# Mohammad Ashfaq v. State of U.P

- **Citation:** (2020) 9 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-07
- **Case number:** Matters Under Article 227 No. 1944 of 2020
- **Bench:** Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ashfaq-v-state-of-u-p-45955
- **Pages:** 4

## Headnote

A. Article 227 - The petitioner's is the owner
of the truck which was stolen and its engine was
tampered. The application of the petitioner to
release the vehicle was rejected on the ground
that the FIR lodged by the police it is mentioned
that the registration number, engine number,
chasis number are illegible. The High Court
observed that the courts below have not
considered that chasis number mentioned in the
FIR tallies with chasis number mentioned in
registration certificate as well as both the courts
below also have not considered that no fruitful
purpose will be served if the vehicle is kept at
the police station. (Paras 4,8)

Writ Petition Disposed of. (E-10)

List of Cases cited: -

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
learned appellate court of its jurisdiction to
deal with the appeal on its merits. The
learned appellate court erred in law by
dismissing the appeal, on the foot that the
jurisdiction of the learned appellate court
ceased to exist, after the notification was
issued by the State Government on
09.07.2016.

37. The order dated 28.06.2016
passed by the respondent No.2/Forest
Settlement Officer, Sonebhadra as well as
the order dated 22.03.2018 passed by the
learned Additional District Judge, Anpara
at Obara, District-Sonebhadra are arbitrary
and illegal and liable to be set aside and are
set aside.

38. The petition is allowed.

39. The matter is remitted to the
Forest Settlement Officer, Sonebhadra for a
fresh consideration in the light of the above
said directions.

40. The possession of the petitioner
having arazi No. 536 ka, Area 4-0-0 bigha
situated in village- Parsoi, Pargana-Agori,
Tehsil-Robertsganj,
District-Sonebhadra,
shall not be disturbed till a decision of the
Forest Settlement Officer, Sonebhadra. The
petitioner shall use the land only for
agricultural,
forestry
and
residential
purposes till the aforesaid decision.
----------
(2020)09ILR A380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2020

BEFORE

THE HON'BLE ALI ZAMIN, J.

Matters Under Article 227 No. 1944 of 2020
(Criminal)
Mohammad Ashfaq ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Abhishek

Counsel for the Respondent:
G.A.

A. Article 227 - The petitioner's is the owner
of the truck which was stolen and its engine was
tampered. The application of the petitioner to
release the vehicle was rejected on the ground
that the FIR lodged by the police it is mentioned
that the registration number, engine number,
chasis number are illegible. The High Court
observed that the courts below have not
considered that chasis number mentioned in the
FIR tallies with chasis number mentioned in
registration certificate as well as both the courts
below also have not considered that no fruitful
purpose will be served if the vehicle is kept at
the police station. (Paras 4,8)

Writ Petition Disposed of. (E-10)

List of Cases cited: -

1. Sundarbhai Ambalal Desai Vs St. of Guj.
(2002) 10 SCC 283: 2003 (46) ACC 223
(followed)
(Delivered by Hon'ble Ali Zamin, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State
and perused the material available on
record.

2. This petition under Article 227 of
the Constitution of India has been filed by
the
petitioner
for
setting
aside
the
impugned orders dated 30.04.2019 and
19.02.2019, passed by learned Session
Judge, Meerut in Revision No.91 of 2019
and Additional C.J.M., Court No.3, Meerut,
in Case Crime No.0555 of 2018, u/s 411,
414, 420, 467, 468, 471 IPC, P.S. Kithor,
9 All. Mohammad Ashfaq Vs. State of U.P.
381
District Meerut, respectively, and release
the vehicle being Truck No.U.P.57AT1208
of the petitioner seized in Case Crime
No.0555 of 2018, u/s 411, 414, 420, 467,
468, 471 IPC, P.S. Kithor, District Meerut.

3. According to prosecution case,
Truck No.U.P.57AT1208 was stolen and its
engine number was tampered. It is also
alleged that it was recovered from the side
of a road in village Radhna in an unclaimed
condition, regarding which, FIR Case
Crime No.555 of 2019, u/s 411, 414, 420,
467, 468, 471 IPC has been registered at
police station Kithor, District Meerut.

4. Learned counsel for the petitioner
submits that the petitioner is the owner of
Truck No.Truck No.U.P.57AT1208 and he
had moved an application for release of the
vehicle along with registration certificate
but his application was rejected by
Additional Chief Judicial Magistrate-III,
Meerut on the ground that according to
police report the vehicle was found
unclaimed, regarding which, Case Crime
No.0555 of 2019, u/s 411, 414, 420, 467,
471 IPC has been registered. After rejection
of the release application he had filed
Criminal
Revision
No.91
of
2019
(Mohammad Ashfaq vs. State of U.P)
which too was rejected, considering that the
said vehicle was recovered by the police on
30th September, 2018 from the side of a
road in an unclaimed condition and being
checked from the record of the Road Tax
Office, registration number, chassis number
and engine number were found tampered.
Revisionist did not file any report for
disappearance of the vehicle and after
completion of investigation, charge-sheet
has been filed in the Court. The said
vehicle is a case property and case property
will be produced before the Court at the
time of evidence. Revisional court has
opined that the vehicle cannot be released
in favour of the revisionist. He also submits
that in the FIR lodged by the police it has
been mentioned that engine number is
illegible
and
its
chassis
number
is
MAT466488D5C56890 which tallies with
the chassis number mentioned in the
registration certificate. He further submits
that engine number and chassis number are
verified by the registering authority at the
time of registration. Lastly, he submits that
in the intervening night of 29/30-9-2018,
S.I. Shiv Dutt illegally had taken into
custody the truck of the petitioner while
parked on the side of road. Petitioner made
a request to release the same as being
registered owner of the vehicle and he also
showed relevant papers then police made
an illegal demand for release of the vehicle.
On not conceding the illegal demand by
stating that he will get released the vehicle
from the court then police officer became
annoyed, inimical and on his direction, the
other
police
officer
and
constables
destroyed and manipulated engine number
of the petitioner's vehicle.

5. Per contra, learned A.G.A. has
opposed the prayer and submits that in the
order passed by Additional Chief Judicial
Magistrate-III, Meerut,
the report of
Forensic Science has been considered in
which it is mentioned that in addition to
engine number and chassis number, other
chassis number is visible, therefore, proper
order has been passed and petitioner is not
entitled for release of the said vehicle in his
favour.

6. For deciding the instant case, it will
be apt to refer the case of Sundarbhai
Ambalal Desai v. State of Gujrat 2002(10)
SCC 283: 2003 (46) ACC 223, in which,
paras 18 and 21 of the judgment, Hon'ble
Supreme Court has held as under :-
382 INDIAN LAW REPORTS ALLAHABAD SERIES

"18. In case where the vehicle is not
claimed by the accused, owner, or the insurance
company or by third person, then such vehicle
may be ordered to be auctioned by the Court. If
the said vehicle is insured with the insurance
company then insurance company be informed
by the Court to take possession of the vehicle
which is not claimed by the owner or a third
person. If Insurance company fails to take
possession, the vehicles may be sold as per the
direction of the Court. The Court would pass
such order within a period of six months from
the date of production of the said vehicle before
the Court. In any case, before handing over
possession of such vehicles, appropriate
photographs of the said vehicle should be taken
and detailed panchnama should be prepared.

21. However these powers are to
be exercised by the concerned Magistrate.
We hope and trust that the concerned
Magistrate would take immediate action for
seeing that powers under Section 451
Cr.P.C.
are
properly
and
promptly
exercised and articles are not kept for a
long time at the police station, in any case,
for not more than fifteen days to one month.
This object can also be achieved if there is
proper supervision by the Registry of the
concerned High Court in seeing that the
rules framed by the High Court with regard
to such articles are implemented properly."

7. Considering the submission of
learned counsel the parties as well as the
order passed by Additional Chief Judicial
Magistrate-III,
Meerut
and
learned
Revisoinal Court's order, one thing is clear
that no any other person has claimed the
vehicle except the petitioner. In the FIR,
chassis number of the vehicle has been
mentioned which also tallies with the
chassis
number
mentioned
in
the
registration certificate. After registration of
the FIR, expert opinion about the chassis
number and engine number was obtained,
in which report had been submitted to the
aspect that apart from chassis number, other
chassis number is also visible. If it was so
as the expert report has been submitted then
other chassis number also should have been
disclosed in the FIR.

8. Both the courts below have not
considered that chassis number mentioned
in the FIR tallies with chassis number
mentioned in registration certificate as well
as both the courts below also have not
considered that no fruitful purpose will be
served if the vehicle is kept at the police
station. Law laid down by Hon'ble Supreme
Court in Sundarbhai Ambalal Desai v.
State of Gujrat (supra) has a binding
effect on both the courts below but both the
courts below also have not considered the
law laid-down by the Hon'ble Supreme
Court in the above referred case.

9. In view of the above, the impugned
orders
are
not
proper,
hence,
not
sustainable, consequently liable to set
aside. Accordingly, the petition is allowed
and the order dated 30.4.2019, passed by
learned Sessions Judge, Meerut and order
dated 19.02.2019, passed by A.C.J.M.,
Court No.3, Meerut, in Case Crime
No.0555 of 2018, u/s 411, 414, 420, 467,
468, 471 IPC, P.S. Kithor, District Meerut,
are hereby set aside.

10. Learned trial court is directed to
release the said vehicle in favour of the
petitioner on his furnishing a personal bond
and two local sureties each of the like
amount to the satisfaction of the court
concerned with the condition that whenever
it will be required the same shall be
produced before the court.

11. With the aforesaid direction, this
petition
is,
finally,
disposed
of.
9 All. Pawan Kumar Goyal Vs. Neetu
383

12. A copy of this order be transmitted
to the lower court for compliance.
----------
(2020)09ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 2196 of 2020
(Civil)

Pawan Kumar Goyal ...Petitioner
Versus
Neetu ...Respondent

Counsel for the Petitioner:
Satya Prakash Shukla

Counsel for the Respondent:
--

A. Hindu Marriage Act, 1955 - Section 13B
- Guardianship and Wards Act, 1890 -
Section 7/25 - Custody - maintainability of
custody proceedings
The
petitioner
and
respondent
divorced
mutually. The respondent voluntarily gave the
custody of their minor child to the petitioner.
Suddenly she had a change of heart and
instituted proceedings for custody for her child.
The trial court rejected the objection filed by the
petitioner to the maintainability of custody
proceedings on the ground that the welfare and
best interests of a child cannot be bartered
away by two parties, even in a consent
agreement. The High Court did not find any
perversity in the order passed by the trial court
as the welfare of the child is the paramount
concern of any court which can only be decided
after a searching enquiry by the court. An
enquiry of this nature requires exchange of
pleadings and reception of evidence, and
fulsome consideration of relevant issues by the
learned trial court. (Paras 5, 8, 10, 11, 12)
Writ Petition disposed of. (E-10)
List of Cases cited: -

1. Mrs. Annie Besant Vs G. Narayaniah AIR 1914
PC 41

(Delivered by Hon'ble Ajay Bhanot, J.)

1. By the impugned order dated
14.01.2020 passed by the learned Principal
Judge,
Family
Court,
Hapur,
the
preliminary objection of the petitioner to
the maintainability of the proceedings for
custody of minor child Anni @ Awani,
under Section 7/25 of the Guardianship and
Wards Act, registered as Misc. Case No. 38
of 2019, Smt. Neetu Vs. Pawan, has been
rejected.

2. The background facts are these.

3. The petitioner and the respondent
had agreed to divorce, on mutually
acceptable terms.

4. The learned Principal Judge,
Family Court, Hapur, by judgment and
decree dated 24.04.2019, allowed the
application of the petitioner and the
respondent for divorce by mutual consent,
under Section 13 B of the Hindu Marriage
Act.

5. One of the agreed terms of the
divorce by mutual consent, was that the
custody of the minor child Anni @ Awani,
would be voluntarily made over by the
respondent Neetu, to the petitioner Pawan
Kumar Goyal. The custody of the minor
child Anni @ Awani, was handed over
voluntarily by the respondent Neetu, to her
husband Pawan Kumar Goyal in court on
29.10.2018.

6. After the annulment of their
marriage, the petitioner and the respondent