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2008 DIGILAW 585 (PAT)

Savita Devi v. State Of Bihar

2008-04-11

ABHIJIT SINHA

body2008
Judgment 1. Through this application the petitioner herein seeks to invoke the Courts jurisdiction under Section 482 Cr.P.C. for quashing of order dated 24.11.2007 passed by Sri Kamal Kishore Sinha, learned Presiding Judge, Fast Track Court No. Ill, Patna, in Cr. Revision No. 663 of 2007, whereby while rejecting the revision application he has upheld the orders dated 21.8.2007 and 12.9.2007 passed by Sri Ajay Kumar Srivastava, learned Judicial Magistrate 1st Class, Patna, whereunder he has rejected the petition filed by the petitioner for release of Government currency worth Rs. 1,29,300/- recovered by the police in connection with Kadam Kuan (Kankar Bagh) P.S. Case No. 572 of 2006. 2. The prosecution case in brief is that petitioner, Savita Devi, submitted a written report before the Kankar Bagh Police Station or 4.7.2006 alleging inter alia that she alongwith her husband Kamaldeo Prasad had gone to the Kankar Bagh Branch of Punjab National Bank and withdrew Rs. 1,90,000/- for necessary work and the same was kept in a red bag and as they proceeded on a motorcycle, a black coloured motorcycle came near and snatched the red bag containing Rs. 1,90,000/- as also the bank pass book and fled away towards the south. It is said that all the Government currency were in notes of Rs. 1000/-. 3. It appears that on the basis of the said written report the aforesaid Kadam Kuan P.S. case was registered under Section 379 I.P.C. to which Section 411 I.P.C. was added subsequently on recovery of a part of the aforesaid money. It further appears that in course of investigation on 10.7.2006 three persons in suspicious condition were apprehended near the said bank and from their possession a sum of Rs. 4,300/- was recovered and on confessional statement of apprehended accused Bikki Kumar Yadav, the police raided Room No. 112 of Shanti Hotel near Veena Cinema Hall and recovered Rs. 1,25,000/-and two seizure lists for a total sum of Rs. 1,29,300/- was prepared. It further appears that the husband of the petitioner identified the accused persons at the T.I. Parade conducted in Phulwarisharif Jail on 28.7.2006. Thereafter two petitions by the petitioner were filed on 14.7.2006 and 17.7.2006 respectively for release of the said money and a report was called for from the Kankar Bagh P.S. by the learned Chief Judicial Magistrate, Patna. It further appears that the husband of the petitioner identified the accused persons at the T.I. Parade conducted in Phulwarisharif Jail on 28.7.2006. Thereafter two petitions by the petitioner were filed on 14.7.2006 and 17.7.2006 respectively for release of the said money and a report was called for from the Kankar Bagh P.S. by the learned Chief Judicial Magistrate, Patna. The police through its report dated 22.7.2006 informed that the said amount can be released in favour of the petitioner. This was followed by a report which was called for from the Public Prosecutor and the Public Prosecutor through his report dated 22.7.2007 also agreed that the said amount could be released in favour of the petitioner. However, the learned Magistrate in seisin of the case by his orders dated 21.8.2007 and 12.9.2007 without considering the facts and circumstances of the case rejected the prayer for release of the seized amount of Government currency in favour of the petitioner and the same was approved by the learned Presiding Judge, Fast Track Court No. Ill, Patna, by his order dated 24.11.2007 passed in Criminal Revision No. 663 of 2007. 4. It would be apparent from the impugned orders that the only materials which weighed with the two Courts below was that the Government currency seized are the only Exhibit of this case and that only after closing the prosecution evidence the petition for release thereof would be considered. 5. Learned counsel for the petitioner relied on the decision of Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2003(4) PUR (SC)245. It was submitted that the Apex Court in respect of valuable articles and currency notes had clearly observed that in such cases the Magistrate should pass an appropriate order as contemplated under Section 451 Cr.P.C. at the earliest. It was further observed that for this purpose, if material on record indicates that such articles belong to the complainant/informant from whom theft, robbery or dacoity had taken place, then seized articles should be handed over to the complainant/informant after: (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. The Court further observed: "For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. the bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition." 6. Admittedly the Government currency was looted from petitioner and was recovered in course of investigation. There is no other claimant to the Government currency in question the police as also the Public Prosecutor have recommended for the release of the money in favour of the petitioner. 7. It is true that the Government currency recovered in course of investigation was the only Exhibit available to the prosecution but for that the Apex Court in the judgment under reference has been pleased to lay down the guidelines. 8. Opposing the submissions advanced by the learned counsel for the petitioner the learned A.P.P. sought to place reliance on a Single Bench judgment of this Court reported in 2007(4) PLJR 679 (Nasimuddin vs. State of Bihar). However, the facts and circumstances of that case was completely different from the facts and circumstances of this case inasmuch as the amount seized from the petitioners of that case appeared to be completely disproportionate to their known sources of income whereas in the instant case the money had been withdrawn from the joint bank account of the petitioner and her husband with the Punjab National Bank. 9. In the case of Smt. Basavva Kom Dyamangouda Patil vs. State of Mysore and Another, (1977)4 SCC 358 , the Apex Court had observed that the object of the various provisions of the Code appears 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. 10. 10. Due regard being had to the facts and circumstances of the case, it would only be appropriate to follow the observations of the Apex Court in Sunderbhai Ambalal Desai vs. State of Gujarat (supra) where the guidelines for order to release property belonging to the complainant/informant from whom it has been looted, as mentioned above, and has been seized in course of investigation. 11. Accordingly, this application is allowed and the Court below is directed to release the Government currency in favour of the petitioner after (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 12. In the result the impugned order is set aside and the application allowed with the aforesaid observations.