Page No.# 1/4 GAHC010246672024 2025:GAU-AS:3588 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1437/2024 BAHARUL ISLAM TALUKDAR S/O SAKAT ALI TALUKDAR VILL- DHOLAI MOLAI PART-V, P.O. DHOLAI MOLAI, P.S. KATLICHERRA, DIST. HAILAKANDI, PIN-788161 VERSUS THE STATE OF ASSAM AND ANR TO BE REP. BY THE PP, ASSAM 2:MUAJJIN HUSSAIN LASKAR S/O SIRAJ UDDIN LASKAR VILL- DHOLAI MOLAI PART-II P.O. DHOLAI MOLAI P.S. KATLICHERRA DIST. HAILAKANDI PIN-78816 Advocate for the Petitioner : MR. R A CHOUDHURY, MR. R A MAZUMDER Advocate for the Respondent : PP, ASSAM, MR. SURAJIT DAS, AMICUS CURIAE (R-2) BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 27-03-2025 Heard learned counsel Mr. R.A. Choudhury for the petitioner, Mr. S. Das, Page No.# 2/4 learned Amicus Curiae for the respondent No. 2 and learned Additional Public Prosecutor, Assam Mr. K. Baishya for the respondent State. 2. The petitioner Baharul Islam Talukdar has filed this application under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the order dated 05.09.2024 passed by the learned Special Judge, Hailakandi in connection with Special (POCSO) Case No. 34/2024 arising out of Kaltlicherra Police Station Case No. 56/2024 under Section 366/376/506 of Indian Penal Code, 1860 read with Section 4 of Protection of Children from Sexual Offences Act, 2012. 3. I have considered the submissions at the bar with circumspection. 4. It is submitted at the bar that the petitioner is neither the driver of the vehicle nor the accused in connection with the aforementioned case. The vehicle is an autorickshaw bearing registration No. AS 24 AC 5161 and the vehicle was allegedly used during the offence of the aforementioned case i.e. Special (POCSO) Case No. 34/2024. 5. It is submitted at the bar that on 03.07.2024 charges were framed against the accused Mujakkir Hussain and this case is pending for evidence. 6. On the contrary, by the impugned order dated 05.09.2024 in connection with the aforementioned case the learned Trial Court has erroneously held that :- “Today, I have perused the case record and also perused the order and judgment of the Hon’ble Gauhati High Court dated 02.03.2023 passed in Criminal Petition No. 284/2022 and batch and the Hon’ble Gauhati High Court vide the above mentioned judgment specifically held that, at investigation stage, seized articles Page No.# 3/4 cannot be released by a court under Sec. 451 CrPC.” 7. It is submitted on behalf of the petitioner that zimma of the vehicle was prayed for by the petitioner at the stage of trial and not at the stage of investigation. The vehicle is lying in the Police Station and it is getting damaged. The vehicle is a source of income for the petitioner as he is the owner of the vehicle. The accused used to drive the vehicle on rent and owing to the offence alleged against the accused, the petitioner is suffering. 8. The petitioner has also relied on the decision of Division Bench of this Court in Crl. Pet. No. 284/2022 and other petitions wherein vide judgment and order dated 02.03.2023, this Court has held that : “45. In view of the reasons stated above, we answer the reference by holding that at the investigation stage, seized articles cannot be released by a Court under Section 451 Cr.P.C. However, under Section 457 Cr.P.C., the Criminal Court has the jurisdiction to give custody of seized property/articles at the stage of investigation, when those seized property are not produced before the Court.” 9. After considering the submissions at the bar and on perusal of the materials available on record, I deem it appropriate to set aside and quash the impugned order dated 05.09.2024 passed by the learned Special Judge, Hailakandi in connection with Special (POCSO) Case No. 34/2024. It is made clear that after proper verification of the documents regarding the ownership of the vehicle, the learned Trial Court may release the vehicle to the petitioner on his executing a bond. 10. In terms of the above observation, this Criminal Petition stands disposed Page No.# 4/4 of. JUDGE Comparing Assistant