Karnataka High Court
K.W. Ganapathy vs State Of Karnataka on 11 June, 2002
Equivalent citations: 2002CRILJ3867, 2002 CRI. L. J. 3867, 2002 AIR - KANT. H. C. R. 2174, (2002) ILR (KANT) (3) 3751, (2002) 4 RECCRIR 499, (2002) 4 ALLCRILR 351
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. Government Advocate takes notice for the State.
2. The petitioner is the owner of a Zen car bearing No. KA-12-N-4699. The said car was stolen by the accused. On a complaint the police have registered a case and laid a charge-sheet in C.C. No. 269/2000 on the file of the Prl. JMFC, Virajpet. The prosecution version supports the contention of the petitioner that he is the owner of the car and was the subject matter of theft. The case is pending trial. The interim custody of the car was given to the petitioner under Section 457, Cr.P.C. by the JMFC, on certain conditions. The chief condition being that the petitioner shall keep the car in his custody intact and shall not alienate until the disposal of the case. After taking interim custody, the petitioner made another application before the JMFC submitting that the petitioner has taken finance from the Co-operative Bank while purchasing the car, the interest liability is mounting up and he is unable to make arrangements for repayment of the loan. Therefore, intends to sell the car for repaying the debt liability to the bank. In that connection, sought permission of the Court to permit him to sell the car. The trial Court rejected the request. In Crl. Revision Petition No. 13/2002, the Sessions Judge Kodagu, confirmed the order of the JMFC and rejected the revision. Being aggrieved the present petition is filed.
3. According to the material discussions made in the impugned orders, it appears that there are three accused in the criminal case and accused Nos. 2 and 3 are in judicial custody. Accused No. 1 is absconding. Perhaps the case against accused No. 1 is likely to be split up. Even assuming the case against accused Nos. 2 and 3 is expeditiously concluded, for want of other accused split up charge-sheet would be pending and the . petitioner has to suffer the restrictions of the conditional order prohibiting alienation till the disposal of the case. It is not known when the absconding accused is likely to be traced and the trial against him will be concluded. The indefinite and uncertain situation pestering the complainant prompted him to make an application to permit him to alienate the car.
4. After hearing the counsel for the State and the petitioner, I find that the grievance made out by the petitioner is genuine. Of course, in the usual course of routine conditional orders are passed while delivering the property to the interim custody. When the property has any evidentiary value, it is to be kept intact and to ensure its production during the course of evidence for the purpose of marking as a material object the condition of non alienation is imposed. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452, Cr.P.C, the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.
5. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. Many a time, we find as a routine course, the Courts impose condition of non alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their lawful ownership rights.
6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful, owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.
7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non alienation from exercise of right ownership for unreasonable length of time would be too harsh and one sided, and a non chalant approach towards the victims of crime. It may be that X require the gold jewellery for the purpose of the marriage of his daughter or may be that he may require funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non alienation.
8. In order to ensure the recovery of value, it is necessary that the trial Court shall take all necessary diligent steps to get the market value of the property, correctly assessed the photography of the property,, properly taken depicting all its features and dimensions and before the property is delivered to the interim custody, the photographs have to be certified by the Magistrate. Further necessary bonds and security to be taken from the person to whom interim custody to be given for the value of the property in order to ensure prompt recovery of value from the person to whom interim custody is given. By following the said safeguards, it is no longer necessary to follow the archaic convention of imposing condition of non alienation. After all the Court while passing a judicial order of interim custody is guided by the investigation material and other prima facie material, which support the claim and title of the person to whom interim custody is given. Having once given the interim custody to the person who is supposed to be the owner of the property, depriving him to effectively use and exercise the lawful ownership rights would be unlawful.
9. In the instant case, the vehicle in question is a car and it has no evidentiary value, it is only required for the purpose of passing final orders under Section 452, Cr.P.C. Therefore, to ensure the recovery of its value, it is suffice only necessary bonds and security is to be taken from the petitioner to recover the value from him in the event of final orders going adverse to him.
10. In view of the reasons and discussions made above, it was not proper on the part of the trial Court and Sessions Court to have rejected the request of the petitioner moreso when he makes out a grievance of accumulating debt liability.
11. The petition is allowed. The petitioner is permitted to sell the car in his own way. But however, before he sells the car, Magistrate should get the market value of the car, as on date to be assessed and necessary bonds with one surety to be taken for the proportionate value of the property assessed and the petitioner shall deposit the value before the trial Court in the event of final orders going against him.
The Registrar General directed to circulate the copy of this order to all the Sessions Judges and Magistrates in the State for proper compliance.