Karnataka High Court
Smt. Amrutha W/O H.B. Mallappa vs State By Anti Corruption Bureao on 28 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL REVISION PETITION NO.200033/2020
Between:
Smt.Amrutha W/o H.B.Mallappa,
Aged about 52 years,
Residing at "Apoorva" Nilaya,
Ward No.26, Sharavathi Nagar,
"A' Block, 1st Main Road, 2nd "A" Cross,
Shimogga - 577 201.
... Petitioner
(By Sri K.B.K.Swamy, Advocate)
And:
State by Anti Corruption Bureau,
Kalaburagi District,
Represented by its SPP,
High Court of Karnataka,
Kalaburagi.
... Respondent
(By Sri Subhash Mallapur, Spl.PP, for Lokayukta)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Code of Criminal
Procedure praying to set aside the order dated 13.03.2020
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passed by the Principal Sessions Judge, Kalaburagi in
Crl.Misc.No.17/2020 and consequently allow the application
of the petitioner filed under Section 451 and 457 of Cr.P.C
seeking interim custody of the Gold ornaments and cash of
Rs.22,80,600/- as shown in the Serial No.13, and sub-serial
No.41, 42, 95, 96, 97 in page 14, 15, and 16 of the house
search Mahazar, which are subjected to P.F.No.21/2017
dated 15.12.2017 and the gold ornaments in Serial No.43 to
49 and 81 to 103 and the cash as mentioned in Serial No.42,
73, 74, 75, 135, 136, 137 of the house search mahazar,
which are subjected to property Form No.20/2017 dated
15.12.2017 belonging to the petitioner, which were seized in
connection with Crime No.10/2017 registered by the
respondent ACB police, for the offence punishable under
Sections 13(1)(e) read with Section 13(2) of the Prevention of
Corruption Act.
This petition coming on for admission this day, the
Court made the following:
ORDER
(Through Virtual Court) The present Criminal Revision Petition is preferred under Section 397 and 401 of Cr.PC calling in question the order passed in Criminal Misc. No.17/2020 dated 13.03.2020 passed by the Court of Prl. Sessions Judge at Kalaburagi (hereinafter referred to as 'Special Judge' for brevity).
2. The petitioner has filed an application under Section 451 and 457 of Cr.PC before the Special Judge for 3 getting the release of golden ornaments and cash of Rs.22,80,600/- in her interim custody, which are seized in Crime No.10/2017 of ACB Police Station, Kalaburagi under PF No.21/2017 and under PF No.20/2017. The Special Judge has dismissed the said application and therefore being aggrieved by that the petitioner has preferred the present revision petition praying to release the golden ornaments and cash of Rs.22,80,600/- for her interim custody.
3. It is stated that the petitioner's husband was working as Executive Engineer, Small Irrigation Department, Government of Karnataka. When the respondent police conducted the raid on the houses situated at Shimoga and Bengaluru and seized some articles and among them are golden ornaments and cash of Rs.22,80,600/- under two different panchanamas. The respondent-police have drawn seizure panchanama and seized articles under two PF list i.e., PF No.21 and PF No.20. It is stated that golden ornaments were seized from both the houses situated at Shimoga and Bengaluru and cash of Rs.18,00,000/- was seized from the house of Bangalore and same is shown in PF 4 No.20. Cash of Rs.4,80,600/- was seized from the house situated at Shimoga, which is mentioned in PF No.21.
4. The learned counsel for the petitioner submitted that the seizure made in both the houses are not disputed and also has drawn panchanama in respect or seized articles. It is submitted that the petitioner is having agricultural income and out of that she has earned the golden ornaments and cash as above stated.
5. Further submitted that if golden ornaments are released for the interim custody of the petitioner, then the petitioner would undertake that she do not change the nature of the golden ornaments and the same are used for her daughter's marriage and after that whenever the respondent-police called for during investigation and in trial if the Special Court called for the said golden ornaments would be produced before the ACB Police or before the Special Court as the case may be. Further submitted that in respect of release of the cash above stated for interim custody of the petitioner, then it is not feasible to keep idle of the currency notes and these are meant for circulation. 5 Therefore, if the above said cash of Rs.22,80,600/- is released then she would file undertaking the value of the same and also do not dispute seizure of cash from the houses and in this regard she would also execute an indemnity bond and without disputing the said fact of seizure during the course of investigation and the trial, therefore with these submissions, the learned counsel prays for release of the above stated golden ornament articles and cash as interim custody in favour of the petitioner.
6. Per contra, the learned Special Public Prosecutor for the respondent ACB police submitted that still investigation is going on and final report is not yet filed. Therefore, at this stage, release of the articles above stated would amount to prejudice to the investigation and should be available for the purpose of investigation and therefore requested not to release the said golden ornaments and currency notes in favour of the petitioner and prays to dismiss the petition.
7. As per Annexure-F which is the seizure panchanama carried out in the house at Shimoga. It is 6 stated that the golden ornaments and currency notes were seized. Annexure-H is the panchanama carried out in the house at Shimoga having seized golden ornaments and cash as described in the said panchanamas.
8. The petitioner is seeking release of the articles seized in the course of raid which are Cash of Rs.22,80,600/- and gold ornaments in the house of the petitioner at Shimoga and Bengaluru. It is stated that gold ornaments as per seizure panchanama Annexure-F, which is carried in the house at Shimoga and Annexure-H which is carried in the house at Bengaluru. That the golden ornaments from these two houses were seized, which were morefully described in the said seizure panchanamas as per Annexures 'F' and 'H'.
9. Further cash of Rs.18,00,000/- was seized from the house at Bengaluru under panchanama as per Annexure-H and the remaining cash of Rs.4,80,600/- was seized from the house at Shimoga. Therefore, the learned counsel for the petitioner submitted that the petitioner is having agricultural income, hence the above said two articles 7 exclusively belongs to petitioner. Further submitted that the petitioner is not disputing the seizure of said cash and golden ornaments during the raid conducted by the respondent/police.
10. Further submitted that the petitioner would not change the nature of gold ornaments and same will be used for the purpose of performance of their daughter's marriage and after the marriage the same would be kept as it is and whenever the Special Court directs the petitioner to produce the gold ornaments then the same would be produced during the course of trial without changing the nature of the gold ornaments and without selling the same to anybody else.
11. Further submitted that the currency notes may be released after drawing up of mahazar. Further submitted that the currency notes may be released after drawing up of proper panchanama and by taking photographs and also for this the petitioner ready to execute bond. Further submitted that the cash is meant for circulation and petitioner is not disputing the 8 seizure of the said cash from both the houses during the raid and after drawing up of proper mahazar and taking photographs, the same may be released and in this regard the petitioner is ready to execute indemnity bond to the satisfaction of the court. Therefore, submitted that the seizure of articles if are kept idle then there would not be any use of them and also when the petitioner is admitted the fact of raid conducted and seizure of cash and golden ornaments as above stated, it would not cause any prejudice to the respondent/police during trial and the panchanamas, photographs can very well be produced and rely on during the course of trial and therefore for these reasons, prays to release the above stated cash and gold ornaments for interim custody in favour of the petitioner.
12. In this regard the learned counsel for the petitioner has relied on the orders of this court in Crl.Rev.P.No.2269/2013 dated 20.06.2014 and in 9 Crl.R.P.No.2200/2010 and connected cases dated 24.06.2010 and on the other hand the learned High Court Government Pleader appearing for the respondent vehemently opposed the petition and submitted that the order passed by the learned Special Judge is correct and if the cash and the golden ornaments are released for the interim custody of the petitioner then there are every chances of changing nature of golden ornaments and also selling the same and also circulating the cash in the market then the prosecution would lose the evidences to be produced during the trial before the Special Court. Therefore, submitted that when the release of the cash and the articles in favour of the petitioner for interim custody changes the nature of the articles and also may not be available for trial then it would cause prejudice to the prosecution case during the course of the trial. Therefore, prays to dismiss the petition.
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13. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat [AIR 2003 Supreme Court 638] by considering the application filed under Section 451 of Cr.P.C for release of the valuable articles and currency notes were pleased to lay down certain guidelines which are as follows ;-
"8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basavva 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 sought to speedy or natural decay. There may be other compelling 11 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."
9. 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.
10. 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
11. 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.
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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 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. "
14. Further this court in the case of Shanmukhappa K Dombar stated supra and in Shri Sanjay S.Patil cases were pleased to allow the petition and ordered to release the properties for interim custody of the accused with certain conditions.
15. In the present case also the seized articles from the two houses during the raid are a cash of Rs.22,80,600/- and gold ornaments as discussed above and more fully described in the seizure panchanamas which are produced as per Anneuxres 'F' and 'H'. The petitioner is not disputing the raid conducted by the respondent police and seized the said cash and gold 13 ornaments from the house at Shimogga and at Bengaluru and seizure panchanamas were prepared as per Annexures 'F' and 'H' in the respective houses, all these facts are not disputed by the petitioner.
16. As the Hon'ble Apex court in case as above cited, were pleased to observe with regard to the valuable articles as such gold ornaments and currency notes keeping in the police custody for years together is of no use. Therefore, has framed guidelines, the same may be released for interim custody of the accused, but with certain conditions and also after taking sufficient security preparing panchanama and by taking photographs. Therefore, when the petitioner is not disputing the seizure of the said currency notes and the gold ornaments from the house of the petitioner and the prosecution can very well to take benefit of the admissions made by the petitioner during the course of trial. Whether the said currency notes and gold 14 ornaments are amounting to disproportionate of assets, is a matter of fact to be tired before the Special Court during full fledged trial and this aspect is completely left with domain of the Special Court for consideration to come to a conclusion whether such seizure of gold ornaments and cash amounts to disproportionate of assets or not. But at this stage when the petitioner is admitting the seizure of articles from the house that can be made use of during the trial before the Special Court and keeping the said currency notes and gold ornaments in the custody of the police do not serve any purpose. Therefore, applying the ratio laid down by the Hon'ble Apex court stated supra, I deem fit to allow the petition and release the cash and gold ornaments stated in the seizure panchanamas as per Annexures 'F' and 'H', but with conditions as stipulated below. Therefore, the seizure of currency notes worth of Rs.22,80,600/- seized from the house at Shimoga and Bengaluru as per seizure panchanamas Annexures 'F' & 'H' and also the 15 gold ornaments seized during the raid conducted in the house at Shimogga and Bengaluru and recorded in the panchanamas Anneuxres 'F' & 'H' are hereby released in favour of the petitioner for her interim custody subject to following conditions and accordingly the petition is liable to be allowed and conditions are imposed as below:-
a) So far as gold ornaments are concerned :-
i. The Special Court/respondent police are directed to release the gold ornaments stated in the seizure panchanamas as per Annexures F & H, in favour of the petitioner as interim custody after drawing up of proper panchamamas in this regard;
ii. The Special Court/respondent police shall take photographs of the gold ornaments at the cost of the petitioner and appraise the said gold ornaments by an expert appraiser and after obtaining the report from the appraiser shall be made part of record;16
iii. The petitioner shall not alter/change or characteristic of the gold ornaments and shall not to sell anybody else;
iv. The petitioner is directed to produce the gold ornaments during the course of trial before the Special Court when the Investigating Officer or the Special Court directs during the course of investigation or trial as the case may be;
v. The petitioner is directed to execute indemnity bond before getting release of the gold ornaments upon the valuation made by appraiser with two sureties to the same value.
vi. The petitioner shall file affidavit admitting seizure of golden ornaments from the houses at Shimoga and Bengaluru during the raid conducted by the respondent police.
b) So far as currency notes are concerned :-
i. The cash of Rs.22,80,600/- which is now deposited in the State Bank of India by the Investigating Officer shall be released as interim custody in favour of petitioner subject to condition 17 that the petitioner shall execute indemnity bond of the same amount to that effect;
ii. The petitioner shall furnish two solvent sureties for the same value i.e., Rs.22,80,600/- each;
iii. The petitioner shall file affidavit admitting seizure of currency notes from the houses at Shimoga and Bengaluru during the raid conducted by the respondent police.
With these above stated observations, the petition is allowed and disposed off.
Sd/-
JUDGE sn