Allahabad High Court
Yatendra Singh vs State Of U.P. And Another on 15 March, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 755 of 2021 Applicant :- Yatendra Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nagendra Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Nagendra Kumar Singh, learned counsel for applicant and learned AGA for State.
2. This application under section 482 Cr.P.C has been filed challenging order dated 07.1.2020 passed by Additional Chief Judicial Magistrate, Chandausi, District-Sambhal in Case No. 275 of 2019 (State of U.P. Vs. Manoj and others) arising out Case Crime No. 63 of 2019 under Sections 389, 411, 419, 420 I.P.C. Police Station Rajpura, District-Sambhal, whereby application filed by applicant/informant dated 13.03.2020 for release of Rs.50,000/- has been rejected.
3. Record shows that in respect of an incident which is alleged to have occurred on 28.02.2019, a delayed F.I.R. dated 02.03.2019 was lodged by first informant/applicant namely Yatendra Singh and was registered as case Crime No. 63 of 2019 under Sections 389, 411, 419, 420 I.P.C. Police Station Rajpura, District-Sambhal. In the aforesaid F.I.R., an unknown person has been nominated as an accused.
4. Subsequent to aforesaid F.I.R. Police of Police Station, Rajpura proceeded with statutory investigation of above mentioned case crime number. During the course of investigation, Investigating Officer recovered certain goods and cash from accused -Sushil Kumar.
5. Thereafter, accused-Sushil Kumar filed a release application dated 06.04.2019 in terms of Section 457 Cr.P.C seeking release of seized goods. Magistrate concerned vide order dated 06.04.2019 allowed the release application.
6. After order dated 06.04.2019 was passed, applicant, who is informant, filed a release application dated 13.03.2020 praying therein that Rs. 50,000/- recovered from accused Sushil Kumar belong to applicant and therefore same be released in his favour. On the aforesaid release application, a report was called for by Magistrate from concerned Police Station. Accordingly, Police of Police Station-Rajpura, submitted a report dated 05.10.2020. In the aforesaid report, it was submitted that recovered cash belongs to applicant. However, accused-Shushil Kumar filed an objection dated 20.10.2020. Concerned Magistrate, ultimately vide order dated 07.11.2020 rejected the release application filed by applicant.
7. Perusal of order dated 07.11.2020 goes to show that concerned Magistrate has taken into consideration the previous release application filed by accused and the release application filed by applicant, police reports submitted in the aforesaid release application and the order passed on the release application filed by accused. However, ultimately, court below concluded that since there is a dispute between parties regarding the ownership of amount recovered, coupled with the fact that recovered cash is case property and trial is pending and further the reports submitted by Police are contradictory therefore no direction for release of same can be issued.
8. Feeling aggrieved by order dated 06.04.2019 applicant, who is informant, has now approached this Court by means of present application under Section 482 Cr.P.C.
9. Mr. Nagendra Kumar Singh, learned counsel for applicant in challenge to impugned order dated 07.11.2020 contends that impugned order passed by court below is manifestly illegal and without jurisdiction. Court below has rejected the release application filed by applicant without considering the necessity of retaining the seized amount. Reasons assigned by court below for rejecting release application filed by applicant are irrelevant. He further contends two contradictory orders have been passed in same proceedings.
10. Elaborating his submissions, learned counsel for applicant contends that the law with regard to release of seized goods with reference to sections 451 and 457 Cr.P.C. is no longer res-integra and stands crystalized by Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat (2002)10 SCC, 283. Reliance is placed upon paragraphs 6,7 and 14 of aforesaid judgement. Accordingly, same are reproduced herein-under:
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems 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. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
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.
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
14.In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."
11. Drawing a parallel with the observations made by Apex Court, which have been quoted herein above and the findings recorded by court below, it is urged with vehemence that court below has decided the release application filed by applicant in ignorance of above. It is thus sought to be urged that impugned order passed by court below is unsustainable in law and fact inasmuch as findings recorded therein do not commensurate with the observations referred to above. Court below having failed to consider the necessity of retaining the seized amount qua the criminal case have essentially ignored the law laid down by Apex Court which is otherwise binding by virtue of Article 141 of the Constitution of India.
12. Per contra, learned A.G.A. has opposed the present application. Learned A.G.A. has supported the findings recorded by court below by submitting that charge-sheet has been submitted. He has further submitted that in present case two contradictory reports have been submitted by Police. On account of above, no such material was available before court to direct release of seized amount in favour of applicant. He thus concludes that no illegality has been committed by Court below in rejecting the release application filed by applicant.
13. In rejoinder, learned counsel for applicant contends that in same circumstances, release of goods has been ordered in favour of accused, whereas in respect of release of cash, court below has refused to direct release. As such, contradictory orders have been passed in same proceedings, which is unsustainable.
14. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, Court finds that Court below has rejected release application filed by applicant without considering the mandate of law laid down by Apex Court in Sunderbhai Ambalala Desai (supra). Court below has not recorded any finding regarding the necessity of retaining seized amount. No attempt has been made by Court below to consider release of seized amount after taking adequate safe guards by way of security etc., as per the judgement of Apex Court referred to above.
15. Consequently, in view of discussions made above, present application succeeds and is liable to be allowed.
16. Accordingly, impugned order order dated 07.1.2020 passed by Additional Chief Judicial Magistrate, Chandausi, District-Sambhal in Case No. 275 of 2019 (State of U.P. Vs. Manoj and others) arising out case Crime No. 63 of 2019 under Sections 389, 411, 419, 420 I.P.C. Police Station Rajpura, District-Sambhal is hereby quashed. Matter is remanded to concerned Magistrate who shall decide the release application filed by applicant afresh in the light of observations made herein above, preferably within a period of one month from the date of production of a certified /computer generated copy of this order which shall be filed by applicant by means of an affidavit.
17. Application is, accordingly, allowed. Cost made easy.
Order Date :- 15.3.2021 YK