# Mohd. Danish Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Criminal Revision No. 3618 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-danish-revisionist-v-state-of-u-p-ors-48512
- **Pages:** 6

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Sections 451 & 457- U.P. Pradesh
Prevention of Cow Slaughter Act, 1955 (in
short "Act of 1955")- Section 3/5A/8 --
Release Application
before
the
Chief
Judicial Magistrate, Chandauli rejected- It
is not disputed that the power under
Section 451 of Cr.P.C. is not properly and
widely used by the court below while
passing the orders. The power conferred
under Section 451 of Cr.P.C. be exercised
by the court below with judicious mind
and without any unnecessarily delay, so
that the litigant may not suffer. Merely
keeping the article in the custody of the
police in the open yard will not fulfill any
purpose and ultimately it result the
damage of the said property. The owner of
the property be allowed to enjoy the fruits
of the said property for the remaining
period for which the property is being
made.

Keeping in custody the seized vehicle because it
was allegedly used in the commission of the
alleged offence would not serve any purpose
and it is incumbent upon the courts to release
the same by exercising the power u/s 451 of the
CrPc.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
457-
U.P.
Pradesh Prevention of Cow Slaughter Act,
1955 (in short "Act of 1955"), Prevention
of Cruelty of Animals Act, 1960 - Section
11- As per the amendment made in
Section 5 (A) of the Act, 1955 in year
2020, now the power lies with the District
Magistrate to seize or release the vehicle.
It would be tried by the competent court
and thereby taking note of Section 7 and
5A of Act of 1955, the seized vehicle can
be released by the court which would try
the case by exercising powers, as exist
under section 457 Cr.P.C.- Undisputedly
the revisionist is the registered owner of
the seized vehicle and the ownership of
the vehicle is not in dispute, neither the
State or any other person has claimed
their
ownership
over
the
vehicle,
therefore, no useful purpose will be
served in keeping the vehicle stationed at
the police station in the open yard for a
long period allowing it to be damaged
with the passage of time.

Where the ownership of the seized vehicle is not
in dispute the same can also be released by the
District Magistrate who may exercise the powers
u/s 457 of the CrPc while also taking note of
Section 7 and 5A of the Act 1955, as the vehicle
is liable to suffer damage while being stationed
under custody and the same will not serve any
purpose.

Criminal Revision accordingly allowed. (E3)

Judgements/ Case law relied upon:-

## Text

280 INDIAN LAW REPORTS ALLAHABAD SERIES
report, the injuries sustained by the injured
are grievous in nature.

9. This is a pre-cognizance stage,
where the Magistrate has not taken the
cognizance
of
the
offence.
Chargesheet/police report u/s 173(2) of Cr.P.C. is
nothing which is simply an opinion of the
Investigating Officer based on the material
collected during investigation and it is not
binding or mandatory upon the Magistrate.
The Magistrate may or may not agree with
the opinion of the Investigating Officer. It
is clear that the cognizance of the offence
was taken on 01.2.2021, responding to the
application moved by the informant dated
31.5.2019. Prior to this, there was no
cognizance
order
on
record.
The
Magistrate has every right to defer his
opinion
from
the
opinion
of
the
Investigating Officer, on the basis of
material on record by passing a speaking
order.

10. I have perused the order
impugned,
which
reflects
judicial
application of mind by the learned
Magistrate.
Learned
Magistrate
after
assessing the entire material collected
during
investigation
found
that
Investigating
Officer
has
wrongly
submitted charge sheet u/s 323, 324, 325,
504, 506 I.P.C., which was not in
consonance with the gravity of offences
made out on the basis of material collected
during investigation.

11. After appreciated the material on
record
and
the
application,
learned
Magistrate was not in agreement with the
opinion formed by the Investigating
Officer of the case and has dropped
Section 325 I.P.C. and replaced it by
Section 326 of I.P.C., in addition to
Sections 323, 324, 504, 506 I.P.C. I do not
find any illegality or infirmity in the
impugned order. Taking into account the
totality of circumstances, I am not inclined
to upset the order impugned or substitute
the discretion exercised by the learned
Magistrate.

12. However, it is given to understand
that the revisionists Kamil and Alim have
got themselves bailed out in Sections 323,
324, 326, 504, 506 I.P.C., except Yunus, as
such, revisionist Yunus is directed to
surrender before the court concerned by
15.6.2022 and apply for bail in added
Section 326 I.P.C., which shall be heard
and decided by the concerned court below
on the same day.

13. It is open for the revisionists that
after getting themselves bailed out, they
may take recourse of the appropriate
provisions of the Code of Criminal
Procedure at appropriate stage for seeking
discharge, if so advised.

14. With the above observation this
revision stands disposed off.
----------
(2022)05ILR A280
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 3618 of 2021

Mohd. Danish ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bibhuti Narayan Singh

Counsel for the Opposite Parties:
5 All. Mohd. Danish Vs. State of U.P. & Ors.
281
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Sections 451 & 457- U.P. Pradesh
Prevention of Cow Slaughter Act, 1955 (in
short "Act of 1955")- Section 3/5A/8 --
Release Application
before
the
Chief
Judicial Magistrate, Chandauli rejected- It
is not disputed that the power under
Section 451 of Cr.P.C. is not properly and
widely used by the court below while
passing the orders. The power conferred
under Section 451 of Cr.P.C. be exercised
by the court below with judicious mind
and without any unnecessarily delay, so
that the litigant may not suffer. Merely
keeping the article in the custody of the
police in the open yard will not fulfill any
purpose and ultimately it result the
damage of the said property. The owner of
the property be allowed to enjoy the fruits
of the said property for the remaining
period for which the property is being
made.

Keeping in custody the seized vehicle because it
was allegedly used in the commission of the
alleged offence would not serve any purpose
and it is incumbent upon the courts to release
the same by exercising the power u/s 451 of the
CrPc.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
457-
U.P.
Pradesh Prevention of Cow Slaughter Act,
1955 (in short "Act of 1955"), Prevention
of Cruelty of Animals Act, 1960 - Section
11- As per the amendment made in
Section 5 (A) of the Act, 1955 in year
2020, now the power lies with the District
Magistrate to seize or release the vehicle.
It would be tried by the competent court
and thereby taking note of Section 7 and
5A of Act of 1955, the seized vehicle can
be released by the court which would try
the case by exercising powers, as exist
under section 457 Cr.P.C.- Undisputedly
the revisionist is the registered owner of
the seized vehicle and the ownership of
the vehicle is not in dispute, neither the
State or any other person has claimed
their
ownership
over
the
vehicle,
therefore, no useful purpose will be
served in keeping the vehicle stationed at
the police station in the open yard for a
long period allowing it to be damaged
with the passage of time.

Where the ownership of the seized vehicle is not
in dispute the same can also be released by the
District Magistrate who may exercise the powers
u/s 457 of the CrPc while also taking note of
Section 7 and 5A of the Act 1955, as the vehicle
is liable to suffer damage while being stationed
under custody and the same will not serve any
purpose.

Criminal Revision accordingly allowed. (E3)

Judgements/ Case law relied upon:-

1. Sunderbhai Ambalal Desai & C.M. Mudaliar Vs
St. of Guj, AIR 2003 SC 638.

2. Nand Vs St. of U.P., 1996 Law Suit (All) 423

3. Kamaljeet Singh Vs St. of U.P., 1986 U.P. Cri.
Ruling 50 (Alld),

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
revisionist, learned A.G.A. for the opposite
party and perused the record.

2. This criminal revision has been
filed by the revisionist against the judgment
and order dated 30.10.2021 passed by the
Chief Judicial Magistrate, Chandauli in
Vehicle Release Application No. 479 of
2021 (State of U.P.Vs. Mustafa and others)
and release the vehicle of the the revisionist
bearing registration no. U.P. 21CN-2082
Truck (closed body) within time specify by
this Hon'ble Court.

3. Learned counsel for the revisionist
has submitted that the revisionist is the
registered
owner
of
Truck
bearing
282 INDIAN LAW REPORTS ALLAHABAD SERIES
registration No. U.P. 21CN-2082 and the
said vehicle is having National Permit and
also was insured with the New Indian
Assuarance Company Limited and also
having certificate of pollution and fitness.

4. Learned counsel for the revisionist
further submits that an the opposite party
no.3 lodged an F.I.R. bearing F.I.R. No.
0095 of 2021 under Section 3/5A/8 U.P.
Pradesh Prevention of Cow Slaughter Act,
1955 (in short "Act of 1955"), under
Section 11 of the Prevention of Cruelty of
Animals Act, 1960 and under Section 379,
411 I.P.C. Police Station, Ali Nager,
District Chandauli against one Mustafa and
two others namely Mohd. Sohrab and
Washir Ali in which vehicle of the
revisionist alleged to have been involved.

5. Learned counsel for the revisionist
further submits that the revisionist was also
made an accused being owner of the
vehicle and he has been released on bail
and further submits that the revisionist has
moved a release application before the
Chief Judicial Magistrate, Chandauli.

6. Learned counsel for the revisionist
further submits that the release application
of the revisionist was rejected by the Chief
Judicial
Magistrate,
Chandauli
on
30.10.2021 on the ground that the District
Magistrate will have power to do all
proceedings of confiscation and released of
the vehicle.

7. Learned counsel for the revisionist
has submitted that the vehicle is standing in
open yard in the police station since long
and with the passage of time ultimately it
will become junk and after sometime it is
not useful for any purpose. Reliance has
been placed on the law laid down by the
Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai and C.M.
Mudaliar Vs. State of Gujrat, AIR 2003
SC 638.

8. Learned counsel for the revisionist
has further drawn the attention of the Court
regarding the provisions of Sections 451
and 457 of Cr.P.C., which is quoted as
under:-

"451. Order for custody and
disposal of property pending trial in certain
cases. When any property is produced
before any Criminal Court during any
inquiry or trial, the Court may make such
order as it thinks fit for the proper custody
of such property pending the conclusion of
the inquiry or trial, and, if the property is
subject to speedy and natural decay, or if it
is otherwise expedient so to do, the Court
may, after recording such evidence as it
thinks necessary, order it to be sold or
otherwise disposed of.

Explanation.- For the purposes of
this section," property" includes-

(a) property of any kind or
document which is produced before the
Court or which is in its custody,

(b) any property regarding which
an offence appears to have been committed
or which appears to have been used for the
commission of any offence.

457. Procedure by police upon
seizure of property.

(1) Whenever the seizure of
property by any police officer is reported to
a Magistrate under the provisions of this
Code, and such property is not produced
before a Criminal Court during an inquiry
or trial, the Magistrate may make such
order as he thinks fit respecting the disposal
of such property or the delivery of such
property to the person entitled to the
possession thereof, or if such person cannot
be ascertained, respecting the custody and
5 All. Mohd. Danish Vs. State of U.P. & Ors.
283
production of such property.(2) If the
person so entitled is known, the Magistrate
may order the property to be delivered to
him on such conditions (if any) as the
Magistrate thinks fit and if such person is
unknown, the Magistrate may detain it and
shall, in such case, issue a proclamation
specifying the articles of which such
property consists, and requiring any person
who may have a claim thereto, to appear
before him and establish his claim within
six months from the date of such
proclamation."

9.

Learned
counsel
for
the
revisionist has further submitted that the
revisionist is ready to comply with all the
conditions, which the lower court will
impose while releasing the vehicle.
Undisputedly, revisionist is the rightful
owner of the vehicle, therefore, the
vehicle be released in his favour and the
impugned order be quashed.

10. Learned A.G.A. has opposed the
prayer and detailed counter affidavit has
been filed. In the counter affidavit it has
been stated that the said vehicle of the
revisionist has been involved in Case
Crime No.95 of 2021 and if the said
vehicle is released, there would be
possibility to use the said vehicle in
another crime in future and therefore, the
vehicle cannot be released in favour of
the revisionist.

11. In the rejoinder affidavit filed by
the revisionist, it has been stated by the
learned counsel for the revisionist that
revisionist is an innocent person and has
been falsely implicated in the case and the
vehicle has nothing do with the alleged
offence, therefore, the entire proceedings is
against the process of law and is liable to
be quashed.

12. After having heard the learned
counsel for the parties, I have carefully
gone through the relevant legal provisions
and the judgments rendered by the Hon'ble
Apex Court in the case of Sunderbhai
Ambalal Desai (supra).

13. The Hon'ble Apex Court in the
case of Sunderbhai Ambalal Desai, AIR
2003 SC 638 (supra) in para 17 and 21 has
been pleased to hold as under:-

"17. In our view, whatever be the
situation, it is of no use to keep such seized
vehicles at the police stations for a long
period. It is for the Magistrate to pass
appropriate orders immediately by taking
appropriate bond and guarantee as well as
security for return of the said vehicles, if
required at any point of time. This can be
done pending hearing of application for
return of such vehicles.

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."

14. In Nand Vs. State of U.P., 1996
Law Suit (All) 423 this Court has observed
that
pendency
of
the
confiscation
proceedings under Section 72 of the U. P.
Excise Act is not a bar for release of the
vehicle which is required for the trial under
Section 60 of the U. P. Excise Act. It has
284 INDIAN LAW REPORTS ALLAHABAD SERIES
been clearly observed by this Court in para
7 that:-

"I think it is not proper to allow
the truck to be damaged by remaining
stationed at police station. Admittedly, the
ownership of the truck is not disputed. The
State of Uttar Pradesh does not claim its
ownership. Therefore, I think it will be
proper and in the larger interest of public as
well as the revisionist that the revisionist
gives a Bank guarantee of Rs. 2 lakhs
before the C.J.M., Kanpur Dehat and files a
bond that he shall be producing the truck as
and when needed by the criminal courts or
the District Magistrate, Kanpur Dehat, and
he shall not make any changes nor any
variation in the truck."

This Court further has held in the
case of Jai Prakash Vs. State of U.P., 1992
AWC 1744 that mere pendency of
confiscation
proceedings
before
the
Collector is no bar to release the vehicle.

15. In Kamaljeet Singh Vs. State of
U.P., 1986 U.P. Cri. Ruling 50 (Alld), the
same view was taken by this court that
pendency of confiscation proceedings shall
not operate as bar against the release of
vehicle seized u/s 60 of Excise Act.

16. In the opinion of this Court, it is
not disputed that the power under Section
451 of Cr.P.C. is not properly and widely
used by the court below while passing the
orders. The power conferred under Section
451 of Cr.P.C. be exercised by the court
below with judicious mind and without any
unnecessarily delay, so that the litigant may
not suffer. Merely keeping the article in the
custody of the police in the open yard will
not fulfill any purpose and ultimately it
result the damage of the said property. The
owner of the property be allowed to enjoy
the fruits of the said property for the
remaining period for which the property is
being made.

17. It is further observed that as per
the amendment made in Section 5 (A) of
the Act, 1955 in year 2020, now the power
lies with the District Magistrate to seize or
release the vehicle. The facts on record
show that a case has been registered against
one Mustafa and two others namely Mohd.
Sohrab and Washir Ali in which vehicle of
the revisionist alleged to have been
involved bearing F.I.R. No. 95 of 2021
under
Section
3/5A/8
U.P.
Pradesh
Prevention of Cow Slaughter Act, 1955 (in
short "Act of 1955"), under Section 11 of
the Prevention of Cruelty of Animals Act,
1960 and under Section 379, 411 I.P.C.
Police
Station,
Ali
Nager,
District
Chandauli. It would be tried by the
competent court and thereby taking note of
Section 7 and 5A of Act of 1955, the seized
vehicle can be released by the court which
would try the case by exercising powers, as
exist under section 457 Cr.P.C.

18. No purpose remains to keep the
vehicle stationery during the period of trial
and therefore release of vehicle can be
permitted in a given case by the court
trying the case.

19. Further in the opinion of this
Court, the procedure as contemplated under
Section 457 of Cr.P.C. be also followed
promptly, so that the concerned Magistrate
may take prompt decision for disposal of
such properties and be released in favour of
the entitled person of the said property.
Keeping the said property in the custody
will not solve any purpose and that gives a
mental and financial torture to the owner of
the said property which is also against the
law and against the principles of natural
justice.
5 All. Smt. Ghyanti & Anr. Vs. H.D.F.C. General Insurance Company Ltd. Kanat Place, New
 Delhi & Anr.
285

20. As per the legal propositions
mentioned above and keeping in view this
fact that undisputedly the revisionist is the
registered owner of the seized vehicle and
the ownership of the vehicle is not in
dispute, neither the State or any other
person has claimed their ownership over
the vehicle, therefore, no useful purpose
will be served in keeping the vehicle
stationed at the police station in the open
yard for a long period allowing it to be
damaged with the passage of time.

21. In view of the above facts and
circumstances of the case, the impugned
order is not sustainable in the eyes of law
and require interference by this court.

22. Accordingly, the criminal revision
is allowed and the impugned order dated
30.10.2021 passed by Chief Judicial
Magistrate, Chandauli is set aside and the
case is remitted back to the concerned court
to pass a fresh speaking and reasoned order
keeping in view of the settled law laid
down by Hon'ble Apex Court in the case
of Sunderbhai Ambalal Desai, AIR 2003
SC 638 within a period of two months from
the date of production of certified copy of
this order in accordance with law.
----------
(2022)05ILR A285
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 276 of 2013

Smt. Ghyanti & Anr. ...Appellants
Versus
H.D.F.C. General Insurance Company Ltd.
Kanat Place, New Delhi & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Ram Singh, Sri Daya Ram Yadav

Counsel for the Resondents:
Sri Pranjal Mehrotra

A. Motor Accident Claim - Compensation -
Term 'Negligence' - Meaning - Negligence
means failure to exercise required degree
of care expected of a prudent driver.
Negligence
is
the
omission
to
do
something
which
a
reasonable
man,
guided upon the considerations, which
ordinarily regulate conduct of human
affairs, would do, or doing something
which a prudent and reasonable man
would not do. Negligence is not always a
question of direct evidence, it is an
inference to be drawn from proved facts.
Negligence is not an absolute term, but is
a relative one, it is rather a comparative
term. (Para 6)

B. Motor Accident Cases - Hit and run
cases - Frequent use of vehicle on road -
Principle of liability - Rule of res-ipsa
loquitor - Applicability - Held, in view of
the fast and constantly increasing volume
of traffic, motor vehicles upon roads may
be regarded, to some extent, as coming
within the principle of liability defined in
Rylands's case - 'Hit and run' cases where
drivers of motor vehicles who have caused
accidents, are unknown - Court cannot
dispense
with
proof
of
negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits. (Para 9 and 10)

C. Motor Accident Claim - Cause of
accident - Reasonable care - Burden of
proof, on whom lie - Held, the burden of