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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
Mahindra & Mahindra Financial Services Ltd.
V/s.
State of Rajasthan & Anr.
S.B. Criminal Revision Petition No.40/2011
S.B. Criminal Revision Petition
under Section 397/401 of Cr.P.C.
Date of Order :: May 17, 2011
HON’BLE MR.JUSTICE R.S.CHAUHAN
Mr. M.L. Khatri for the petitioner.
Ms. Chandra Lekha Parihar PP for the State.
The issue which has arisen before this Court in
the present case is that whether the finance company
which had granted a loan to the owner for buying a vehicle
is entitled to recover the vehicle in case, the higher
purchaser defaults in payment and in case the offending
vehicle is involved in commission of criminal offence?
The issue arises in the following background: on
30th July, 2007, the SHO, Police Station Rohit Pali had
stopped a Toyota Innova Car, bearing No.RJ 27 TC
0070994I, and a search was made. The police had
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discovered ten bags of doda post, weighing 217 Kg. doda
post powder. Thus, a case was chalked out for offence
under the NDPS Act and the vehicle was duly seized. Since
the petitioner company had granted a loan to Ramesh for
the said vehicle, since Ramesh had failed to repay the loan
amount, the petitioner-company had filed an application
under Section 457 Cr.P.C. before the learned trial Court
and prayed that the custody of the vehicle be given to it.
However, vide order dated 25.08.2010, the said
application was dismissed. Hence, this petition before this
Court.
The learned counsel for the petitioner has relied
upon the cases of Sunderbhai Ambalal Desai V/s. State of
Gujarat [JT 2002 (10) SC 80), Bharat Mehta V/s. State by
Inspector of Police, Chennai [AIR 2008 SC 1970] and on
the case of General Insurance Council & Ors. V/s. State of
Andhra Pradesh & Ors. [2010 Cri. L.J.2883] to buttress his
contention that even if the vehicle is involved in a criminal
offence, since the petitioner company had been shown as
the owner of the offending vehicle, it is entitled to seek
the custody of the vehicle. Secondly, the Apex Court had
laid down certain guidelines for exercising of power under
Section 451 Cr.P.C. in the case of Sunderbhai Ambalal
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Desai (supra). However, the said guidelines have been
ignored by the learned Judge while dismissing the
application under Section 451 Cr.P.C.
On the other hand, the learned Public Prosecutor
has vehemently contended that under the provisions of
NDPS Act, the vehicle is subject to confiscation by the
Government. Therefore, the custody of the vehicle should
not be given to the finance company.
Heard the learned counsel for the parties and
perused the impugned order as well as the case law cited
at the Bar.
In the case of Sunderbhai Ambalal Desai
(supra), the Hon’ble Supreme Court has laid down the
guidelines for the exercise of power under Section 451
Cr.P.C. The guidelines dealing with the vehicles are as
under :-
“13. Learned senior counsel Mr. Dholakia,
appearing for the State of Gujarat further
submitted that at present in the police
station premises, number of vehicles are
kept unattended and vehicles become junk
day by day. It is his contention that
appropriate directions should be given to
the magistrates who are dealing with such
questions to hand over such vehicles to its
4owner or to the person from whom the said
vehicles are seized by taking appropriate
bond and the guarantee for the return of
the said vehicles if required by the court at
any point of time.
14. However, the learned counsel
appearing for the petitioners submitted that
this question of handing over of vehicles to
the person from whom it is seized or to its
true owner is always a matter of litigation
and a lot of arguments are advanced by the
concerned persons.
15. In our view, whatever be the situation,
it is of no use to keep 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
applications for return of such vehicles.
16. 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.
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Thus, according to the Apex Court even if the
vehicle were involved in a commission of crime, even then
both in the interest of the owner and in the interest of the
nation, the vehicle should be returned to the owner after
imposing certain conditions. Moreover, in the case of
Bharat Mehta (supra), a case under the Excise Act, the
Hon’ble Supreme Court has noted that according to the
hire purchase agreement, the finance company is shown
as an owner. Therefore, instead of letting the vehicle be
devalued by exposing it to natural elements, the Apex
Court had directed that the vehicle should be returned to
the finance company. The present case is squarely
covered by the case of Sunderbhai Ambalal Desai (supra)
and the case of Bharat Mehta (supra).
Keeping in view the guidelines established by
the Apex Court in the case of Sunderbhai Ambalal Desai
(supra), this Court has no hesitation in setting aside the
order dated 25.08.2010 and to direct that the custody of
the Toyta Innova Car, bearing No.RJ 27 TC 0070994 I,
shall be returned forthwith to the petitioner-company
provided the petitioner-company submits a bank
guarantee of the value of the car before the learned trial
Court. Moreover, the finance company is directed not to
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transfer or to sell the said car to a third party.
Furthermore, it shall submit a written undertaking before
the learned trial court that in case the car is required for
the purpose of confiscation, the same shall be made
available to the learned trial Court at the time of passing
of the final judgment in the criminal trial.
The revision petition is, hereby, allowed.
(R.S.CHAUHAN)J.
A.Asopa/-