Karnataka High Court
Kausar Khaleem vs State Of Karnataka on 29 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.8332/2019
BETWEEN:
Kausar Khaleem
W/o Khaleem Subhanm
Aged about 58 years
Flat No.B-2, No.500,
Choudhary Enclave
8th Cross, 1st Stage
3rd Block, HBR layout,
Bengaluru-560 043.
...Petitioner
(By Kum. Raksha Keerthana K., Advocate for
Sri Kemparaju, Advocate)
AND:
State of Karnataka
by K.G.Halli Police Station
Represented by its State Public Prosecutor
High Court Complex
Bengaluru-560 001.
...Respondent
(By Sri H.R.Showri, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to release the seized golden ornaments
in Crime No.169/2018 before the Hon'ble XI Additional
Metropolitan Magistrate Court, Mayo Hall, Bengaluru,
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in C.C.No.60455/2018 passed on 16.07.2019 and set
aside the said order and release the gold ornament in
the above case.
This Criminal Petition coming on for dictating
orders this day, the Court made the following:
ORDER
This petition has been filed by the petitioner/applicant under Section 482 of Cr.P.C. to set aside the order dated 16.07.2019 passed by the XI A.C.M.M., Bengaluru in C.C. No.60455/2018.
2. I have heard Smt. Raksha Keerthana K, learned counsel for the petitioner and learned High Court Government Pleader for respondent - State.
3. One Ajam Pasha filed a complaint alleging that Shabanam hajira and her husband by playing fraud, borrowed some money of Rs.15 lakhs from the complainant in order to improve their business and promised that they would give some profit amount to the complainant but they failed to -3- keep their promise and a complaint was registered. On the basis of the complaint, a case was registered in Crime No.169/2018. Accused persons have been apprehended and some gold articles have been seized. It is contended that the petitioner has also given some gold articles to the accused. The seized articles belongs to the applicant. In that light, an application came to be filed under Sections 451 and 457 of Cr.P.C. for release of gold articles recovered in Crime No.169/2018 vide P.F. No.59/2018.
4. The main grounds urged by the learned counsel for the petitioner are that the impugned order passed by the lower Court is not in accordance with law and without keeping in view the proposition of law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC -4- 283 has erroneously passed an order. It is further submitted that the said gold articles belongs to the applicant and she has purchased them and further submitted that even the trial Court has not passed a legal and effective order. It is her further submission that no other rival compliant has come before the Court contending that the said gold of 1212 grams is belongs to anybody. Even the trial Court only on the ground that the petitioner has not established the identity and the ownership, the application came to be rejected. It is her further submission that the petitioner has produced photos of herself and her daughter - in - law and her relatives for having worn the said articles by them in a family function. Even though the said evidence is available, without taking into consideration of the said articles, the trial Court has rejected the application. She further submitted that the -5- petitioner/applicant is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds, she prayed to allow the petition.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the trial Court has discussed the matter in detail and thereafter has come to the conclusion that the petitioner/applicant is not entitled for interim custody of the said gold ornaments. It is his further submission that the petitioner/accused has claimed a property more than what has been mentioned in her statement. Taking in to consideration of the said aspect, the trial Court has come to a right conclusion and has rightly dismissed the application. It is his further submission that there are no good grounds made by -6- the petitioner so as to allow the petition. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. It is not in dispute that in PF No.59/2018, some gold ornaments have been seized from the possession of the accused. It is also not in dispute that no rival claimants have made in application wherein, the said gold articles were belonging to them. It is the specific contention of the petitioner that she has purchased the said articles and they have been kept with the accused and the same have been seized and she is entitled to the said property. In order to substantiate the said fact, she has also produced the photographs -7- for having worn the said gold articles by herself and her daughter-in-law and relatives. The statement of the witness recorded under Section 161 of Cr.P.C. wherein, she has deposed with regard to giving of the gold articles. But the trial Court has come to the conclusion that the description of the gold ornaments have not yet been given in that light, the application came to be dismissed. But when there is no rival claimants and the petitioner/applicant has came up with a specific case that the said gold articles are belonging to her and the same may be released then under such circumstance, the Court ought to have exercised the power and discretion. In view of the ratio laid down in the case of Sunderbhai Ambalal desai Vs. State of Gujarat (quoted supra) therein, the Hon'ble Apex Court has observed that any seized articles including the gold articles cannot be kept either in malkhana/police -8- station or the Court for a longer period more than 15 days and the Court has to see the minimum release of interim custody that the petitioner is entitled for the same. It is well settled proposition of law that the detail discussions is also not required for the purpose of interim custody. In the light of the ratio laid down in the above decision and as there are no rival claimant as contended that the said gold articles are belonging to her. In that light, I am of the considered opinion that the petitioner/applicant has made out a case so as to allow the petition and the trial Court without looking into the proposition of law has gone in depth and on wrong footings and the petition came to be dismissed but the said order is frivolous and not sustainable in law. In that light, the said order is liable to be set aside.
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8. Taking into consideration of the above said aspect, the petition is allowed and the order dated 16.07.2019 passed by XI A.C.M.M., Bengaluru in C.C. No.60455/2018 is set aside.
The Court below is directed to release the gold ornaments mentioned in PF No.59/2018 to the petitioner/applicant on proper identification and acknowledgment and she has to produce the relevant document and materials to substantiate the fact that the said gold articles belongs to her and she has to execute a personal Bond for a sum of Rs.2,00,000/- with two sureties for the likesum to the satisfaction of the trial Court and it is further directed that she shall not change the design, colour of the gold ornaments in any manner till the disposal of the case. The trial Court is directed to take the photographs of the said gold ornaments
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from all angle and get an affidavit from the petitioner/applicant to the effect that the said gold articles/ornaments will be produced as and when they are required for the purpose of identification and for proving the case. Petitioner/applicant is also directed to produce the said articles/ornaments and she should not alienate or disturb or create any charge over on the said articles till the disposal of the case.
Only on establishing the fact that the said gold articles belong to her, the trial Court is directed to release.
Sd/-
JUDGE VBS