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2016 DIGILAW 106 (MAD)

Santhappan v. Inspector of Police

2016-01-08

M.VENUGOPAL

body2016
ORDER : 1. The Revision Petitioner/Petitioner has preferred the instant Criminal Revision Petition as against the order, dated 13.7.2015 in Crl. M.P. No. 4279 of 2015, passed by the Learned Judicial Magistrate, Sankarankovil, Tirunelveli District. 2. The Learned Judicial Magistrate while passing the impugned order in Crl. M.P. No. 4279 of 2015 (filed by the Revision Petitioner as Petitioner) on 13.7.2015 had inter-alia observed that this case was filed under sections 420, 380 of IPC and that was at preliminary stage, without completion of enquiry and the Police had not filed the charge-sheet and at the time of the Petition enquiry (Crl. M.P. No. 4279 of 2015) even though on the side of the Respondent/Police, the Inspector of Police had not appeared but the Constable had appeared and in the notice had mentioned no objection and the same was not to be accepted and like-wise, the Petitioner(Revision Petitioner) in his petition, had mentioned that he was in difficult situation and in the present circumstance, if the Petitioner receives the money, he would be spending the same and also for the same amount, the case accused had also projected a petition and only during the time of trial of the case, it would be found out as to who is the owner of the money and moreover, when the investigation was at incomplete stage, at this stage, the Petition could not be allowed and resultantly, dismissed the Petition, in the interest of justice. 3. A mere running of the eye over the contents of the Petition in Crl. M.P. No. 4279 of 2015 filed before the trial Court by the Revision Petitioner(as Petitioner) under Section 451 of Cr. P.C. indicates that the Revision Petitioner/Petitioner had claimed a sum of Rs. 68,000/- to be handed over to him and he had also stated that in the event of the said money being handed over to him, he would not exchange the same and as such, prayed for handing over of the said amount to him. He had also stated that he was willing to hand over the said amount to the Court. 4. It comes to be known that the Respondent/Police before the trial Court in Crl. He had also stated that he was willing to hand over the said amount to the Court. 4. It comes to be known that the Respondent/Police before the trial Court in Crl. M.P. No. 4279 of 2015 had stated that money (case property) belong to the Petitioner and that he is the complainant in the case and has no objection for return of the said amount to him, subject to certain conditions. 5. The Learned Counsel for the Revision Petitioner/Petitioner/De-facto Complainant urges before this Court that the Learned Judicial Magistrate should have returned the amount of Rs. 68,800/- on the basis of no objection given by the Respondent/Police and in fact, the Respondent/Police had identified the Petitioner as well as the recovered amount, which belong to the Petitioner. 6. It transpires that the story of the Prosecution is that the Petitioner/Revision Petitioner/De-facto Complainant had lodged a complaint before the Respondent/Police on 24.01.2015 by stating that on 24.01.2015, at about 11.30 p.m., when he was going to drawn amount from SBI ATM, near Sankarankovil Petrol Bunk in Account No. 20023486324, one Sankar, son of Ayyanar, standing near the ATM and since he being (the Petitioner) an illiterate person, had approached the said Sankar to assist him in regard to the withdrawal of a sum of Rs. 1,000/- and he had given the ATM Card to the said person and who withdraw Rs. 1000/- from his account and thereafter, he left from the ATM. After five days, when the Revision Petitioner was again attempted to get money from SBI ATM, the board of the ATM displayed that there was no balance in his account and immediately, he rushed to the Manager of the Bank and on checking his account by the Manager, he was informed that a sum of Rs. 68,800/- was withdrawn yesterday under the guise of assistance given by the Sankar. Under these circumstances, the Revision Petitioner had lodged a complaint and the same was registered by the Respondent/Police in Cr. No. 249 of 2015. 7. It appears that the Respondent/Police after investigation, had arrested the accused Sankar and recovered the amount from him on 30.04.2015 at about 23.00 p.m. at Eddicheri Village in the presence of one Neethiraj and Lavakumar. Further, it is represented on behalf of the Revision Petitioner that the said amount of Rs. 68,800/- was produced before the Learned Judicial Magistrate, Sankarankovil, Tirunelveli District. Further, it is represented on behalf of the Revision Petitioner that the said amount of Rs. 68,800/- was produced before the Learned Judicial Magistrate, Sankarankovil, Tirunelveli District. The main grievance of the Revision Petitioner is that he hails from a poor family and doing agriculture work in his native and therefore, he is in immediate need of money in connection with his agricultural work. As such, he has filed the Crl. M.P. No. 4279 of 2015 praying to return the amount of Rs. 68,800/- which was recovered by the Respondent/Police. 8. At this stage, this Court, on going through the impugned order in Crl. M.P. No. 4279 of 2015, dated 13.07.2015 passed by the trial Court, it is evident that the trial Court had candidly observed that the accused had also filed a petition claiming the sum of Rs. 68,800/- recovered by the Respondent/Police. Obviously, in the present case, not only the Revision Petitioner/De-facto Complainant, but also the accused claim the right in respect of the sum of Rs. 68,800/- in question. When the Revision Petitioner/De-facto Complainant as well as the Accused had filed individual/separate petitions before the trial Court staking their claim in regard to the sum of Rs. 68,800/-, then in the considered opinion of this Court, both the applications ought to have been taken up by the trial Court for arriving at a particular decision. Unfortunately, the trial Court had not resorted to such a course. However, it had only dealt with Crl. M.P. No. 4279 of 2015(filed by the Revision Petitioner/De-facto Complainant) and disposed of the same by observing specifically that only during the trial of the main case, it would be found out as to who would be the owner of the amount in question. 9. At this stage, this Court very pertinently points out that as per Section 451 of Cr. P.C., when a court of Law deals with a petition for return of property, then it has to look into the aspect of possession and the aspect of possession of property alone. Ordinarily, the ownership of property and title issues will have to be decided by the competent civil Court, as opined by this Court, even the Police Statement recorded under Section 161 of Cr. Ordinarily, the ownership of property and title issues will have to be decided by the competent civil Court, as opined by this Court, even the Police Statement recorded under Section 161 of Cr. P.C. or under Section 25 of the Indian Evidence Act, 1852, may be looked into by a Court of Law while deciding petition/petitions for return of property filed by the respective parties. Also, it is to be pointed out that in the decision B. Lalith Chand Nadar vs. State and Another, 1990 2 (MWN)(CRL) 23, it is held that an order under Section 451 Cr. P.C. is only a temporary arrangement to provide custody with a proper person as the Court thinks fit. Even if such an individual is the owner of property, his custody of possession is only as representative of the Court and not in his own independent right, as opined by this Court. 10. It cannot be gainsaid that an order passed under Section 451 of Cr. P.C. is only transitory in character and will be in live force till the disposal of main case itself. Further, an enquiry under Section 451 Cr. P.C. ought not to be an elaborate one. In fact, a Court of Law determines only about the custody of the property concerned. It is true that powers given to the Magistrate under Section 451 of Cr. P.C. is summary in nature. In the light of up-short of detailed discussions and admittedly, two petitions were filed by the Revision Petitioner/De-facto Complainant and the accused. were very much before the trial Court for consideration, then this Court is of the considered view that the trial Court ought to have passed a common order in both petitions and thrashed out the claim made by the respective parties one way or other, of course, in the manner known to law and in accordance with Law. But such course was not resorted to by the trial Court and the trial Court had simply passed the impugned order in Crl. M.P. No. 4279 of 2015 filed by the Revision Petitioner which is incorrect one in the eye of law and that too, when the Respondent/Police had clearly stated before the trial Court that they had no objection for handing over of the recovered sum of Rs. 68,800/- to the Revision Petitioner/De-facto Complainant subject to the conditions being imposed by the trial Court. 68,800/- to the Revision Petitioner/De-facto Complainant subject to the conditions being imposed by the trial Court. At this stage, it cannot be forgotten that the Revision Petitioner/Petitioner is the De-facto Complainant in the case in Cr. No. 249 of 2015. Looking at from any angle, the impugned order passed by the trial Court in Crl. M.P. No. 4279 of 2015 suffers from material irregularities and patent illegalities in the eye of law. Consequently, the Criminal Revision Petition succeeds. 11. In fine, the Criminal Revision Petition is allowed. The impugned order, dated 13.07.2015 in Crl. M.P. No. 4279 of 2015 is hereby set aside by this Court for the reasons assigned in this Criminal Revision Petition. Consequently, the Crl. M.P. No. 4279 of 2015 filed by the Revision Petitioner/Petitioner/De-facto Complainant is directed to be restored to file and the Learned Judicial Magistrate, Sankarankovil is directed to pass orders afresh in Crl. M.P. No. 4279 of 2015 together with the Petition filed by the accused(seeking return of the sum of Rs. 68,800/- recovered by the Respondent/Police) and to pass a reasoned, speaking order in a dispassionate manner, uninfluenced and untrammelled with any of the observations made by this Court in the Criminal Revision Petition. In case, if the Criminal Miscellaneous Petition for return of property (under Section 451 of Cr. P.C.) filed by the accused was already disposed of by this time, then the trial Court is directed to pass orders afresh in Crl. M.P. No. 4279 of 2015 by passing a reasoned speaking order in qualitative and quantitative terms in accordance with Law. Liberty is granted to the Revision Petitioner/Petitioner/De-facto Complainant, the Respondent/Police and the Accused to raise all factual and legal pleas before the trial Court and to seek appropriate remedy, in the manner known to law and in accordance with law.