Calcutta High Court (Appellete Side)
Ganesh Chakraborty vs Unknown on 8 April, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1 08.04.2019
Item no.7 Ct. No.22 CHC C.R.R. No.310 of 2019 In Re:- An application under Section 482 of the Code of Criminal Procedure.
And In the matter of:-
Ganesh Chakraborty ... Petitioner Mr. Soma Kar Ghosh, ... for the petitioner Mr. Bikram Banerjee, Ms. Riya Das ... for the o.p./wife Ms. Sujata Das ... for the State The impugned order dated 4.12.2018 passed by learned Additional District Judge, 3rd Fast Track Court, Alipore, in Criminal Motion No.379 of 2018 rejecting the criminal revision and thereby affirming the order of the learned Magistrate dated 5.6.2018, passed by learned Chief Judicial Magistrate, Alipore in connection with Bhowanipur Police Station Case No.450 of 2017 under Sections 498A/406 I.P.C, allowing some of the seized items to opposite party/wife is the subject of challenge in this revisional application.2
According to learned advocate for the revisionist Bhowaipur Police Station Case No.450 of 2017, alleging commission of offence under Sections 498A/406 I.P.C. was filed about 18 years after the marriage by the wife/de-facto complainant/opposite party. The case was filed simply to harass the revisionist/husband. According to petitioner/husband, the locker was held by the petitioner along with his wife/opposite party jointly in the concerned bank, wherein valuable golden items, mostly given by the revisionist/husband to his wife upon purchase by spending own money of the husband, were kept deposited. The opposite party/wife on 8.3.2018 was favoured with an order from the learned Chief Judicial Magistrate, Alipore, whereby the Branch Manager, Allahabad Bank, Chakraberia Branch was directed to open the locker, held by both the parties, and to hand over the Stridhan properties to de-facto complainant/opposite party/wife as per her identification pursuant to inventory being made earlier in respect of the items deposited in the locker. Out of 14 items revealed in the inventory, 7 items were identified by the opposite party/wife claiming the same to be Stridhan properties. The learned court below by an order dated 16.4.2018, was pleased to give an opportunity to revisionist/husband seeing his claim over the seized items. Learned Magistrate was of the view, that when there was claim and counter-claim, over the articles seized, the opportunity of hearing 3 was felt necessary and, accordingly, directed both the parties to produce the document in support of their respective claim, so that the court could effectually pass the necessary order. The date was fixed accordingly on 20th April, 2018, when hearing was held in presence of both the parties, which was basically intended to extend an opportunity of hearing, keeping in mind the claim and counter-claim over the seized items. On the next date fixed i.e. on 5th June, 2018, the revisionist/husband could not ensure his presence before the learned court below for the reasons best known to him and accordingly, the court was pleased to return the 7 items, out of 14 seized and deposited in the bank locker to wife/opposite party giving a temporary custody upon execution of a bond of Rs.2,50,000/- with conditions that the opposite party/wife will not change the nature and character of the golden items, nor petitioner would cause any act causing depreciation of value of the golden ornaments with further condition to produce the same before the court, as and when the same would be called for.
Learned advocate for the revisionist/husband submitted that both the courts below committed a gross illegality by passing an order directing return of golden ornaments to wife/opposite party in the absence of the revisionist/husband. Thus, according to revisionist, the absence of the revisionist-husband should not be 4 treated as a fatal against him, for passing an order directing return of golden ornaments to opposite party/wife. Learned advocate for the revisionist/husband, thus, proceeded to impress upon the Court soliciting an opportunity of hearing in establishing the claim of the revisionist/husband over the seized items. Repelling the contention raised by the revisionist, the learned advocate for the opposite party/wife submitted that some of the golden ornaments, out of many seized, were given to wife/opposite party in a temporary custody, upon execution of a bond imposing stringent conditions with an aim to keep those items intact till the decision of the case.
When temporary custody was given in respect of some of the seized golden ornaments, there left nothing to be interfered with, contended by the learned advocate for the opposite party. Learned advocate, Ms. Sujata Das, representing the State submitted that learned Magistrate duly granted opportunity to revisionist/husband in establishing his rival claim over the seized items. Upon consideration of such fact, the revisional court felt it prudent not to interfere with the findings reached by the learned Magistrate, while affirming the order of Learned Magistrate. Admittedly, in course of inventory, 14 golden ornaments were found deposited in the locker, maintained by the bank concerned. The locker was opened as per order of the learned Magistrate. As 5 per identification of the wife/opposite party, 7 items, out of 14 items, were given in the temporary custody of the wife/opposite party, imposing conditions, which were basically intended to keep the seized items intact till the decision is reached by the learned court below. There was also conditions that the value of the golden ornaments could not be depreciated by adopting any means, so long the matter is pending before the court. Direction was also there to produce those items before the Court as and when the same would be needed.
Upon perusal of the documents, it appears that most of the items given to wife in a temporary custody were normally usable by a woman. The order directing return was a temporary measure allowing custody to wife during interregnum period upon execution of her bond cannot be quoted with a proposition of unfettered return providing absolute ownership, so that the petitioner can deal with the items given in her temporary custody in a manner best suited to her upon exercising her own discretion. It is, however, subject to final decision of this case. When admittedly, there is a claim and counter-claim, over the seized items between the parties, it cannot be decided without entering into the evidence, to be adduced by the parties to this case. The claim of respective ownership, as revealed from the rival submissions, may be best established during the course of trial 6 with collection of evidence. The case is now at the investigation stage. The outcome of the investigation has not yet reached to court. The claim of being seriously prejudiced for causing return of some of the golden ornaments to wife/opposite party during the interregnum period giving a temporary custody therefor with some stringent conditions, can hardly be believed in the given circumstances of the case and cannot be construed to be serious in nature.
The revisionist/husband/petitioner is not at all remediless at the moment, if the revisional application is disposed of giving an opportunity to raise the points, now raises, at the time of trial upon production of valid documents in support of ownership over seized items.
The Court is of the view, that if such liberty is given to revisionist/husband that would, however, subserve the purpose of justice.
The impugned order dated 04.12.2018 passed by Learned Additional District and Sessions Judge, 3rd Fast Track Court, Alipore, in Criminal Motion No.379 of 2018, dismissing the criminal revision and thereby affirming the order dated 05.06.2018, passed by Learned Chief Judicial Magistrate, Alipore, in connection with Bhowanipur Police Station Case No.450 of 2017 7 under Sections 498A/406 I.P.C, arising out of C.G.R. No.4219 of 2017, does not call for any interference.
The revisional application thus fails being without any merits. Liberty is, however, given to revisionist/husband to raise the points, now raises, at the time of conducting trial with production of necessary valid documents in support of ownership so as to establish ownership effectually over the seized items, and if any, such point is so raised, that will be duly addressed to by the learned trial Magistrate and dispose of the points in accordance with the law, giving sufficient opportunity to either of the parties to this case.
With this direction/observation, this revisional application stands disposed of.
(Subhasis Dasgupta, J.)