Orissa High Court
Shyam Meher And Anr. vs State Of Orissa on 20 July, 2005
Equivalent citations: 2005(II)OLR398
Author: N. Prusty
Bench: N. Prusty
JUDGMENT N. Prusty, J.
1. This revision application has been filed against the order dated 13.5.2005 passed by the learned J.M.F.C., Loisingha in G.R.Case No. 18 of 2005 rejecting the prayer of the petitioners for release of the seized cash (currency notes) under Section 457 of the Code of Criminal Procedure.
2. Heard Mr. Choudhury, learned counsel for the petitioners and learned Additional Standing Counsel for the State.
3. The learned Trial Court in the impugned order has observed in unequivocal term that "Though prima facie, it appears that the petitioners are entitled for possession of the cash so seized as those were recovered immediately after it was stolen from the accused persons and their acquisition but the identification of the cash so seized is required in course of trial as submitted by the learned A.P.P. as its release may affect the course of justice at the time of trial."
4. Mr. Choudhury, learned counsel for the petitioners submits that admittedly the cash, which has been seized, was snatched away from the petitioner No. 1/Shyam Meher while Shyam Meher was proceeding to Bolangir to purchase cloth in a motor cycle alongwith his brother/petitioner No. 2 and one Sachita Mahaling. As such the cash belongs to Sham Meher. Petitioner No. 2 Kshyamanidhi Meher (brother of the petitioner No. 1), lodged the FIR. In the FIR, it has been categorically stated that his elder brother had kept Rs. 30,000/- four persons came in an Ambassador Car bearing Regd. No. WMF 0826, snatched away the money on threatening him and giving him a fist blow and went back in the same Ambassador Car. The detail description of all the four accused persons was also given in the FIR. The cash amounting to Rs. 29,100 was seized by the police immediately after the occurrence and there is no doubt that the cash belongs to the petitioner No. 1. As such, he being the owner of the seized cash is legally entitled to receive the same. The cash needs no identification during the trial. Keeping in view the facts and circumstances stated above, it would have been appropriate on the part of the learned trial Court to release the cash in favour of petitioner No. 1 under Section 457 of the Code of Criminal Procedure.
5. In support of his contention, learned counsel for the petitioners relied upon and cited the decision of the Hon'ble Apex Court in the case of Sunderbhai Ambala Desai v. State of Gujarat reported in (2003) 24 OCR (SC) 444, wherein it has been specifically observed in Paragraphs 11 to 14 that :
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 year 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, the 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.
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, 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. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in Police custody, it would be open to the SHO after preparing proper panchanama 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."
6. Learned counsel for the petitioners further in support of his contention has cited the decision of this Court in the case reported in 2004 (I) OLR 497 (Yaswant Porwal v. State of Orissa) in which after thorough discussion of the above cited decision of the Hon'ble Apex Court, seized ornaments and the cash were directed to be released in favour of the petitioner therein, after observing all formalities.
7. Considering the submissions made by the learned counsel for both the parties, after going through the aforesaid two cited decisions and keeping in view the facts and circumstances of the case as well as the prosecution case itself that the seized cash was snatched away from Petitioner No. 1, Shyam Meher by the accused persons on threatening him and giving him a fist blow and immediately thereafter the cash was seized from the possession of the accused persons and from their houses on being led by their family members, I am of the considered view that there was no reason for the learned J.M.F.C., Loisingha to reject the prayer of the petitioners for release of cash in their favour, even after it has been observed by the learned Court below that "the petitioners are entitled for possession of the cash so seized as those were recovered from the accused persons immediately after it was stolen."
8. In view of the above, the impugned order dated 13.5.2005 passed by the learned J.M.F.C., Loisingha in G.R.Case No. 18 of 2005 is set aside. The learned J.M.F.C., Loisingha is directed to release the seized article/cash in favour of the petitioners after observing all the formalities as has been laid down by the Hon'ble Apex Court in the above cited case.
9. Criminal Revision application is accordingly allowed.