Karnataka High Court
Jakeer Husen S/O Sharief Khan vs The State Of Karnataka on 5 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1656, 2019 (4) AKR 718
Author: K.Somashekar
Bench: K. Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL PETITION NO.101348/2019
BETWEEN
JAKEER HUSEN S/O SHARIEF KHAN
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: NO.602, I BLOCK, NAYAKANHATTI,
CHALLAKERE, DIST: CHITRADURGA-577536.
... PETITIONER
(BY SRI.R.H.ANGADI, ADV.)
AND
THE STATE OF KARNATAKA
(VIDYAGIRI POLICE STATION,DHARWAD),
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER DATED
01.07.2019 IN CRL.RP.NO.65/2019, BY THE PRL. DIST. &
SESSIONS JUDGE, DHARWAD, CONFIRMING THE ORDER
PASSED IN VIDYAGIRI P.S. CRIME NO.74/2019, BY THE III-
ADDL. SENIOR CIVIL JUDGE & CJM, DHARWAD, DATED
31.05.2019, CONSEQUENTLY ALLOW THE APPLICATION FILED
BY THE PETITIONER UNDER SECTION 451 OF CR.P.C.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
:2:
ORDER
This Criminal Petition is directed against the order passed by the Court below in Crl. R.P. No. 65/2019 dated 01.07.2019, whereby confirmed the order passed by the learned III Addl. Senior Civil Judge & CJM, Dharwad, dated 31.05.2019 pertaining to the case in Crime No.74/2019 of Vidyagiri Police Station, consequently in this petition seeking to allow the application filed by the petitioner under Section 451 of Cr.P.C.
2. The factual matrix of this petition are as under:
The complainant namely G.R.Ravikumar filed the complaint before the respondent Police on 07.05.2019, inter alia contending that the complainant who is cultivating the land to the extent of 25 acres in which he is growing Bittle Nut, Pomegranate, Papaya. Apart from that he is also engaged in travel business. The complainant knew a person by name Fayaz from Davanagere, he informed that he will get gold at lesser price. Since he was also intending to purchase gold, by :3: believing the words of Fayaz, he spoke to his friend namely Jakeer Husen, the petitioner herein and both have come to Hubballi on 04.04.2019, that they reached Dharwad and entered a house namely "Matha Pitru Chaya" situated at Rajatgiri area. When they entered the house they met some persons, through the person namely Moulana and after holding discussion, he came to know that he will get gold items at lesser price. He has further contended that on 06.04.2019 he received a phone call from one Girish and Prakash, accordingly, the complainant came to Dharwad for purchase of gold items. Accordingly, on 07.05.2019 at around 7 a.m. the complainant who carried cash in a sum of Rs.12 lakhs and the petitioner herein carried Rs.3 lakhs, and they were accompanied by a goldsmith by name Raju. When they entered into the said house when they were having dialogue in respect of transaction as already discussed in between them, the accused have cheated the complainant by committing the offences under Sections 420 and 395 of IPC. The same has been lugged against :4: the accused in Vidyagiri Police Station Crime No.74/2019. On filing of the complaint by the complainant against the accused, crime came to be registered and thereafter the Police have recovered an amount of Rs.15 lakhs owned by the present petitioner and his friend. To that effect Vidyagiri Police have proceeded for investigation and recovered amount in a sum of Rs.15 lakhs. The said amount has been subjected in P.F. No.45/2019 dated 10.05.2019.
3. The petitioner herein has lost his money in a sum of Rs.3 lakhs. Therefore, he has filed an application under Section 451 read with Section 454 of Cr.P.C. for releasing the said amount which is subjected in P.F. No.45/2019. However, the said application came to be rejected by the Court of the III Addl. Sr. Civil Judge & CJM, Dharwad. Subsequently, the petitioner herein filed a criminal revision petition before the revisional Court in Crl. R. P. No. 65/2019 and the said petition also came to be dismissed in its order 01.07.2019 by confirming the order passed by the Court of the Addl. :5: Sr. Civil Judge & CJM, Dharwad. Therefore, it is clear that this petitioner, who carried in a sum of Rs.3 lakhs was recovered by the Investigating Officer during the course of the investigation and the same has been subjected to P.F. No.45/2019 dated 10.05.2019.
4. The learned counsel for the petitioner herein who has taken me through the averments made in the complaint and so also the contents entered in P.F. No.45/2019 relating to Vidyagiri Police Station Crime No.74/2019. The accused are involved in offences under Sections 420 and 395 of IPC. But subsequent to registration of the crime against the accused, the investigation is taken and charge sheet is also laid against the accused. To substantiate the source of his income, the petitioner has produced important documents, like receipt worth Rs.3 lakhs. Despite of production of this receipt, the Courts below have failed to consider the grounds as urged in the application for releasing the amount in a sum of Rs.3 lakhs, which has :6: been subjected in P.F. No.45/2019 relating to Vidyagiri Police Station Crime No.74/2019.
5. In support of his contention, the learned counsel has produced the order passed by a co-ordinate Bench of this Court in Crl. P. No.4090/2005 dated 12.12.2005, which is a decision relating to the petition filed under Section 482 of Cr.P.C., wherein it was filed seeking to set aside the order dated 04.05.2005, 26.07.2005, 28.09.2005 and so also 30.09.2005, passed by the Fast Track Court-IV, Bangalore in S.C. No. 99/2005.
6. The petitioner herein is aggrieved by the order passed by the Courts below relating to the releasing of the currency seized in Crime No.74/2019 of Vidyagiri Police Station wherein the application filed by him under Sections 451 and 454 of Cr.P.C. seeking release of the recovered amount in a sum of Rs.3 lakhs which has been kept in the custody either in the Court as where the FIR has been submitted and also the P.F. No.45/2019. He contended that, no purpose will be :7: served if the amount is kept in the Court custody as that amount belongs to this petitioner. He has produced the receipt for having substantiated the source of income. Whereas in that judgment the Apex Court decision was also referred in Sunderbhai Ambalal Desai Vs. State of Gujarat (ILR 2003 KAR 2243) while dealing with similar nature regarding the interim custody of the currency notes and valuable articles, at paragraph No.3 has held as under:
"3. Valuable Articles and Currency Notes With regard to valuable articles, such as golden or sliver 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.
For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or :8: dacoity has taken place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchanama 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.
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 or such articles are attested or countersigned by the complainant, accused 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.
In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized :9: or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."
7. The aforesaid judgment and also the dictum laid down by the Hon'ble Apex Court, it is clear that the seized currency notes be handed over to the petitioner being the complainant after drawing proper panchanama relating to the currency notes in a sum of Rs.3 lakhs seized by the Investigating Officer during the course of investigation of Crime No.45/2019 and also : 10 : subjected to photographs of such currency notes and also taking proper security, and even additional conditions may be imposed while releasing the materials depending on the facts of this case.
8. The counsel for the petitioner is submitting that the judgment which is rendered by this Court and so also the dictum laid down by the apex Court, are clearly applicable to the present case on hand and the same may be applied and set aside the order passed by the Court below in Crl. R.P. No.65/2019 dated 01.07.2019, whereby confirmed the impugned order passed by the Court of the III Addl. Sr. Civil Judge & CJM, Dharwad in Vidyagiri Police Station Crime No.74/2019.
9. On the other hand, learned Govt. Pleader has taken me through the complaint indicating the involvement of the accused in Crime No.74/2019 for the offences punishable under Sections 420 and 395 of IPC. The accused are required to be facing of trial for the aforesaid offences. Therefore, the currency notes in a : 11 : sum of Rs.3 lakhs is said to have been recovered at the instance of the accused during the course of investigation. The same has been subjected under P.F. No.45/2019. The said currency notes are required to the prosecution for the purpose of identification during the course of trial. Though the judgment rendered by this Court and so also the dictum laid down by the Hon'ble Apex Court, regarding handing over of seized currency notes, however, it is clear the same is required during the course of trial. Therefore, the reliance placed by the learned counsel for the petitioner be considered but the panchanama relating to that currency notes said to have been seized and P.F. No.45/2019 be drawn and also subject the currency notes to photographs. So also, other requisite conditions are very much required as where the accused are required are required to be facing of the trial for the offences punishable under Sections 420 and 395 of IPC.
10. It is in this backdrop of the contentions taken by the learned counsel for the petitioner and so also the : 12 : counter made by the learned Govt. Pleader for the respondent-State, but it is relevant to state that the case in Vidyagiri Police Station Crime No.74/2019 came to be registered, it is based upon the complaint filed by the complainant, but subsequent to registration of the case against the accused, the case is taken up for investigation and charge sheet is laid in C.C. No.2581/2019 for the offences punishable under Sections 420 and 395 of IPC. Since the offences are triable by the Court of Sessions, the case is yet to be committed. However, in the presence of the petitioner being the complainant, the Investigating Officer has recovered the amount in a sum of Rs.3 lakhs and the same has been subjected under P.F. No.45/2019 dated 10.05.2019. The petitioner who has produced the receipt worth of Rs.3 lakhs for having sold the pomegranate relating to substantiate the source of income. Therefore, in this petition, it is requires to be stated that without expressing any opinion on the merits of the matter, as where the accused is required : 13 : to be facing of the trial in Crime No.74/2019 for the offences punishable under Sections 420 and 395 of IPC and moreover the Investigating Officer has laid the charge sheet against the accused. Therefore, it is requires to be stated and also in view of the law laid down by the Hon'ble Supreme Court and so also the co- ordinate Bench of this Court in Crl. P. No.4090/2005, it is requires to be intervention of the impugned order which is challenged in this petition.
11. There is no dispute about the petition filed under Section 482 of Cr.P.C. it is to be exercised sparingly, judicially, judiciously and cautiously. But in the instant petition, in view of the dictum laid down by the Hon'ble Supreme Court, I deem it proper to hand over the seized currency notes to the owner-petitioner, being the complainant, but subject to conditions. Consequently, the petition is hereby allowed by setting aside the order passed by the Court of the Principal District & Sessions Judge, Dharwad in R.P. No.65/2019 dated 01.07.2019, whereby rejecting the petition by confirming the order : 14 : passed by the Court of the III Addl. Sr. Civil Judge & CJM, Dharwad dated 31.05.2019 in Vidyagiri Police Station Crime No.74/2019 whereby rejecting the application filed under Section 451 read with Section 457 of Cr.P.C.
In view of setting aside the impugned order, the application filed by the petitioner under Section 451 read with Section 457 of Cr.P.C. is hereby allowed for release of the seized liquid property, such as, cash in a sum of Rs.3 lakhs seized by the Investigating Officer and subjected under P.F. No.45/2019 subject to the following conditions.
1) Getting detailed proper panchanama prepared relating to the currency notes in a sum of Rs.3 lakhs seized in Crime No.74/2019 of Vidyagiri Police Station, Dharwad. The said panchanama should be drawn by the Sheristedar (Admn.) of the Court of the III Addl. Civil Judge & CJM, Dharwad, in the presence of two panch witnesses and in the actual and : 15 : physical presence of the Presiding Officer of the Court;
2) Subject the currency notes to photographs at the expenses of the State.
The photographs of such currency notes in a sum of Rs.3 lakhs shall be taken in the presence of Sheristedar (Admn.) of the Court of the III Addl. Civil Judge & CJM, Dharwad, in the presence of two panch witnesses and in the actual and physical presence of the Presiding Officer of the Court. The photographs shall be preserved by the concerned Court for marking as exhibits in the evidence of witnesses during the course of trial.
3) The Sheristedar (Admn.) of the Court of the III Addl. Civil Judge & CJM, Dharwad, in the presence of two panch witnesses and in the actual and physical presence of the Presiding Officer of the Court shall subject that the photographs of currency notes are tested and countersigned by the petitioner;
4) After taking self bond to the extent of Rs.3 lakhs with one surety for the like sum, : 16 : the amount shall be handed over to the petitioner-complainant.
With the aforesaid directions, the petition stands disposed of.
Sd/-
JUDGE Rsh