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2011 DIGILAW 45 (ORI)

Sanjaya Samanta v. State of Orissa

2011-01-20

I.MAHANTY

body2011
ORDER 20.01.2011 — Heard Mr. Mohapatra, learned counsel for the petitioner and the learned State Counsel. In this application under Section 401 read with Sections 397 & 451 Cr.P.C., the petitioner has sought to challenge the order dated 22.02.2010 passed by the learned S.D.J.M., Karanjia in C.M.C. No.02 of 2010, arising out of G.R. Case No.282 of 2009 rejecting the prayer of the petitioner to release the seized articles (ornaments). From the records it appears that the petitioner had lodged an F.I.R. at Raruan P.S. on 20.09.2009 stating therein that he was carrying a Jewellery shop at Charminar Bazar in Hyderabad district, Andhra Pradesh wherein one Parameswar Naik was working who was given two gold necklace with one locket fitted with diamond on 8.9.2009 for repair, but taking the said ornaments, he fled away from the shop. It further appears that after the FIR was lodged, the police investigated into the matter, apprehended the accused and the accused allegedly confessed to have taken two gold necklace with one locket fitted with diamond and the same were recovered from his possession. It further appears that the informant thereafter filed a petition under Section 451 Cr.P.C. seeking interim custody of the gold necklace and the locket and the same came to be rejected, inter alia, on the ground that even though the gold ornaments were recovered from the possession of the accused, the same was not placed for test identification. Mr. Mohapatra, learned counsel for the petitioner in support of his contentions has placed reliance on a decision of the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638 and in particular, on paragraphs, 9, 10, 11, 12 and 13 of the said judgment, which are quoted herein below : “9. The 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. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C., should be exercised promptly and at the earliest. Valuable Articles and Currency Notes. 11. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C., should be exercised promptly and at the earliest. Valuable Articles and Currency Notes. 11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. 12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant 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. 13. 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.” The learned State counsel has no objection if the present revision is disposed of with the directions to the trial Court as contained in the judgment of Sunderbhai Ambalal Desai (supra). Considering the aforesaid facts and keeping in view the judgment of the Hon’ble Supreme Court referred to above, the CRLREV is allowed and the impugned order dated 22.02.2010 is quashed. The learned S.D.J.M. is directed to act in consonance with the directions of the Hon’ble Supreme Court as noted herein above such as, preparing Panchanama, taking photographs and proper security. Urgent certified copy of this order be granted on proper application. Crl. Rev. allowed.