20/2019, dismissing the application under Section 457 of Cr.P.C. and further set aside the order passed by the Honble Court of II Crl.P.No.201009/2019 2 Judge, Bidar, Addl.District & Sessions sitting at Basavakalyan in Crl.Revision Petition No.41/2019, dated 01.07.2019, confirming the order of Senior Civil Judge and JMFC, Basavakalyan and consequently allow the petition filed under Section 457 of Cr.P.C. and ordered to release the vehicle bearing Reg. KA-32-M-7461 of Chevrolet Tavera LTL1-9 in favour of petitioner. This Criminal Petition coming on for Admission this day, the court made the following: ORDER Probationary Deputy Superintendent of Police of the respondent-Police Station lodged a written complaint before the respondent-Police on 1.2.2019 at 12.45 hours.
2. The summary of the said complaint is that on 1.2.2019, at about 4.10 a.m., while he was on the night patrolling, he noticed a motorcar coming from Mirkal village towards Belur Village. The complainant who was in his Jeep along with other staff, in order to stop the car and check it, got down from the Jeep, at that time, the inmates of the Car noticing the police in Uniform, took a turn and attempted to flee away. Crl.P.No.201009/2019 3 However, the complainant and his staff chased them and could able to stop the said car at a distance, at that time, about five to six inmates got down from the car and aimed their weapon at the police staff. When these police also got down of their Jeep with their arms, the inmates of the car ran away from the place. The complainant brought the said car by toeing it to the respondent-Police and joined by the additional staff, proceeded to the place of incident and searched for the accused, but could not able to trace them. However, he drew a panchanama in the presence of panchas. The motorcar used by the alleged accused was also inspected and it was noticed that in the said car, there was a dead body of a Deer with bullet injury and one more cut head of the Deer, the cut portion/muscles of a Deer in two bags and 23 empty cartridges of .22 Rifle cocas and 60 live bullets of .22 Rifle and Indian Arms Licence No.3, Crl.P.No.201009/2019 4 standing in the name of Mohammad Jafar Ali, son of Mohammad Alitippu Sultan. The complaint was registered in the respondent-Police Station in Crime No.9/2019, for the offences punishable under Sections 9 and 51 of Wild Life (Protection) Act, 1972 (hereinafter for brevity referred to as `Wild Life Act), Sections 307, 353 read with Section 149 of Indian Penal Code, (hereinafter for brevity referred to as `IPC) and under Section 30 of Arms Act, 1959.
3. FIR was submitted to the jurisdictional Magistrate, before whom the present petitioner filed an application under Section 457 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.), seeking release of the motorcar seized by the complainant-Police in the matter. However, the learned Magistrate by his order dated 29.4.2019, rejected the said application. Aggrieved by the same, the petitioner preferred a Criminal Revision Petition Crl.P.No.201009/2019 5 No.41/2019, under Section 397 of Cr.P.C. before the learned II Addl.District & Sessions Judge, Bidar, sitting at Basavakalyan. The learned Sessions Judge by his order dated 1.7.2019, rejected the said Revision Petition. It is against the said orders passed by the lower Courts, the present petitioner has preferred this Criminal Petition under Section 482 of Cr.P.C.
4. Learned counsel for the petitioner in his argument submitted that until and unless it is proved that the alleged vehicle seized by the police was involved in the alleged commission of the crime, the State cannot retain the vehicle as its property. As such, the Courts below were at an error in rejecting the application of the petitioner filed seeking the release of the vehicle. In his support, he relied upon an order passed by a Coordinate Bench of this Court in Criminal Petition No.8713/2018 and connected matters, disposed of on 1.2.2019 (Annappa vs. The Crl.P.No.201009/2019 6 State Through the Range Forest Officer and another).
5. Per contra, learned High Court Government Pleader appearing for the respondent-Police submitted that by virtue of Section 39 (d) of the Wild Life Act, the seized property, which is the car in the instant case, becomes the property of the State Government, as such, both the Courts below have rightly rejected the application of the petitioner seeking release of the vehicle. Section 39(d) of the Act reads as below: Section 39. Wild animals, etc., to be Government property.- (1) Every (a) (b) (c) xxx xxx xxx (d) : vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act, shall be the property of the State Government, and, where such animal is hunted in a Crl.P.No.201009/2019 7 sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal, or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government. A careful reading of the said Section go to show that no doubt the vehicle that has been used for committing an offence and which has been seized under the provisions of the Act becomes the property of the State Government, but, the said vehicle before becoming the property of the State Government should have been proved to have been used for committing an offence and that it was seized under the provisions of the Act. In the instant case, admittedly the trial is not yet begun, but, the petitioner herein has sought for interim custody of the vehicle. Crl.P.No.201009/2019 8 6. In a similar circumstance, this Court in Annappas case (supra), after relying upon the judgment of Honble Apex Court in Principle Chief Conservator of Forest and another vs. J.K.Johnson & others, decision rendered on 17.10.2011, in Civil Appeal No.2534/2011, and also after relying upon one more judgment of the Honble Apex Court in State of M.P. and others vs. Madhukar Rao, reported in [(2008) 14 SCC624, was pleased to observe at Paragraph-7 as below:
7. Having regard to the above stated facts and rival contentions raised, it would suffice to say that Honble Apex Court in J.K.Johnson case referred to supra having referred to Madhukar Raos case rendered by the Full Bench of Madhya Pradesh High Court which was in the background of Section 39(1)(d) of Wild Life (Protection) Act, whereunder it came to be held that any property including vehicle seized on accusation or suspicion of a commission of offence under 1972 Act can be released by the learned Magistrate pending Crl.P.No.201009/2019 9 trial in accordance with Section 50(4) read with Section 451 of the Code and the seizure of any property including the vehicle on the charge of commission of offence would not make such property to be property of the State under Section 39(1)(d) of the Act has arrived at a conclusion that Section 39(1)(d) which is relevant for confiscating would come into play only after Competent Court of jurisdiction found that accusation and allegations made against the accused were true and recorded a finding that seized article was, as a matter of fact, used in the commission of an offence. In the instant case also, since the trial has not yet commenced and it is not proved that the vehicle in question was used for the alleged commission of crime, I am of the view that the Courts below were not justified in rejecting the application of the present petitioner even after making an observation that the petitioner has placed material, including the RC book copy to show that he is the owner-cum- RC holder of the vehicle in question. Crl.P.No.201009/2019 10 7. Accordingly, I am of the view that the application filed by the petitioner under Section 457 of Cr.P.C. in the trial Court deserves to be allowed, however, with the conditions to ensure the production of the said vehicle as and when required without any change in the nature, condition and appearance of the vehicle.
8. Accordingly, I proceed to pass the following order: ORDER The Criminal Petition is allowed. The order dated 29.4.2019, passed by the learned Senior Civil Judge & JMFC, Basavakalyan, on the application filed by the petitioner under Section 457 of Cr.P.C. in Crime No.20/2019 of the respondent-Police Station and the order dated 1.7.2019, passed by the learned II Addl.District & Sessions Judge Bidar, sitting at Basavakalyan, in Criminal Revision Petition Crl.P.No.201009/2019 11 No.41/2019, are set aside. The application filed by the petitioner under Section 457 of Cr.P.C. is partly allowed and the motorcar bearing registration No.KA-32-M-7461, be released to the interim custody of the petitioner, subject to the following conditions : (a) He shall execute a personal bond for a sum of `5 lakhs along with two sureties for the like sum to the satisfaction of the trial Court. (b) He shall furnish an irrevocable Bank guarantee for a sum of `5 lakhs, which is said to be the value of the Car, in favour of the trial Court. (c) He shall not change the colour, appearance, shape, dimension, specifications of the car in any manner. (d) He shall ensure and maintain that the Car would be in the same condition as it was when it was seized by the respondent- Police. Crl.P.No.201009/2019 12 (e) He shall not alienate, transfer or create any charge as against the said Car in favour of anybody. (f) He shall not make use of the said Car in the commission of any crime or offence. (g) He shall produce the said Car at his own cost before the trial Court as and when summoned. (h) He shall produce four colour photographs of the car from all the four directions and angle clearly showing the original colour of the Car with its registration number and those photographs shall not be less than a dimension of 5 x 7 excluding its margin/borders. Sd/- JUDGE bk/