Karnataka High Court
Sri.Santosh S/O Shambu Pavate vs The State Of Karnataka on 13 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COU RT OF KARNATAKA
DHARWAD B ENCH
DAT ED THIS THE 13 T H DAY OF OCT OBER, 2020
B EFORE
THE HON'B LE MR. JU ST ICE PRADEEP SINGH YERU R
CRIMINAL REVISION PET ITION NO.1 00164/ 2020
RAMESH
MATHAPATI
Digitally
signed by
RAMESH
MATHAPATI
Date:
2020.10.22
10:45:23
+0530
BET WEEN:
SANTHOSH S/O SHAMBU PAVATE,
AGE: 28 YEARS, OCC:PRIVATE SERVICE,
R/O: PL OT NO.1, 1 S T MAIN, 2 N D CROSS,
HANAMAN NAGAR, B ELAGAVI- 590001.
... PET ITIONER
(B Y SRI RAJENDR A R.PAT IL, ADVO CAT E FOR SR I
SHRINAND A. PACHHAPU RE)
AND:
THE ST AT E OF KARNATAKA
THROUGH KHADE B AZ AR POLICE
NOW REPRES ENT ED BY
STATE PU B LIC PROSECU TOR,
HIGH COU RT OF KARNATAKA,
B ENCH AT DHARWAD-58 0 011.
... RESPONDENT
(B Y SHRI RAMESH CHIGAR I, HCGP.)
***
THIS CRIMINA L REVIS ION PET IT ION IS F ILED
UNDER SECTION 397 READ WITH SECTION 401 O F
CR.P.C., PRAYING TO QU ASH THE ORDER DT .
13.12.2019 IN CRL. MISC. NO.2610/2019 PASSED B Y
THE PRL. SESS IONS JUDGE, B ELAGAVI, REGIST ERED
FOR THE OFFENCE PU NIS HAB LE UNDER SECT ION 406 ,
408 AND 420 OF IPC AND CONSEU QNET LY ALOW TH E
APPLICAT ION U NDER SECTION 451 OF CR.P.C., ETC.,
THIS PET ITION COMING ON FOR AD MISSION TH IS
DAY, THE COURT MADE THE FOLLO WING:
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ORDER
Though this petition is listed for ad mission, with the consent of both p arties, matter is taken up for final disposal.
2. This revision petition has b een preferred challenging the correctness, legality and prop riety of the order dated 13.12.2019 in Crl. Misc . No.2610/ 2019 on the file t he Prl. Sessions Judge , Belagavi, registered for the offences punishable under Sections 406, 408 and 4 20 of IPC.
3. Heard Sri Rajendra R Patil, learned counsel for petitioner and Sri Ramesh Chig ari, learned HCGP respondent for State.
4. Brief facts leading to filing of this revision petition are as follows:
It is the case of the petitioner that he is no where connected to the crime registered by the respondent - Police in Cr. No.185/2017. The alleg ations mad e in the said case is that the accused persons in the said Cr. No.185/2017 have collected deposits from pub lic to the tune of 3 Rs.232.09 Crores and have failed to refund the same with interest and thereby have committed criminal b reach of trust. Further the accused persons have entered in to a lease agreement with the petitioner in ord er to conduct their business in the p remises belong ing to the petitioner. The respondent Police have seized the materials related to the offences alleged from the premises belonging to the petitioner.
5. It is the case of the petitioner that he had entered into a lease ag reement with the Kranthiveera Sangolli Rayanna Urban Co-Operative Society Limited , Belag avi represented by its founder Chairman Sri Anand B.Appugol, having its registered Office at Risald ar Galli, Corporation Road , Belg aum, who is accused No.1 in Cr. No.185/2017. The lease agreement came to be executed on 2 n d June 2016 with effect from 1 s t March 2016 for a p eriod of 11 months and the same to be continued by escalation at 10% of the existing lease amount. It is the case of the petitioner that this premise was used by the 4 accused No.1 to run the b usiness of the Co- Operative Society and was used as for commercial purpose.
6. This b eing the facts of the case, the respondent - Police have reg istered a case in Cr. No.185/2017 ag ainst accused No.1 - Anand B Appugol and 15 others for the afore stated offences. It is the case of the p etitioner that he is absolute owner of immovab le property bearing CTS No.4963 consisting of ground and first floor and RS No.183 of Hanaman Nag ar, Kangrali, K.H. Belag avi District. He has prod uced relevant p roperty register extract, tax demand notice, tax p aid receipt, e-filing, form No.1 - Assessed (Residential) list d ated 14.04.2019, self assessment challan d ated 14.04.2019, to show that he is the owner of the aforesaid property. The petitioner has also p roduced copy of the lease agreement d ated 02.06.2016.
7. In view of the reg istration of Cr. No.185/2017 against the accused persons, who are involved in the criminal offence, the respond ent - 5 Police conducted an enq uiry and after investig ation sealed and seized the p roperty belonging to the petitioner as the same was used and involved for storing the materials and for conducting criminal activities. It is the case of the petitioner that the respondent - Police have seized the records of the said Society and the premises, belonging to the petitioner and has kep t the p remises under lock and key, thereby depriving the petitioner to use and enjoy his own prop erty. It is the case of the petitioner that the prop erty has remained in the custody of the respond ent - Police due to the registration of the Crime ag ainst lessee.
8. This being the facts and circumstance of the case, the p etitioner filed an application und er Sections 451 and 457 of Cr.P.C. seeking release of immovable p roperty mentioned above. The petitioner has stated before the trial Court that his property came to be seized in Cr. No.185/2017, vide PF No.45/2018 by Khad e Bazar Police for the offences punishable und er Sections 406, 408 and 420 IPC. He further stated that he will abid e b y 6 the terms and conditions imposed by the trial Court and at any time he would be read y to co-operate with the investigation to the full extent and he would not hamper the investig ation carried on by the respond ent - Police.
9. Application filed by the petitioner came to be objected by the learned Public Prosecutor and after hearing the arg uments on both the p arties, the learned trial Judge p assed an order rejecting the application of the petitioner under Sections 451 and 457 of Cr.P.C. Though the trial Court has held that Police Officers have no power to seize the immovable p roperty in exercise of power under Section 102 Cr.P.C., but has come to a conclusion that the trial Court has no power to exercise inherent power und er the Code and such power vests with only High Court und er Section 482 of Cr.P.C.. On these grounds the trial Court rejected the application filed by the petitioner for release of his immovab le p roperty.
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10. Now the only point that arises for consid eration before this Court is 'whether the order p assed by the learned Princip al Sessions Judge, Belag avi, is arb itrary, perverse and illeg al, causing mis-carriag e of justice affecting the rig hts of the petitioner herein?'
11. The learned counsel for petitioner vehemently contends that the order p assed by the learned Sessions Judge is arb itrary and illeg al and it is p er se, p erverse and requires interference b y this Court. The learned counsel for petitioner further contended that the learned Sessions Judge has misdirected himself to consid er the application und er Sections 451 and 457 Cr.P.C. It is further contend ed that the learned trial Judge has committed a g rave error in not appreciating the fact that the p etitioner is not involved in the offence and in the crime registered by the respondent - Police for the offences punishable und er Section 406, 408 and 420 of Cr.P.C.
12. The question that falls for consideration before this Court is with reg ard to the property that has 8 been seized and put under lock and key by the respondent - Police in Cr. No.185/2017 and in PF No.45/2018, would directly affect the rights of the petitioner to enjoy his p roperty. Further, whether the trial Court is right in rejecting the app lication filed by the p etitioner for release of immovab le property seized by the respond ent - Police in Cr. No.185/2017.
13. It is an admitted fact that the p etitioner is not involved in Cr. No.185/2017 for the offences punishab le under Section 406, 408 and 420 of IPC. Further, it is an admitted fact that the prop erty involved in the crime is a lease hold prop erty, which was used by accused for running their business, which belongs to the petitioner herein.
14. It is not in d ispute that the petitioner herein is the absolute owner of the property. It is not in dispute that the documents produced by the petitioner to p rove his ownership is not questioned and disputed. Thoug h the trial Court has held that petitioner is the owner of aforesaid property, but has refused to entertain the application filed by the 9 petitioner under Sections 451 and 457 Cr.P.C., only on the ground that the trial Court does not have inherent power and the same vests with the High Court and hence the trial Court cannot exercise power to release the p roperty in favour of the petitioner.
15. It is essential to extract Section 451 and 457 of Cr.P.C., which reads as under:
451. Order for custody and disposal of property pending trial in certain cases.-
When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation.-For the purposes of this section, "property">includes -
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(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.
457.Procedure by Police upon seizure of property.-
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his 11 claim within six months from the date of such proclamation.
16. On going throug h the said provisions, it is seen that the definition of p roperty includ es any property, which is involved, in which an offence app ears to have been committed or which appears to have been used for the commission of any offence and on going through Section 457 Cr.P.C., it is seen that whenever the p rop erty is seized by any police officer is reported to a Magistrate, the Magistrate may make such order as he thinks fit resp ecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof.
17. Therefore, these provisions are ap tly very clear and the Leg islative intent is clear that any property which is involved in the offence are seized by the police in the course of investig ation, a p erson could make an application for release and delivery of such property on production of the relevant documents proving his ownership over the said prop erty.
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18. In the case on hand the p etitioner has filed an application under Sections 451 and 457 of Cr.P.C. and prod uced all relevant documents with regard to his ownership and also lease ag reement entered between him and accused No.1 to show that he is being the ab solute owner of the p roperty and the lease ag reement in favour of the accused No.1, was to be acted only as lease ag reement and is not p artner and member of the said society. This fact is not in dispute and is also admitted by the respondent, so also the trial Court accepted this matter of fact.
19. Under the said circumstance when there is no involvement of the petitioner in the aforesaid Cr. No.185/1027 and when the name of the petitioner has not been arraigned in the FIR or in the charge sheet filed by the Police, it cannot be said that the property seized cannot be release in favour of the petitioner, who is the absolute owner of property. Even according to the respond ent the property in question is not primarily the subject 13 matter of the crime. It is needless to mention here that even under Article 300-A of the Constitution no person shall be d eprived of enjoyment of his property and in the case on hand, the respond ent state ad mits the petitioner to be the owner of property. Therefore, in my considered opinion the learned Sessions Judge has committed an illeg ality in not allowing the application filed by the petitioner und er Sections 451 and 457 of Cr.P.C. and therefore, it calls for interference by this Court.
20. The learned HCGP submits that in pursuance to the investig ation b efore the respondent - Police a Competent Authority has been appointed und er the KPID Act, 2004, and in accordance with said Act, the Competent Authority, who is responsible for investigation, shall take possession and custody of the entire material, which has been seized und er Cr. No.185/2017 and handover vacant, p eaceful possession of the immovable prop erty to the p etitioner in accord ance with law within the time frame fixed by this Court. 14
21. Accordingly, I proceed to pass the following order:
ORDER (1) The revision petition is allowed .;
(2) The order d ated 13.12. 2019 pass ed in Crl.
Misc. No.2610/2019 on t he file the Prl. Sessions J udge, B elagav i, registered for the offences punishable unde r Sections 406, 408 and 420 of IPC, in respect of Cr. No.185/2017, is hereby set aside.
(3) The Competent Authority of the respondent -
Police shall fort hwit h release and deliver the possession and custody to the pe titioner his immovable prop erty b earing CTS No.4963 consisting of g round and first floor and RS No.183 of Hanaman Nagar, Kangrali, K.H. Belag avi District, within an outer limit of three months from tod ay.;
(4) It is needless to mention that the petitioner shall co-op erate with the respondent - 15 Police in case of requirement of any further investig ation.
(5) The p etitioner is directed not to meddle or interfere with the investig ation being carried out by the Comp etent Authority or respondent - Police.
SD/-
JUDGE VK