# Rajeev Agrawal v. State of U.P

- **Citation:** (2005) 2 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-23
- **Case number:** Criminal Misc. Application No. 9693 of 2005
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-agrawal-v-state-of-u-p-40507
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section-451Release of vehicle-applicant submitted
no objection certificate and affidavits of
other
heirs-Distt.
Magistrates
also
forwarded the report for release of
vehicle-rejection
held-magistrate
committed gross error-No good reason
assigned
for
rejection
of
release
application-Order-Quashed
with
direction to the magistrate to release the
bus within period of one week.

Held: Para 3 and 4

The Magistrate committed a gross error
in rejecting the application, even though
all the documents were produced before
him including fact was brought to the
notice that the permit stands transferred
in the name of the present applicant.

After taking the entire matter into
consideration, I come to the conclusion
that the order of the Magistrate dated
1.7.2005 can not be left to stand. No
good reason has been assigned for
refusing the prayer for release of the
bus.
Accordingly,
the
order
dated
1.7.2005 is quashed. The Chief Judicial
Magistrate, Jhansi is directed to release
the bus within a period of one week from
the date, a certified copy of this order is
produced
before
him
after
taking
adequate guarantee/ security of the bus
from the applicant Rajiv Agarwal.
Case law discussed:
2003 (46) ACC 223
2004 (48) ACC-605
2003 (47) ACC-1086

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
644
Department was competent to repatriate
the
petitioners
back to
the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.

11. Consequently, I do not find any
error in the impugned order. The writ
petitions fail and are dismissed. In the
circumstances of the case, there shall be
no order as to cost. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 9693 of
2005

Rajeev Agarwal

...Applicant
Versus
State of U.P.

 ...Respondent

Counsel for the Applicant:
Sri Vinod Prasad

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section-451Release of vehicle-applicant submitted
no objection certificate and affidavits of
other
heirs-Distt.
Magistrates
also
forwarded the report for release of
vehicle-rejection
held-magistrate
committed gross error-No good reason
assigned
for
rejection
of
release
application-Order-Quashed
with
direction to the magistrate to release the
bus within period of one week.

Held: Para 3 and 4

The Magistrate committed a gross error
in rejecting the application, even though
all the documents were produced before
him including fact was brought to the
notice that the permit stands transferred
in the name of the present applicant.

After taking the entire matter into
consideration, I come to the conclusion
that the order of the Magistrate dated
1.7.2005 can not be left to stand. No
good reason has been assigned for
refusing the prayer for release of the
bus.
Accordingly,
the
order
dated
1.7.2005 is quashed. The Chief Judicial
Magistrate, Jhansi is directed to release
the bus within a period of one week from
the date, a certified copy of this order is
produced
before
him
after
taking
adequate guarantee/ security of the bus
from the applicant Rajiv Agarwal.
Case law discussed:
2003 (46) ACC 223
2004 (48) ACC-605
2003 (47) ACC-1086

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri Vinod Prakash
Advocate for the applicant and learned
A.G.A. for the State. On the agreement
between the parties, this application is
finally heard.

2. This is an application challenging
the order dated 1.7.2005 passed by the
Chief Judicial Magistrate, Jhansi in a
Misc. Application No. Nil of 2005 in a
case, State Vs. Mangal Singh, under
Sections 279, 337, 338, 304A, 427 I.P.C.
read with Section 179 of the Motor
Vehicle Act, Police Station Nababad,
District Jhansi, arising out of case Crime
No. 1224 of 2005. The learned Magistrate
has refused to release the vehicle No.
DLP 5240 in favour of the applicant. The
vehicle was registered in the name of Smt.
Kapoori Devi, wife of Gauri Shanker
Agarwal. A carriage permit No. PHTP
55/68 was issued in respect of the vehicle
2 All] Rajeev Agrawal V. State of U.P. 645
which is a bus of 1992 model. Smt.
Kapoori Devi was grandmother of the
applicant. Smt. Kapoori Devi died and all
the family members had agreed amongst
themselves that the vehicle be transferred
in the name of the applicant. Affidavits
were filed in favour of the applicant by
the family members which was in form of
a no objection/consent for transfer of
permit. The affidavits have been annexed
as Annexure-2 to the affidavit. However,
the vehicle met an accident on 19.6.2005
in respect of which a first information
report was registered at case Crime No.
1224 of 2005. The applicant applied for
release of the vehicle vide application
dated 21.6.2005 which is annexed as
Annexure-3 to the affidavit. A report was
called for in respect of the vehicle under
the orders of the District Magistrate/
Collector, Jhansi regarding actual and
legal heir of Smt. Kapoori Devi. Tehsildar
inquired into the matter and submitted a
report. Annexure-4 is a letter issued by
the District Magistrate, Jhansi to the
Secretary U.P.S.R.T.C. apprising him that
the Tehsildar has submitted a report on
3.6.2005 that the permit PHTP 55/86 STA
State/96 and vehicle No. DLIP No. 5240
Model 1992 is to be transferred in the
name of the present applicant. The vehicle
was also being run under his supervision.
The report of the Tehsildar was appended
to the letter of the District Magistrate. All
these documents were brought on record
before the Chief Judicial Magistrate,
Jhansi and he was also apprised of the fact
that on the basis of no objection issued by
other heirs of late Smt. Kapoori Devi,
permit of the vehicle stood transferred in
the name of the applicant. The tax receipts
of the vehicle were also submitted in the
name of the applicant but the learned
Magistrate rejected the application vide
order dated 1.7.2005 for the reason that
there are six children of late Smt. Kapoori
Devi and the registration is not in the
name of the applicant, he can not be said
to be the sole owner of the vehicle.
Accordingly he refused to release it in his
favour, hence this application.

3. I have gone through the record as
well as the impugned order. The Apex
Court, in the case of Sunder Bhai
Ambalal Desai Vs. State of Gujrat,
2003 (46) A.C.C. 223 has clearly held
that the powers under Section 451 Cr.P.C.
should be exercised expeditiously and
judiciously. It would serve various
purposes:- (i) Owner of the article would
not suffer because of its remaining
unused,(ii) Court or the police would not
be required to keep the article in safe
custody, (iii) If the proper panchnama
before handing over article is prepared,
that can be used in evidence instead of its
production before the court during the
trial, if necessary, (iv) This jurisdiction of
the court to record evidence should be
exercised promptly so that there may not
be further chance of tampering with the
articles. The Apex Court has clearly held
that appropriate orders should be passed
immediately because keeping it at police
station for a long period would only result
in decay of the article. The court should
ensure that the article will be produced if
and when required by taking bond,
guarantee or security. Similar view has
been followed in a number of decisions of
this Court as well. Mohd. Shamim Khan
Vs. State of U.P., 2004, A.C.C. (48),
605. In the case of Tulsi Rajak Vs. State
of Jharkhand, 2004, Criminal Law
Journal, 2450, it was held that truck
lying in the police station for more than
one year resulted in heavy loss of the
petitioner and in the circumstances, the
High Court permitted to release of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
646
vehicle. In Gurnam Singh and another
Vs. State of Uttaranchal, 2003 (47)
A.C.C., 1086, it was held that what so
ever the situation be, there is no use to
keep the seized vehicle at the police
station or court campus for a long period,
the Magistrate should pass appropriate
orders immediately by taking appropriate
bond and guarantee as well as security for
return of the said vehicle, if required at
any point of time. In the instant case, the
counsel for the applicant has brought to
my notice that two wheels of the standing
bus has been removed by someone and in
the event, the vehicle is not released, each
and every part will go one by one but for
the metallic frame of the bus. The
admitted position in the present case is
that all the heirs of the actual owners in
whose name the vehicle was registered,
have filed their affidavits/ no objection
certificate. The District Magistrate has
also got the matter enquired through the
Tehsildar and informed the UPSRTC as
such it is evident that the learned
Magistrate should have released the bus
after taking appropriate precaution in
form of bonds or security. The Magistrate
committed a gross error in rejecting the
application,
even
though
all
the
documents were produced before him
including fact was brought to the notice
that the permit stands transferred in the
name of the present applicant.

4. After taking the entire matter into
consideration, I come to the conclusion
that the order of the Magistrate dated
1.7.2005 can not be left to stand. No good
reason has been assigned for refusing the
prayer for release of the bus. Accordingly,
the order dated 1.7.2005 is quashed. The
Chief Judicial Magistrate, Jhansi is
directed to release the bus within a period
of one week from the date, a certified
copy of this order is produced before him
after taking adequate guarantee/ security
of the bus from the applicant Rajiv
Agarwal.

5. For the reasons discussed above,
this application is finally allowed.
Application Allowed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No.32302 of 1997

Virendra Prasad Dubey
...Petitioner
Versus
Senior Divisional Security Commissioner,
RPF, Allahabad and others ..Respondents

Counsel for the Petitioner:
Sri P.N. Saxena
Sri M.M. Srivastava
Sri R.K. Srivastava

Counsel for the Respondents:
Sri B.B. Paul
Sri Govind Saran

Railway Protection Force Rules-1987Rule 148, 153 read with Fundamental
Rules- Rule 56-compulsory retirementPetitioner-a
Constable
in
R.P.F.
proceeded
on
medical
leave-w.e.f.
4.1.93-10.11.94-time
to
time
leave
application-duly
received
by
the
authorities-after 10 yrs. Service-Major
punishment of compulsory retirement
awarded at the age of 35 yrs.-without
serving
the
charge
sheet,
without
affording opportunity-absence from duty
cannot be terned as willful absence from
duty-hence
no
grave
misconductimpugned Order can not sustained.

Held: Para 11