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2006 DIGILAW 331 (CHH)

K. v. G. KRISHNAN RAJU VS STATE OF C. G.

2006-06-20

S.K.SINHA

body2006
ORDER Sunil Kumar Sinha, J.:- 1. The petitioner is aggrieved with that part of the order, which directs for furnishing a surety to the tune of Rs.24 lakhs as a condition to release the seized Tata Hitachi 200 E.ex. Machine on Suprudnama to the petitioner during the course of trial. 2. It appears that a Tata Hitachi 200 E.ex. Machine (hereinafter referred to as the seized Machine) was seized during the course of investigation of Crime No. 162/2006 registered at Police Station Baleo Nagar, Distt. Korba (CG) under section 304-A I.P.C After the seizure, an application was filed before the Chief Judicial Magistrate for releasing the seized Machine on Suprudnama u/s 457 Cr. P. C. and the aforesaid application was dismissed by the said Magistrate on 01.06.2006. A revision against the said order was filed before the Sessions Judge and the Sessions Judge, passed the impugned order dated 07th June 2006 and directed for releasing the said Machine on Suprudnama to the petitioner on conditions that the petitioner shall execute a Suprudnama to the tune of Rs.24 lakhs and shall also produce a solvent surety in the like sum to the satisfaction of the C,J.M. 3. Learned counsel for the petitioner submitted that the petitioner has no grievance in executing a Suprudnama (Bond) to the tune of Rs.24 lakhs abiding him by the normal conditions failing which he shall be liable to pay to the Government a sum of Rs.24 lakhs. However, the difficulty is in furnishing a surety in the above sum, because, ordinarily a very few persons will have the potential to the said high tune and in fact, the petitioner, who is an outsider and a resident of Visakhapatnam (A.P.) is not in a position to manage a surety of such an amount. The prayer is that the condition is onerous and unreasonable and the same should be relaxed so that the orders passed by the learned Sessions Judge may be complied with and the seized machine may be delivered to the petitioner. 4. This submission was opposed by learned State Counsel. He submitted that the learned Sessions Judge has determined the present value of the Machine after perusing various records and then only has directed to furnish surety in the said sum. 5. I have heard learned counsel for the parties at length and have also perused the records of the Miscellaneous Petition. 6. He submitted that the learned Sessions Judge has determined the present value of the Machine after perusing various records and then only has directed to furnish surety in the said sum. 5. I have heard learned counsel for the parties at length and have also perused the records of the Miscellaneous Petition. 6. Chapter XXXIV of the Code of Criminal Procedure provides for disposal of property. Section 457 provides for procedure by Police upon seizure of property. Sub-section (1) of section 457 provides that 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. 7. The words used by the Legislature in this section make it abundantly clear that the nature of jurisdiction vested with the Magistrate to pass a particular kind of order u/s 457 is discretionary and it would always be in the discretion of the Magistrate to pass an appropriate order regarding the disposal of the property or its delivery to such person whom he thinks entitled to hold the possession thereof with or without imposing conditions. 8. What is discretion and how it is to be exercised ? As Coke, J, observed in Rooke's case (referred to in the Law of Ultra Vires by B.C. Sharma at Pg.266) "discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences and not to do according to their wills or private affections." 9. The exercise of discretionary power should be to effectuate the purpose of enactment or legislation. The discretion is to be exerrised with circumspection consistent with justice, equity and good conscience keeping in view the given facts and circumstances. If the discretion is not exercised arbitrarily or unjustly it should not be the subject matter of interference. Since fairness is a general rule against arbitrariness, due application of mind with much care and caution is required while exercising discretionary jurisdiction. 10. If the discretion is not exercised arbitrarily or unjustly it should not be the subject matter of interference. Since fairness is a general rule against arbitrariness, due application of mind with much care and caution is required while exercising discretionary jurisdiction. 10. No doubt the Magistrate has the widest jurisdiction in the matter of disposal of property u/s 457 Cr.P.C. and if the Magistrate or the concerned Court has decided to deliver the property to the person entitled to it subject to certain conditions, a judicious approach in objective manner is required for imposing the conditions. A condition which may appear as an onerous condition should not be imposed while passing such an order so as to make the order ordinarily un-executable which in fact, shall amount to denial of justice. The judicious approach in such matters would be that reasonable conditions are imposed while passing such orders so as to bound the person for the purpose of security as well as production of the property at the appropriate stage. 11. Even in case of the property, which is liable to be confiscated, if the concerned authority or the court comes to the conclusion that it should be given on Suprudnama to the claimant, then demanding additional surety or guarantee, if it demands so, is only for the purpose that the property in question is produced in time by the temporary holder of the property as per the directions of the Court or authority. That means the court or authority wants to bind the claimant/holder of the property to strictly comply with the terms and conditions of the Suprudnama, on which it has decided to deliver the property on interim custody to him. As stated above, needless to say that such terms and conditions should not be so harsh that the person concerned may not be able to comply with such conditions as are imposed by the authority or the Court. 12. In the present case, the learned Sessions Judge has already passed an order for furnishing a Suprudnama of Rs.24 lakhs by the petitioner. The Suprudnama itself is a bond which shows that the property is being received on certain conditions and if any of the conditions is violated, the executant shall be liable to pay the said sum of Suprudnama or the bond on which he is receiving the property from the Court. The Suprudnama itself is a bond which shows that the property is being received on certain conditions and if any of the conditions is violated, the executant shall be liable to pay the said sum of Suprudnama or the bond on which he is receiving the property from the Court. In addition to Suprudnama if the surety is being demanded, it is an additional guarantee ensuring that the conditions of Suprudnama shall be fulfilled and if any breach is committed by the executant of Suprudnama, the surety shall be liable to pay the amount of security demanded from him, therefore, it is not necessary that in addition to a Suprudnama, a surety of the same amount should also be directed to be, furnished by the person taking property on Suprudnama. In view of the facts slated above, I deem it proper to modify the condition of furnishing surety imposed by the learned Sessions Judge. 13. It is hereby directed that the seized machine shall be handed over to the petitioner on his executing Suprudnama to the tune of Rs.24 lakhs to the satisfaction of the C.J.M. It shall be the condition of the Suprudnama that the applicant shall not alienate or in any manner transfer or hand over to any body or create a third party interest on the said machine till final disposal of the criminal cases before the concerned court and he would produce the said machine as and when directed by the said Court and if he makes default in satisfying any of the conditions of Suprudnama, he shall be liable to pay to the Government a sum of Rs.24 lakhs. Instead of a surety of Rs.24 lakhs, the petitioner shall furnish a solvent surety to the tune of Rs.25,000/- to the satisfaction of the concerned C.J.M. ensuring the compliance of the aforesaid terms of the Suprudnama by the claimant. The impugned order passed by the Sessions Judge, Korba, in Criminal Revision No. 17/2006 is modified to the extent indicated above. The petition filed u/s 482 Cr.P.C. stands finally disposed of. Petition Partly Allowed.