Madhya Pradesh High Court
Manappuram Finance Ltd. vs The State Of Madhya Pradesh on 20 March, 2015
1 Cr.R. No.2339 of 2013
Criminal Revision No.2339 / 2013
20.03.2015:
Shri Pradeep Sahu, Advocate for the applicant.
Shri Akhilendra Singh, Government Advocate for the
respondent- State.
This Revision under Section 397 /401 of the Code of Criminal Procedure, 1973, here-in- after referred to "the Code", has been filed by the applicant being aggrieved by the order dated 30.09.2013, passed by the learned trial Court, 5 th Additional Sessions Judge, Bhopal, in Sessions Trial No.411 /2012, whereby though the learned Court passed the order to give the subjected property valuing Rs.3.00 crores on supurdagi to the applicant, but also imposed certain conditions which cannot be implemented, hence challenged.
The facts of the case in brief is that on 23.08.2010 the accused persons committed robbery in Mannappuram Gold Loan Finance Company, Branch Hamidia Road, Bhopal and had taken cash and gold ornaments from the said Branch. Police registered the offence punishable under Section 395 and 397 of IPC under Crime No.431 /2010 and during investigation Police arrested the accused persons and seized gold ornaments and cash amount. After investigation the Police has filed challan against the accused for the offence punishable under Section 395, 397, 120- B of IPC, Section 25 /27 of Arms Act and sections 3, 10, 13, 16, 17, 18 and 20, Illegal Activity Act, 1967.
The applicant filed the application under Section 451 of the Code before learned trial Court whereby learned trial Court after recording the evidence passed the impugned 2 Cr.R. No.2339 of 2013 order of Supurdnama in favour of the applicant imposing certain conditions.
Learned counsel for the applicant submits that the conditions imposed by learned trial Court is bad in law, incorrect, improper and passed without application of mind. Learned trial Court failed to see that the applicant is the owner of the seized gold ornaments and articles. It is further submitted by learned counsel for the applicant that in the light of directions given by the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat , reported in AIR 2003 SC 638 learned trial Court cannot impose inappropriate conditions. It is also submitted by the learned counsel for the applicant that learned trial Court also observed that any other person is not come forward to claim the property. Even then learned trial Court imposed these conditions, which are harsh and cannot be complied with in its entirety. Learned counsel also pointed out that on furnishing Bank guarantee of Rs. 3.00 crores as per R.B.I. guidelines the applicant has to pay 5% i.e. Rs. 1,50,000 / - interest per annum which will be an unwarranted financial burden on the applicant, who is also worst sufferer this dacoity, in addition to these facts, the police has not recovered whole gold ornaments and cash and the trial can be taken more time than 05 years. It is also pointed out by the learned counsel for the applicant by filing news paper cutting Annexure A-3 that as per this news item the accused persons were absconded from Khandwa Jail.
Learned Government Advocate for the respondent- State vehemently opposed each and every contention made 3 Cr.R. No.2339 of 2013 by the learned counsel for the applicant and prays for dismissal of this revision.
After having heard learned counsel appearing on behalf of the parties and on perusal of the record I find that the impugned order dated 30.09.2013 passed by learned trial Court requires to be set aside for re-consideration.
The Apex Court in Sunderbhai Ambalal Desai case (supra) observed:-
"Valueable 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) perparing 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."
The case of the applicant squarely covers under above mentioned observations as valuable articles are mainly gold ornaments.
4 Cr.R. No.2339 of 2013In case of Sunderbhai Ambalal Desai (supra) the Lordship of the Supreme Court further observed in para 13 that:-
"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, accuses 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."
Taking guidance from case of Sunderbhai Ambabhai Desai (supra) following conditions were imposed by learned trial Court while passing impugned order that:-
(i) the seized gold ornaments and cash amount shall be released in favour of the applicant on furnishing the Bank Guarantee of Rs.3 Crores for a period of 5 years.
(ii) directed to furnish the Supurdnama of the same amount.
(iii) directed to produce the photographs of seized gold ornaments and other articles on its own expense before the Court.
(iv) also directed that the accused persons, his Advocate, Investigating Officer and also Special Public Prosecutor signed on each photographs.5 Cr.R. No.2339 of 2013
(v) applicant also mentions the articles names and its weight of each ornament on each photograph.
This fact need not to be repeated that the applicant is victim of dacoity and learned trial Curt further imposed condition No.(i) related with bank guarantee means recurring financial burden, hence this condition requires re- consideration.
Condition No. (iv) imposed by learned trial Court also requires re-consideration in light of news item Annexure A-13 that the accused persons were absconded from Kahndwa Jail, hence certainly not available for securing their signatures on the photographs etc. Learned trial Court is free to provide opportunity of hearing to learned counsels for the parties available and can re-impose condition No.(i) and (iv) by a speaking order. Learned counsel for the applicant will also submit their proposal for security of seized articles to give effectiveness before learned trial Court to ease these conditions.
Considering the totality of facts and circumstances, learned trial Court committed error of facts in exercise of his jurisdiction in allowing the application filed by the applicant, therefore, the impugned order is liable to be set aside and is accordingly set aside. Under these circumstances this application filed by the applicant is allowed.
The case is remanded to learned trial Court for re- consideration of the application of the applicant a fresh keeping these fats in mind (i) now condition of bank guarantee can be released and (ii) when the accused persons 6 Cr.R. No.2339 of 2013 are absconded from Jail, hence not available for their signature on each and every photographs then how this condition can be complied with by the applicant.
Learned trial Court is also directed to proceed with the matter in accordance with law and decide the case expeditiously, as early as possible.
The parties are directed to appear before the learned trial Court, Bhopal on 20 th April, 2015.
Office is directed to send a copy of this order to the learned trial Court for information and compliance.
Revision allowed accordingly.
(Subhash Kakade) Judge ak.