# Omprakash v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Criminal Misc. Writ Petition No. 293 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omprakash-v-state-of-u-p-anr-51573
- **Pages:** 7

## Headnote

Criminal law - Uttar Pradesh Prevention
of Cow Slaughter Act, 1955 - Sections
3/5-ka/5-kha/8 and Section 5-A(8) -
Constitution of India,1950 - Article 227 -
seizure and confiscation of vehicle- registered
owner of vehicle - one calf recovered -
pendency
of
confiscation
proceedings
-
rejection of release application by District
Magistrate - dismissal of revision and appeal -
vehicle lying in open yard for long period -
power under Sections 451 and 457 Cr.P.C. - no
useful purpose served by keeping seized vehicle
at police station - ownership not disputed -
principles of natural justice - impugned orders
not sustainable in the eye of law - confiscation
orders set aside - direction to release vehicle on
bank guarantee and bond .

W.P. allowed. (E-9)

Cases Cited:

## Text

1638 INDIAN LAW REPORTS ALLAHABAD SERIES
husband was also conducted by the
Medical Board and the Committee advised
that the petitioner must go for gynecology
examination.

23. In view of the above, no
comprehensive
report
regarding
the
potency test of the husband can be prepared
and made without getting the petitioner
medically
examined
along
with
the
husband. In this case the Medical Inquiry
Committee is of the opinion that the
petitioner wife should also be medically
examined as her husband has made a
categorical statement before the Committee
that his wife does not cooperate with him
during sexual intercourse. There is no
material available on record to substantiate
the allegation made against the Inquiry
Committee of LLRM Medical College
necessitating the potency test/ medical
examination of the respondent no.5 to be
conducted by the Medical Board at KGMU
Medical College, Lucknow.

24. As there is no need to issue any
further direction regarding the prayer no.3
as the fair and impartial investigation is
being carried out and the potency test of the
husband had been conducted at the instance
of the petitioner herself and this potency
test was conducted at the stage of
investigation as per Section 2(h) Cr.P.C.
"investigation", which includes all the
proceedings under this Code for the
collection of evidence conducted by a
police officer or by any person (other than a
Magistrate) who is authorised by a
Magistrate in this behalf.

25. Therefore, we do not find any
illegality or impropriety in the impugned
communications of the Medical Inquiry
Committee
dated
07.10.2023
and
16.12.2023 and no interference is required
in the matter.

26. Accordingly, the writ petition
stands dismissed.
----------
(2024) 3 ILRA 1638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 293 of 2024

Omprakash ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Anil Kumar Tiwari

Counsel for the Respondents:
G.A.

Criminal law - Uttar Pradesh Prevention
of Cow Slaughter Act, 1955 - Sections
3/5-ka/5-kha/8 and Section 5-A(8) -
Constitution of India,1950 - Article 227 -
seizure and confiscation of vehicle- registered
owner of vehicle - one calf recovered -
pendency
of
confiscation
proceedings
-
rejection of release application by District
Magistrate - dismissal of revision and appeal -
vehicle lying in open yard for long period -
power under Sections 451 and 457 Cr.P.C. - no
useful purpose served by keeping seized vehicle
at police station - ownership not disputed -
principles of natural justice - impugned orders
not sustainable in the eye of law - confiscation
orders set aside - direction to release vehicle on
bank guarantee and bond .

W.P. allowed. (E-9)

Cases Cited:

1. Sunderbhai Ambalal Desai and C.M. Mudaliar
v. State of Gujarat, AIR 2003 SC 638
3 All. Omprakash Vs. State of U.P. & Anr.
1639
2. Nand v. State of U.P., 1996 LawSuit (All) 423

3. Jai Prakash v. State of U.P., 1992 AWC 1744

4. Kamaljeet Singh v. State of U.P., 1986 U.P.
Cri. Ruling 50 (All)

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

1. Heard Sri Anil Kumar Tiwari,
learned counsel for the petitioner and Sri
Ashok Kumar Singh, learned A.G.A.-I for
the State and perused the record.

2. This petition under Article 227 of
the Constitution of India has been filed
with the following relief (s):

(i) Issue a writ, order or direction
in the nature of certiorari to quash the
impugned order dated 04.12.2023 passed
by Commissioner Ayodhya, in Case No.
2243 of 2023, "Omprakash Vs. State of
U.P.
through
District
Magistrate",
Computerized
Case
No.
C202304000002243, under Section 5-A(8)
Uttar Pradesh Prevention of Cow Slaugher
Act, 1955 (contained as annexure No. 6) as
well as order dated 17.03.2023 passed by
learned District Magistrate, Ayodhya, in
Case
No.
4705/2022
"State
Vs.
Omprakash"
Computerized
No.
D202204230004705 under Section 5-A
Uttar
Pradesh
Prevention
of
Cow
Slaughter Act, 1955 as well as order dated
25.4.2023 passed by learned Session
Judge, Faizabad in Criminal Revision No.
49/2023 related to Crime No. 322/2022,
under Section 3/5ka/5kha/8 of Uttar
Pradesh Prevention of Cow Slaughter Act,
1955, pertaining to Police Station-Raunahi,
District-Ayodhya/Faizabad as contained as
Annexure no. 2 and 3 to this writ petition.

(ii) Issue a writ, order or
direction in the nature of mandamus to stay
the operation and implementation of the
impugned judgment and order dated
04.12.2023
passed
by
Commissioner
Ayodhya, in Case No. 2243 of 2023,
"Omprakash Vs. State of U.P. through
District Magistrate", Computerized Case
No. C202304000002243, under Section 5A(8) Uttar Pradesh Prevention of Cow
Slaugher Act, 1955 (contained as annexure
No. 6) as well as order dated 17.03.2023
passed by learned District Magistrate,
Ayodhya, in Case No. 4705/2022 "State Vs.
Omprakash"
Computerized
No.
D202204230004705 under Section 5-A
Uttar
Pradesh
Prevention
of
Cow
Slaughter Act, 1955 as well as order dated
25.4.2023 passed by learned Session
Judge, Faizabad in Criminal Revision No.
49/2023 related to Crime No. 322/2022,
under Section 3/5ka/5kha/8 of Uttar
Pradesh Prevention of Cow Slaughter Act,
1955, pertaining to Police Station-Raunahi,
District-Ayodhya/Faizabad as contained as
Annexure no. 2 and 3 and further the
Hon'ble Court may kindly be pleased to
release the confiscated vehicle bearing
Registration No. U.P. 33 AT 3743 in favour
of the petitioner, in the interest of justice."

3. Learned A.G.A. has already filed
counter affidavit and in reply thereto
learned counsel for the petitioner has
already filed the rejoinder affidavit, the
same are available on record.

4. Learned counsel for the petitioner
submits that on 13.09.2022 police of Police
Station Raunhai lodged an F.I.R. bearing
Case Crime No. 322/2022 under Section
3/5/5kha/8 of Uttar Pradesh Prevention of
Cow Slaughter Act, 1955, Police Station
Raunahi,
District
Faizabad/Ayodhya
against two accused persons. As per
prosecution case 01 calf was recovered
from the vehicle of the petitioner i.e.
UP33AT3743. The accused persons were
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
carrying the said calf for the purpose to sell
and they could not show the papers of the
vehicles.

5. Learned counsel for the petitioner
further submits that the petitioner is the
registered owner of the vehicle number UP
33 AT 3743 and the petitioner is plying his
business by the said vehicle as a hire
purchase, the same was seized by the
police.

6. Learned counsel for the petitioner
further submits that the petitioner moved
release application before the District
Magistrate, Ayodhya and the learned
Magistrate rejected the application of the
petitioner vide order dated 17.03.2023 on
the basis of the report submitted by the
police and further directed to the police
authorities to make the public auction of
the confiscated vehicle in an arbitrary
manner. Thereafter, the petitioner filed
Criminal Revision No. 49/2023 against the
order dated 17.03.2023 before the learned
District and Session Judge, Faizabad, who
vide order dated 25.04.2023 dismissed the
said revision affirming the order dated
17.03.2023
passed
by
the
District
Magistrate, Ayodhya.

7. Learned counsel for the petitioner
further submits that against the impugned
orders dated 17.03.2023 passed by learned
District Magistrate, Ayodhya as well as
order dated 25.4.2023 passed by learned
Session Judge, Faizabad, the petitioner had
filed Criminal Misc. Writ Petition No. 4425
of 2023: Omprakash Vs. State of U.P.
before this Hon'ble Court and this Hon'ble
Court
vide
order
dated
18.09.2023
dismissed the petition of the petitioner with
liberty
to
file
appeal
before
the
Commissioner. The order dated 18.9.2023
is being quoted herein below:

"Heard learned counsel for the
petitioner and learned A.G.A. for the State.

By this petition, the petitioner has
prayed for quashing of the impugned order
dated 17.03.2023 passed by the learned
District Magistrate Ayodhya in case crime
No. 4705/2022 "State Vs. Omprakash",
under Section 5-A of Uttar Pradesh
Prevention of Cow Slaughter Act, 1955 and
consequential judgment and order dated
25.04.2023 passed by the Sessions Judge,
Faizabad (Ayodhya) in criminal revision
No. 49/2023 related to crime No. 322/2022,
under Sections 3/5ka/5kha/8 of Uttar
Pradesh Prevention of Cow Slaughter Act,
1955,
P.S.
Raunahi,
District
Ayodhya/Faizabad.

Learned A.G.A., at the outset, has
submitted that against the impugned order
dated 17.03.2023, the appeal lies before the
Commissionerate in view of the government
order dated 14.02.2021.

Learned counsel for the petitioner
does not dispute the fact that against the
impugned order dated 17.03.2023, the
appeal lies before the Commissionerate.

In view of the above, the petition
is dismissed on the ground of availability of
alternative remedy.

In case, the appeal is filed within
a period of 15 days from today, the same
shall be decided on merits by the
Commissioner within a further period of
one month.

Learned counsel for the petitioner
undertakes that he will not seek any
adjournment before the Appellate Court. "

8. Learned counsel for the petitioner
further submits that thereafter the petitioner
against the order dated 17.03.2023 passed
by learned District Magistrate, Ayodhya
moved an appeal before the Commissioner
Mandal
Ayodhya,
which
has
been
registered as Case No. 2243 of 2023:
3 All. Omprakash Vs. State of U.P. & Anr.
1641
Omprakash Vs. State of U.P. through
District Magistrate", Computerized Case
No. C202304000002243, under Section 5A(8) Uttar Pradesh Prevention of Cow
Slaugher Act, 1955, but the same has been
rejected vide order dated 04.12.2023.

9. Learned counsel for the petitioner
further submits that the impugned order
dated 17.03.2023 passed by the District
Magistrate, Ayodhya is totally illegal. He
further submits that the learned Magistrate
by exceeding its jurisdiction has passed the
impugned order on a wrong finding that the
confiscated vehicle was used in cow
slaughtering or in transportation of cow or
its progeny which is totally perverse and
the learned Magistrate has not considered
the evidence adduced by the petitioner.

10. Learned counsel for the petitioner
further submits that no such activities of
transportation of the aforesaid cow species
were done as per the allegations made by
the prosecution but the vehicle in question
of the petitioner has been seized in an
arbitrary manner.

11. Learned counsel for the petitioner
further submits that the petitioner is facing
great jeopardize due to confiscated of
vehicle by learned District Magistrate,
Ayodhya and his livelihood is depend upon
the said vehicle and the petitioner was not
able to give the installments of the said
vehicle because that was purchased on loan
and the said vehicle is the main source of
earning and now his family has come at the
verge of starvation.

12. Learned counsel for the petitioner
further submits that the vehicle is standing
in open yard in the police station for more
than nine months 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.

13. Learned counsel for the petitioner
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
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to the possession thereof, or if such
person cannot be ascertained, respecting
the custody and 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."

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

15. Per contra, learned A.G.A.
submits that the vehicle in question was
being used for transportation of bulls
illegally at the time of alleged offence and
the vehicle in question was correctly seized
by the District Magistrate, Ayodhya, vide
its impugned order dated 17.03.2023. Thus,
the District Magistrate, Ayodhya has rightly
passed
the
impugned
order
dated
17.03.2023 and there is no illegality and the
appeal
was
rightly
dismissed,
no
interference is required.

16. I have heard the learned counsel
for the parties and 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) and the judgment passed by
this court in various cases.

17. 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 held 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."

18. 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
been clearly observed by this Court in para
7 that:-
3 All. Omprakash Vs. State of U.P. & Anr.
1643

"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."

19. 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.

20. 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.

21. 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 fulfil 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.

22. 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.

23. As per the legal propositions
mentioned above and keeping in view this
fact that undisputedly the petitioner 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.

24. In view of the above facts and
circumstances of the case, the impugned
orders is not sustainable in the eye of law
and requires interference by this court.

25. Accordingly, the present petition
under Article 227 of the Constitution of
India is allowed and the impugned order
dated 04.12.2023 passed by Commissioner
Ayodhya, in Case No. 2243 of 2023,
"Omprakash Vs. State of U.P. through
District Magistrate", Computerized Case
No. C202304000002243, under Section 5A(8) Uttar Pradesh Prevention of Cow
Slaugher Act, 1955 as well as order dated
17.03.2023 passed by learned District
Magistrate,
Ayodhya,
in
Case
No.
4705/2022
"State
Vs.
Omprakash"
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
Computerized
No.
D202204230004705
under Section 5-A Uttar Pradesh Prevention
of Cow Slaughter Act, 1955 as well as
order dated 25.4.2023 passed by learned
Session Judge, Faizabad in Criminal
Revision No. 49/2023 related to Crime No.
322/2022, under Section 3/5ka/5kha/8 of
Uttar Pradesh Prevention of Cow Slaughter
Act, 1955, pertaining to Police StationRaunahi, District-Ayodhya/Faizabad are set
aside and reversed.

26. The District Magistrate, Ayodhya
is directed to release the vehicle in question
forthwith in favour of the petitioner. The
petitioner is directed to give a bank
guarantee of Rs. 50,000/- before the Chief
Judicial Magistrate, Ayodhya and file a
bond that he shall be producing the vehicle
as and when needed by the criminal courts
or the District Magistrate, Ayodhya, and he
shall not make any changes nor any
variation in the vehicle.

27. No order as to costs.

28. Let the copy of this order be sent
to the court concerned for its compliance.
----------
(2024) 3 ILRA 1644
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.03.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Criminal Misc. Writ Petition No. 909 of 2024

Mukta Srivastava & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rajesh Chandra Mishra

Counsel for the Respondents:
G.A., Pranjal Krishna

Criminal law - FIR - quashing - Article
226 - territorial jurisdiction - Sections 156,
177, 178, 179, 181(4) Cr.P.C. - forgery and
fabrication of Board Resolution - execution of
sale deeds on basis of forged resolution -
criminal breach of trust - misappropriation of
sale
consideration
-
proceeds
of
crime
deposited in bank accounts at Lucknow - part
cause of action within territorial jurisdiction -
consequence ensued at Lucknow - FIR not
liable to be quashed - civil/commercial dispute
coupled with criminal culpability - defence pleas
not to be examined at investigation stage .

W.P. dismissed. (E-9)

Cases Cited:

1. Lee Kun Hee & Ors. v. State of U.P. & Ors.,
(2012) 3 SCC 132

2. Rasiklal Dalpatram Thakkar v. State of
Gujarat & Ors., (2010) 1 SCC 1

3. Satvinder Kaur v. State (Govt. of NCT of
Delhi) & Anr., (1999) 8 SCC 728

4. Kushal Kumar Gupta & Anr. v. Mala Gupta,
(2011) 12 SCC 434

5.
P.
Chidambaram
v.
Directorate
of
Enforcement, (2019) 9 SCC 24

6. Central Bureau of Investigation v. Vikash
Mishra @ Vikash Mishra, (2023) 6 SCC 49

7. Asit Bhattacharjee v. Hanuman Prasad Ojha &
Ors., (2007) 5 SCC 786

(Delivered by Hon'ble Rajan Roy, J.)

1. Shri S. C. Mishra, learned Senior
Counsel along with Shri Rajesh Chandra
Mishra, learned counsel for the petitioners,
Shri Jaideep Narian Mathur, learned Senior
Counsel along with Shri Pranjal Krishna,