Orissa High Court
Revana Siddappa vs Unknown on 21 December, 2010
HIGH COURT OF ORISSA : CUTTACK
CRLREV NO.1336 OF 2010
In the matter of an application under section 401 of the Criminal
Procedure Code, 1973.
--------------
Revana Siddappa ...... Petitioner
-Versus-
State of Orissa ...... Opp. Party
For Petitioner : M/s P.K. Nayak, H.B. Dash,
D.Nayak, S.K. Mohapatra,
R. Nayak, CH.A.K. Das &
B.K. Sethy.
For Opp. Party : Mr. R.R. Mohanty,
Additional Standing Counsel.
---------------
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of Judgment : 21.12.2010
I. Mahanty, J. In the present application under Section 401 Cr.P.C.
challenge has been made to an order dated 1.11.2010 passed in
C.M.C. No. 214 of 2010 passed by the learned S.D.J.M., Keonjhar, by
which order an application filed under Section 457 Cr.P.C. filed by the
petitioner for and on behalf of Ashok Transport as its power of
attorney holder came to be rejected, inter alia, on a finding that, while
the Bus bearing temporary Registration No. KA-25TC-1054 involved in
2
the accident and release of the vehicle sought for belongs to the TATA
Motors Limited, the power of attorney filed by the petitioner was not by
TATA Motors Limited, but by Ashok Transport, who was not the owner
of the vehicle in question.
Mr. Nayak, learned counsel for the petitioner placed reliance
on a "Transportation Agreement" entered into by Ashok Transport
with TATA Motors Limited, interms of which the vehicle in question
was being transported from Dharward in the State of Karnataka to
RSO Kharagpur in the State of West Bengal on the basis of a Stock
Transfer Memo (Annexure-1) and while the said vehicle was
proceeding through Orissa at Keonjhar met with an accident leading
to the death of a person who was travelling on the road.
Learned counsel for the petitioner also laysstress on various
clauses of the said "Transportation Agreement" including Clauses (i),
(k) and (n) to establish the fact that the petitioner who is the power of
attorney holder of Ashok Transport, the signatory to the
Transportation Agreement with the TATA Motors Limited was
endowed with the responsibility of transporting of the vehicle of TATA
Motors from various locations to their various dealers located
throughout the country. Stress is laid on the contents of
paragraph-'n' of the Transportation Agreement, which is quoted
below:-
" If the vehicles entrusted to you for the
transportation are not delivered at the
prescribed destinations, for any reason
whatsoever, and you are not able to account for
the same, you shall be liable to compensate us,
without delay or demur, in respect of the
vehicles to undelivered and unaccounted for.
The said compensation shall include the value
of the said vehicles (i.e. the value-at which said
vehicle would have been sold by us to our
customers, had they been delivered at the
3
destination) together with interest at the rate of
18% per annum on the value of the said
vehicles and the interest shall be for the period
commencing from the date on which the said
vehicles would have normally been delivered at
the destinations, till such date on which the
compensations paid to us."
A copy of the seizure list is also submitted by the learned
counsel for the petitioner in Court today. From which it appears that
the vehicle was seized from the custody of a driver who was employed
by Ashok Transport. Apart from the above, learned counsel for the
petitioner placed reliance on a judgment of the Hon'ble Supreme
Court in the case of General Insurance Council and others v. State
of Andhra Pradesh and others, reported in (2010) 6 Supreme Court
Cases 768, wherein the Hon'ble Supreme Court took into
consideration various earlier judgments passed by the Hon'ble
Supreme Court and ultimately keeping in view the general public
interest directed in paragraph-14, as under:-
" It is a matter of common knowledge
that as and when vehicles are seized and kept
in various police stations, not only do they
occupy substantial space in the police stations
but upon being kept in open , are also prone to
fast natural decay on account of weather
conditions. Even a good maintained vehicle
loses its roadworthiness if it is kept stationary
in the police station for more than fifteen days.
Apart from the above, it is also a matter of
common knowledge that several valuable and
costly parts of the said vehicle are either stolen
or are cannibalized so that the vehicle becomes
unworthy of being driven on road. To avoid all
this, apart from the aforesaid directions issued
hereby above, we direct that all the State
Governments/Union Territories/ Director
General of Police shall ensure macro
implementation of the statutory provisions and
further direct that the activities of each and
4
every police station, especially with regard to
disposal of the seized vehicle be taken care of
by the Inspector General of Police of the
division/Commissioner of Police concerned of
the cities/Superintendent of Police concerned of
the district concerned."
Considering the nature of submission made and after
hearing the learned counsel for the State, I have also perused the
impugned order. Section 457(1) of the Code of Criminal Procedure,
1973 is quoted herein below:-
"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 production of such property."
In terms of the said provision of the Code of Criminal
Procedure, 1973, the Magistrate is authorized to direct delivery of the
property seized to "the person entitled to the possession thereof". In
the case at hand since the vehicle in question belonging to TATA
Motors Limited had been handed over to the possession of Ashok
Transport for the purpose of transporting the said vehicle to its dealer
located at Kharagpur in the State of West Bengal, there cannot be
any doubt that Ashok Transport was in lawful possession of the
vehicle in question at the time when the accident took place and the
vehicle was seized by the police authority from a driver who was
working for Ashok Transport. From the impugned order it clearly
appears that the power of attorney holder, who has filed the present
petition had field a power of attorney in his favour to move such an
5
application under Section 457 Cr.P.C. by Ashok Transport and the
said power of attorney holder was the lawful attorney for prosecuting
the case on behalf of the lawful possessor of the vehicle, on date the
accident occurred, I am of the considered view that the prayer made
by the petitioner ought to be allowed in his favour by quashing the
order dated 1.11.2010 passed by the learned SDJM, Keonjhar in
CMC No. 214 of 2010 arising out of G.R. Case No. 771 of 2010 and
further direct release of the vehicle in question in favour of the
petitioner with conditions that may be stipulated by the learned
SDJM.
The CRLREV is accordingly disposed of.
.........................
I.Mahanty,J.
ORISSA HIGH COURT : CUTTACK
21st December, 2010 /AKD
6
