# Mujtaba Ali Khan Revisionist v. Jud. Magistrate-III, Lko. & Ors

- **Citation:** (2023) 3 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Crl. Revision No. 232 of 2023
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mujtaba-ali-khan-revisionist-v-jud-magistrate-iii-lko-ors-49899
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 397 r.w. section
401 - Revision , Section 451 - Order for
custody and disposal of property pending
trial in certain cases , Indian Penal Code,
1860 - Section 279, 337, 427 - It is of no
use to keep a seized vehicle at police
station for a long period - Magistrate must
release vehicle after taking sufficient
guarantee/surety - production of the
vehicle
not
necessary
during
trial
-
photograph of the vehicle would be
sufficient to be proved in evidence.(Para -
10,16)

Revisionist is the registered owner of a
vehicle - involved in an accident - lodged FIR
against unknown person - vehicle was seized
and detained - vehicle of revisionist kept in
police custody for about approximately 3
years
and
6
months
-
application
by
revisionist for release of vehicle - Magistrate
rejected application - ground - accused failed
to surrender & driver's license was not
verified.(Para - 3 to 10)

HELD:- Revisionist entitled to the possession of
the seized vehicle, which is related to the
accident matter. Magistrate has no power to
enquire about the validity of the driver's license
and pollution certificate, as he is not a police
officer or transport department officer.(Para -
15)

Criminal revision allowed. (E-7)

List of Cases cited:

## Text

3 All. Mujtaba Ali Khan Vs. Jud. Magistrate-III, Lko. & Ors.
999
much
stronger
evidence
than
mere
probability of complicity.

20. The Apex Court later on, in case of
Brijendra Singh and Others (Supra) has also
discussed the law enunciated in Hardeep
Singh's case and has held that power under
Section 319 CrPC can be exercised by the trial
Court at any stage during the trial and any
person can be summoned as an accused for
facing the trial. The Apex Court has very
clearly held that the word 'evidence' means the
material brought before the Court during trial.
The
material/evidence
collected
by
the
Investigating Officer at the stage of enquiry can
only be utilised for corroboration thereof.

21. When this Court examines the instant
matter in its facts and in the law propounded by
the Apex court, it borne out that the learned trial
Court while passing the impugned order has
considered the statement of the complainant
under Section 161 of CrPC and has also
perused the case diary. Much reliance has been
placed on the case diary though the case of the
revisionist is, that he is the father-in-law of the
deceased and the statement of the witnesses
which was recorded under Section 161 CrPC
and the other materials, are insufficient to file a
charge-sheet
against
the
revisionist
and
therefore the Investigating Officer has filed the
charge-sheet against all the accused persons
except the present revisionist.

22. It is settled law that the trial Court can
take step to add such persons as accused on the
basis of evidence adduced and not on the basis
of materials available in the charge-sheet or the
case diary as, such materials do not constitute
'evidence'. In the case in hand, it is, prima facie,
evident that the learned revisional Court has not
only gone through the case diary but has also
placed reliance on the first information report,
the statement of the witnesses recorded under
Section 161 CrPC and the statement of PW1
before the trial Court therefore there was no any
material evidence other than the aforesaid
before the trial Court while passing the
impugned summoning order.

23. Further no satisfaction has been
recorded by the Court below with respect to
the fact that the prosecution succeeded to
establish that there are more than prima facie
or much stronger case against the revisionist
and if such an evidence are adduced, there are
chances of conviction of the revisionist.
Further, the learned trial Court has also
skipped the law enunciated by the Apex
Court.

24. Resultantly, the revision is hereby
allowed and the impugned summoning order
dated 09.12.2022 is hereby set-aside.

25. The matter is remitted to the trial
Court concerned to pass a fresh order, after
considering the ratio of the judgements
passed by the Apex Court in Hardeep Singh
(Supra)
and
Brijendra
Singh
(Supra)
including the other materials available before
it, within period of 45 days from the date of
the certified copy of the order.

26. Office is also directed to inform this
order to the trial Court forthwith.
----------
(2023) 3 ILRA 999
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Revision No. 232 of 2023

Mujtaba Ali Khan ...Revisionist
Versus
Jud. Magistrate-III, Lko. & Ors.
 ...Opp. Parties
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Ghaus Beg

Counsel for the Respondent:
G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 397 r.w. section
401 - Revision , Section 451 - Order for
custody and disposal of property pending
trial in certain cases , Indian Penal Code,
1860 - Section 279, 337, 427 - It is of no
use to keep a seized vehicle at police
station for a long period - Magistrate must
release vehicle after taking sufficient
guarantee/surety - production of the
vehicle
not
necessary
during
trial
-
photograph of the vehicle would be
sufficient to be proved in evidence.(Para -
10,16)

Revisionist is the registered owner of a
vehicle - involved in an accident - lodged FIR
against unknown person - vehicle was seized
and detained - vehicle of revisionist kept in
police custody for about approximately 3
years
and
6
months
-
application
by
revisionist for release of vehicle - Magistrate
rejected application - ground - accused failed
to surrender & driver's license was not
verified.(Para - 3 to 10)

HELD:- Revisionist entitled to the possession of
the seized vehicle, which is related to the
accident matter. Magistrate has no power to
enquire about the validity of the driver's license
and pollution certificate, as he is not a police
officer or transport department officer.(Para -
15)

Criminal revision allowed. (E-7)

List of Cases cited:

1. Sunderbhai Ambalal Desai Vs St. of Guj. , AIR
2003, S.C., Page No. 638

2. General Insurance Council Vs St. of A.P. ,
2010 (6) SCC

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
learned
counsel
for
revisionist Sri Ghaus Beg, learned AGA
and perused the record.

2. Learned counsel for revisionist
submitted that he inadvertently impleaded
Judicial Magistrate in the array of opposite
party and learned counsel for revisionist
submitted that he want to delete the
opposite party no.1 Judicial Magistrate-III.
Submission
of
learned
counsel
for
revisionist is hereby allowed and it is
directed to delete the same.

3. This Criminal Revision has been
preferred u/s 397 read with Section 401 of
Code of Criminal Procedure 1973 against
the impugned order dated 21.1.2023 passed
by the Judicial Magistrate-III, Lucknow,
whereby without assigning any cogent
reason the learned trial court has rejected
the application dated 24.1.2020. Being
aggrieved with impugned order dated
24.1.2020 this revision preferred by the
revisionist in respect of release of vehicle
bearing registration no. UP-32/CN5543
(Bus).

4. Learned counsel for revisionist
submitted that revisionist is the registered
owner of vehicle no. UP-32/CN5543 (Bus).
On 18.10.2019 the above mentioned
vehicle met with an accident near Purniya
Chaurah under P.S. Madiyaon, Lucknow
with motor cycle bearing registration no.
UP32-KR-1795. In the said incident no one
has got injury. However, the said motor
cycle was partially damaged. In this behalf,
Sri Krishan Kant Kushwaha lodged FIR on
18.10.2019 against unknown person as a
Case Crime No. 947/2019 u/s 279, 337,
427 IPC, P.S. Madiyaon, Lucknow which
is annexed as Annexure No. 4. The vehicle
of the revisionist was seized and detained at
P.S. Madiyaon on 18.10.2019.
3 All. Mujtaba Ali Khan Vs. Jud. Magistrate-III, Lko. & Ors.
1001

5. The revisionist preferred the
application on 27.1.2020 before ACJM, IV,
Lucknow for release of the vehicle but the
Magistrate concerned vide the order dated
5.3.2020
rejected
the
said
release
application on flimsy grounds in an illegal
and arbitrary manner by stating that
accused of this crime failed to surrender
before the court and the license of the
driver is not duly verified.

6. Being aggrieved with the impugned
order dated 5.3.2020 passed by learned
Magistrate the revisionist preferred the
Revision No. 204/2020 on 17.8.2020.
Learned Additional District and Sessions
Judge, Lucknow allowed the said revision
and set aside the order dated 5.3.2020 and
remanded the matter to the learned trial
court with direction to consider the release
application. After hearing the parties the
revisional court passed the order dated
15.12.2021 in the light of the judgement
passed by Hon'ble Apex Court in case of
Sunderbhai Ambalal Desai V/s State of
Gujarat, AIR 2003, Supreme Court,
Page No. 638 which is annexed as
Annexure No. 8.

7. The relevant portion of which is
being reproduced hereunder:

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

In any case,before handing over
possession of such vehicles, appropriate
photographs of the said vehicle could be
taken and detailed panchnama should be
prepared.

However those 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 CrPC
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."

8. In pursuance of order dated
15.12.2021 passed by learned Revisional
Court, revisionist approached before the
Judicial Magistrate-III and again moved the
application in the light of the direction
given by the learned Revisional Court. But
the learned Magistrate rejected the release
application
dated
21.1.2003
without
considering the direction given by learned
Revisional Court to consider the release
application of the revisionist as law
propounded by Hon'ble Apex Court in
Sunderbhai Ambalal Desai V/s State of
Gujarat (Supra).

9. Order dated 21.1.2023 passed by
learned Judicial Magistrate, III, Lucknow
reads as under:

"न्द्यायालय न्द्याशयक मशजस्रेर् तृतीय, लखनऊ।

मुजतबा अली खां

बनाम

सरकार

मु०अ०सं० 947/2019 धारा- 279,337,427
आई०पी०सी०

थाना- मशडयांव, जनपि लखनऊ

शिनांक 21.01.23

प्राथटना पि वास्ते ररलीज शकये जाने वाहन सं०- यू०पी०-32
सी०एन०-5543, प्राथी मुजतबा अली खााँ की ओर से प्रस्तुत
करते हुए कथन शकया गया है शक वह उपरोक्त वाहन की पंजीकृत
स्वामी है। उपरोक्त वाहन मु०अ०सं० 947/19 में शलशखत रुप से
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
िजट है। अतः उक्त वाहन को उसके पक्ष में अवमुक्त शकये जाने की
कृपा की गई है।

उपरोक्त प्राथटना पि पर प्राथी के शवद्वान अशधवक्ता एवं शवद्वान
अशभयोजन अशधकारी को सुना एवं अशभयोजन आख्या एवं थाने से
प्राप्त आख्या का अवलोकन शकया।

सहायक अशभयोजन अशधकारी की आख्या के अनुसार
डी०एल० व पलयूिन का सत्यापन होना िेष है। आवेिक का
अवमुक्त प्राथटना पि स्वीकार शकये जाने योग्य नही है।

थाने से प्राप्त आख्यानुसार वाहन प्राईवेर् बस सं० यू०पी०32 सी०एन०-5543 मु०अ०सं० 947/2019 धारा-
279,337,427 आई०पी०सी० थाना मशडयांव के अशभयोग से
संबंशधत है। उक्त वाहन थाने के मालखाने में िाशखल है.

अतः मामले के तथ्यों एवं पररशस्थशतयों को दृशष्टगत रखते हुये
आवेिक का अवमुक्त प्राथटना पि स्वीकार शकये जाने योग्य नहीं है।
आिेि

तिनुसार आवेिक / प्राथी मुजतबा अली खां का प्राथटना पि
वास्ते अवमुक्त शकये जाने वाहन प्राईवेर् बस सं० यू०पी०-32-
सी०एन०-5543शनरस्त शकया जाता है।"

10. Thus, learned counsel for
revisionist submitted that it is the settled
law of the land that it is of no use to keep
the seized vehicle at police station for a
long period and it was directed to the
Magistrate to release the above vehicle
after taking sufficient guarantee/surety.
Even, that learned trial court did not
consider the provisions enshrined in
Section 451 CrPC and due to impugned
order dated 21.1.2023 the vehicle of
revisionist is unnecessary kept in police
custody for about approximately 3 years
and 6 months. Thus the revisionist suffer
irreparable loss and he prayed that his
revision to be allowed.

11.

Learned
AGA
vehemently
opposed and submitted that this is the case
of property.

12. I have heard the learned counsel
for parties and perused the record.

"Section 451 in The Code Of Criminal
Procedure, 1973 reads as under:

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"

13. On perusal of the order of learned
Judicial
Magistrate
dated
21.1.2023,
learned Magistrate rejected the release
application without assigning any reason in
very cursory manner. It was the bounden
duty of Magistrate to follow the direction
issued by the revisional court vide order
dated 15.12.2021 but the Magistrate fail to
follow the order of revisional court.
Learned Revisional Court in his findings
dated 15.12.2021 clearly gave direction to
the learned trial court that verification of
license of driver is not required in this case
and the revisionist is agree to compensate
the victim adequately and clearly indicated
that due to passage of time the seized
vehicle became deteriorated.
3 All. Dilshad Ahamd Vs. State of U.P. & Anr.
1003

14. This fact is undisputed that the
chargesheet has already been filed before
the trial court, so, in these circumstances,
learned trial court without application of
judicial mind wrongly rejected the release
application. Even the learned trial court did
not bother to follow the direction issued by
revisional court and the learned trial court
neither read the Section 451 of CrPC nor
follow the dictim of Hon'ble Apex Court in
Sunderbhai Ambalal Desai (Supra).

15. It is clear that the revisionist is
entitled to the possession of above vehicle.
This seized vehicle is related to the
accident matter and only on the basis of the
pollution certificate or verification of
license of driver the release of the vehicle
could not be denied. Learned Magistrate
has no power to enquire about validity of
license of driver and pollution certificate as
Magistrate is not a police officer or officer
of the transport department.

16. In this matter, it is also desirable
that the production of vehicle is not
inevitable. In General Insurance Council
v/s State of AP 2010 (6) SCC Hon'ble
Apex Court held that the production of the
vehicle is not necessary during trial and the
photograph of the vehicle would be
sufficient to be proved in evidence and the
learned Apex Court directed to release the
vehicle immediate forthwith.

17. The purpose of revisional
jurisdiction is to examine the correctness or
propriety of order. It is indicated that the
order passed by the learned Magistrate is
non
speaking
without
application
of
judicial mind and without reading the
relevant provisions as well as Apex Court
law.
Order
passed
by
the
learned
Magistrate is cryptic and this practice is
highly deprecated. Conduct of the learned
Magistrate is against the Judicial Propriety
and it amounts to contempt also.

18. Learned Magistrate is hereby
warned in future to pass the order in
accordance with law.

19. Consequently, the revision is
hereby allowed.

20. Thus, in above discussion I quash
the impugned order dated 21.1.2023 passed
by
Judicial
Magistrate-III
and
court
concerned is directed to release the above
vehicle in favour of the revisionist
forthwith after taking proper surety.

21. Senior Registrar of this Court is
hereby directed to communicate the order
of this Court to learned Judicial Magistrate,
III, Lucknow through District Judge
Lucknow. It is also directed to District
Judge, Lucknow to keep vigil against the
officer concerned.

22. Accordingly, this Criminal
Revision is disposed of.
----------
(2023) 3 ILRA 1003
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Revision No. 242 of 2023

Dilshad Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Respondent

Counsel for the Revisionist:
Hari Shanker Tewari

Counsel for the Respondent:
G.A.