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2010 DIGILAW 3623 (ALL)

Ghanshyam v. State Of U. P.

2010-12-01

RAJ MANI CHAUHAN

body2010
Hon'ble Raj Mani Chauhan, J. 1. Heard the learned counsel for the petitioner and Sri Rajendra Kumar Dwivedi, learned A.G.A. as well as perused the documents available on record. 2. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code') has been filed by the complainant-petitioner for quashing the impugned order dated 3.6.2010, passed by the learned Special Judge (Gangster), Gonda in Criminal Misc. Case No. 15 of 2010 by which the learned Special Judge has rejected the application moved by the complainant-petitioner for releasing the currency notes in his favour. 3. The relevant facts giving rise to the present petition, in brief, are that on the written report of the complainant-petitioner, the police of Police Station Pachapedwa,District Barlrampur, registered a case under Section 406 I.P.C. against the accused Banshidhar. During the course of investigation as many as six persons were said to have been arrested by the police in police encounter case. The accused were interrogated and searched by the police. On interrogation,? accused? confessed their involvement in commission of? loot and an amount of Rs. 3,00,000/- was recovered from their possession. The amount was seized by the police which was deposited in Mal-khana and later on it was transmitted to the treasury. The accused were challaned under Sections 392, 411, 120-B I.P.C. and 3(1) U.P. Gangster Act. The complainant-petitioner thereafter moved an application under Section 451/ 457 of the Code for releasing the amount of Rs. 3,00,000/- recovered by the police from the possession of the accused claiming the amount to be his own. On the application of the complainant-petitioner, the learned Special Judge (Gangster), Gonda called the report from the police station concerned and after perusal of the police report, he found that it was a case property which was to be produced before the court during the trial. Therefore, he did not think it proper to release the amount in favour of the complainant-petitioner. Consequently, he by impugned order rejected the application which has given rise to the present petition. 4. The submission of the learned counsel for the petitioner is that the currency notes recovered from the possession of the accused cannot be withheld by the court till conclusion of the trial only on the ground that it was a case property. Consequently, he by impugned order rejected the application which has given rise to the present petition. 4. The submission of the learned counsel for the petitioner is that the currency notes recovered from the possession of the accused cannot be withheld by the court till conclusion of the trial only on the ground that it was a case property. Although the currency notes are kept in treasury but the same belongs to the petitioner, therefore, he is entitled for custody of those currency notes in view of the provision under Section 457 of the Code. The case property like currency notes, ornaments and other valuables etc. cannot be withheld by the court only on the ground that such property is a case property. The impugned order passed by the learned Special Judge (Gangster) is bad in the eyes of law and is liable to be quashed. The learned counsel for the petitioner has placed reliance in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat [SLP (Crl.) No. 2745 of 2002 with C.M. Mudaliar Vs. State of Gujarat, [SLP (Crl.) No. 2755 of 2002] reported in (2002) 10 Supreme Court Cases 283, decided by the Hon'ble Apex Court and Vasudev Kesarwani Vs. State of U.P. (Cr.R. No. 319 of 1995), decided by this Court. 5. Learned A.G.A. opposed the petition and supported the order passed by the learned Special Judge (Gangster), Gonda. 6. Considered the submissions of the learned counsel for the petitioner and learned A.G.A. 7. In view of the law laid down by Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (Supra) as well as by this Court in the case of Vasudev Kesarwani, the currency notes and ornaments etc. which are case property cannot be withheld by the court till disposal of the trial only on the ground that such properties are case properties. The valuable articles like ornaments , domestic articles and currency notes etc. which are case property can be returned to the person entitled to the possession thereof.? Section 457 of the Code lays down the provision for releasing the property seized by the police? which is not produced before the court during inquiry or trial.? The provision under Section 457 of the Code is being extracted below:- "457. which are case property can be returned to the person entitled to the possession thereof.? Section 457 of the Code lays down the provision for releasing the property seized by the police? which is not produced before the court during inquiry or trial.? The provision under Section 457 of the Code is being extracted below:- "457. 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. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the dae of such proclamation." 8. As per requirement of the provision under Section 457 of the Code, the property which has been seized by the police under the provision of the Code and has not been produced before the 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. In this case, what was required to the learned Special Judge is that he had to ascertain as to who? was entitled to the custody of the currency notes. After ascertaining the person entitled to the custody of currency notes he should have passed order for custody of currency notes in view of the provision under Section 457 of the Code. was entitled to the custody of the currency notes. After ascertaining the person entitled to the custody of currency notes he should have passed order for custody of currency notes in view of the provision under Section 457 of the Code. The learned Special Judge had rejected the application only on the ground that it was a case property which was required to be produced during the trial but the custody of currency notes could not be denied by the learned Special Judge; rather the property could be disposed of by him in accordance with the provision under Section 457 of the Code. The impugned order passed by the learned Special Judge is in violation of provision under Section 457 of the Code which is bad in the eyes of law and is liable to be set aside and the matter deserves to be remanded back to the learned Special Judge (Gangster), Gonda with the observation that he will dispose of the application moved by the complainant-petitioner in view of the provision under Section 457 of the Code as referred above after ascertaining as to who is entitled to the possession of the currency notes. 9. The petition is, therefore, allowed. The impugned order dated 3.6.2010, passed by the learned Special Judge (Gangster), Gonda in Criminal Misc. Case No. 15 of 2010 is set aside. The matter is remanded back to the learned Special Judge (Gangster), Gonda with the observation that he will dispose of the application moved by the complainant-petitioner afresh in view of the provision under Section 457 of the Code? as referred above.