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2003 DIGILAW 481 (BOM)

Premraj Arjundas Verma v. State of Maharashtra

2003-04-29

S.T.KHARCHE

body2003
JUDGMENT - KHARCHE S.T., J.:---Rule. Rule made returnable forthwith by consent of parties. 2. Heard Mrs. Sirpurkar, learned Counsel, for the applicant and Mr. Doifode, learned A.P.P., for the respondent/State. 3. Invoking the jurisdiction of this Court under section 482 of the Code of Criminal Procedure (for short the Code) read with Article 227 of the Constitution of India, this application is for issue of directions to the Judicial Magistrate, First Class for interim release of the seized property on execution of supratnama as per the provisions of section 451 of the Code. 4. The learned Counsel for the applicant contended that the impugned order dated 5-2-2002 passed by the learned J.M.F.C. in Reg. Criminal Case No. 114 of 1989 rejecting the application of the applicant for interim release of the seized property is under challenge before this Court. The learned Counsel further contended that the applicant was the original complainant in Criminal Case No. 116 of 1978. The allegations in the complaint were that in the night intervening 9-2-1976 and 10-2-1976, when the complainant was sleeping inside the house, gold ornaments, silver coins and sarees worth Rs. 20,000/- were stolen. The first information report was lodged at Police Station, Tamgaon, on the basis of which offence against two accused namely Vishwas and Shivraj came to be registered and they were charged for the offences punishable under sections 457, 380 and 411 of Indian Penal Code. 5. The learned Counsel for the applicant contended that accused Shivraj was absconding and, therefore, his trial was separated. The trial of accused Vishwas was held and the learned J.M.F.C. convicted him by an order dated 31-12-1982 for the offence punishable under section 411 of Indian Penal Code. The said judgment of conviction was challenged before the Sessions Judge who, by his order dated 8-2-1985, allowed the appeal and ordered that the property should be returned to the accused Vishwas Deshmukh. The learned Counsel further contended that the said judgment of learned Sessions Judge was challenged in the High Court by filing Criminal Revision No. 108 of 1985 by the applicant. This Court by its order dated 19-12-1985 confirmed the order of acquittal but the order regarding disposal of the property was set aside and the matter was remanded back to the trial Court for conducting fresh enquiry. 6. This Court by its order dated 19-12-1985 confirmed the order of acquittal but the order regarding disposal of the property was set aside and the matter was remanded back to the trial Court for conducting fresh enquiry. 6. The learned Counsel for the applicant contended that more than 12 years have passed and the co-accused Shivraj is still not traced out. The learned Counsel for the applicant contended that in the circumstances the seized property be released in favour of the applicant/complainant on execution of supratnama under section 451 of the Code of Criminal Procedure (for short the Code). 7. The learned A.P.P. contended that the present applicant is not entitled to seek the relief as prayed in view of the order passed by this Court in Criminal Revision No. 55 of 1988. He contended that in the aforesaid Criminal Revision, this Court in the last part of the judgment issued the following directions : "The trial Court is directed to retain the property with itself. The Police Station Officer shall file the charge-sheet against the absconding accused and the question regarding the disposal of the property shall be decided at the conclusion according to law." 8. The learned A.P.P. contended that the supplementary charge-sheet was filed in the Court which was registered as Criminal Case No. 114 of 1989 and the said case is pending in the Court of J.M.F.C. He further contended that the co-accused Shivraj is shown absconding and steps are being taken to secure his presence. He contended that the seized property including ornaments etc. would be required for the purpose of identification in that case which is fixed for recording of evidence and, in such circumstances, the seized property may not be released on execution of supratnama by the applicant/complainant. 9. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. It would reveal that the applicant had filed an application (Ex. 9. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. It would reveal that the applicant had filed an application (Ex. 36) in the said Criminal Case No. 114 of 1989 seeking the interim release of the property under section 451 of the Code and this application was rejected by the Court on the sole ground that this Court while disposing of Criminal Revision Application No. 55 of 1988 had directed the trial Court to retain the property with itself and the P.S.O. was directed to file the charge-sheet against the absconding accused and the question regarding the disposal of the property was directed to be decided at the conclusion according to law. It is apparent that the directions issued by this Court still can be obeyed by the trial Court. This Court did not observe anywhere in the judgment while disposing of Criminal Revision Application No. 55 of 1988 that the interim custody of the property should not be given to the complainant under section 451 of the Code. What has been directed is that the question regarding disposal of the property shall be decided at the conclusion according to law. That means, the learned J.M.F.C. will have to take final decision according to law while passing final order regarding disposal of the property under section 452 of the Code. 10. What is pertinent to note here is that the co-accused Shivraj is still absconding and inspite of the efforts made by police to secure his presence, could not trace out him and the supplementary charge-sheet which is registered as Criminal Case No. 114 of 1989 is awaiting disposal since the year 1989. 11. This Court by the order dated 26-2-2003 directed the police to take the photographs of the ornaments so that the same can be identified at the appropriate time. In compliance of this order P.S.O. P.S. Tamgaon submitted his report dated 7-4-003 to the learned J.M.F.C. and it appears that he has been taken the photographs of the property which are forwarded to this Court in a sealed pocket which was opened in presence of the parties and the photographs of the ornaments were seen even by the learned Counsel for the parties also. 12. 12. The only objection raised by the learned A.P.P. for releasing the seized property on execution of supratnama is that the complainant will have to establish his ownership about those ornaments. This contention cannot be accepted for the simple reason that while releasing the property under section 451 of the Code, the parties are not require to establish their title to the property. I may usefully reproduce section 451 of the Code which reads thus: "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." 13. The Apex Court in the case of (Sunderbhai Ambalal Desai v. State of Gujarat)1, Special Leave Petition (Cri.) No. 2745 of 2002 which is decided on 1-10-2002, observed in para 4 that "the object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be resorted to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned to the owner. In the first place it may be returned during any inquiry or trial. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the Police Officers in every case where it has taken cognizance". The Apex Court further observed that "where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, powers under section 451 Cri.P.C. should be exercised promptly and at the earliest". 14. In the present case, it is a fact that the co-accused Shivraj is absconding since many years and a supplementary charge-sheet has came to be filed against him which is numbered as Criminal Case No. 114 of 1989. One does not know when this trial will be completed and in that situation, I am of the considered view that there is no impediment in returning the seized property to the applicant/complainant on execution of supratnama under the provisions of section 451 of the Code. 15. One does not know when this trial will be completed and in that situation, I am of the considered view that there is no impediment in returning the seized property to the applicant/complainant on execution of supratnama under the provisions of section 451 of the Code. 15. The objection of the learned A.P.P. that the property may be required for the purpose of identification in the course of the trial, can be taken care of at the time of execution of the supratnama and whatever be the situation, it is of no use to keep such seized property idle in the custody of the Court and while releasing the property on execution of supratnama, the Court has to take care that the photographs of the seized property are obtained and also panchanama is drawn by the trial Court with a further direction to the executant of the supratnama that he would undertake to produce the seized property as and when required by the Court for the purpose of identification and that he would not change the identity and nature of the seized property till that time. In such situation, this Court is of the considered view that this is a fit case for invoking inherent powers under section 482 of the Code for directing the release of the seized property on execution of supratnama by the applicant/complainant. In the result, the impugned order passed by the learned J.M.F.C. cannot be sustained and the application is allowed. It is directed that the learned J.M.F.C. shall release the seized property in favour of the applicant/complainant in the light of the directions mentioned above in this judgment. Rule is made absolute in the aforesaid terms. Application allowed. -----