Karnataka High Court
Manikandan Kuttath vs State Of Karnataka on 7 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2023:KHC:27737
CRL.P No. 5128 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5128 OF 2023
BETWEEN:
MANIKANDAN KUTTATH
S/O LATE. GOPAL NAYAR,
AGED ABOUT 39 YEARS,
R/AT. FLAT NO. 09, 3RD FLOOR,
GURUDEV LAND MARK, SHIRUR PARK,
VIDHYANAGAR, HUBBALLI -580031.
... PETITIONER
(BY SRI. SANDESH CHOUTA, SR. COUNSEL REP.
SRI. SUNIL KUMAR S., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY SUBRAMANYA NAGAR P.S.,
R/BY SPP, HIGH COURT BUILDING,
BENGALURU -560 001.
Digitally signed
by PADMAVATHI 2. REVATHI DAYANAND
BK
W/O G. DAYANAND,
Location: HIGH AGED ABOUT 36 YEARS,
COURT OF
KARNATAKA R/AT NO.34, RAILWAY STATION,
RAILWLAY PARALLEL ROAD,
YESHWANTHPURA, BENGALURU-560022.
... RESPONDENTS
(BY SRI. REUBEN JACAB, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
ORDER DATED 12.06.2023 PASSED BY THE HON'BLE 39TH A.C.M.M
COURT AT BENGALURU IN C.C.NO.4061/2023 AND CONSEQUENTLY
ALLOW THE APPLICATION FILED BY THE PETITIONER / APPLICANT
(VICTIM) UNDER SEC.451 R/W 457 OF CR.P.C.
-2-
NC: 2023:KHC:27737
CRL.P No. 5128 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"Wherefore the petitioner most humbly prays that this Hon'ble Court may be pleased set aside the order dtd 12.06.2023 passed by the Hon'ble 39th ACMM Court at Bengaluru in C.C. No.4061/2023 and consequently allow the application filed by the petitioner / applicant (Victim) under Section 451 read with Section 457 of Cr.P.C. in the ends of justice."
2. Heard the learned Senior counsel Sri.Sandesh Chouta appearing for the petitioner.
3. The petitioner claims to be a victim of an act of the accused in C.C. No.4061/2023. A complaint comes to be registered on 07.02.2022 alleging offences that have taken place between 25.03.2021 to 07.02.2022 for offences punishable under Section 420 read with Section 34 of the IPC. The issue in the lis does not concern the merit of the crime. In the proceeding, the petitioner files -3- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 an application under Section 451 read with Section 457 of Cr.P.C., seeking release of the gold that was subject matter of P.F. Nos.15, 16 and 18 of 2022. The concerned Court rejects the application. The rejection of the application is what drives the petitioner to this Court in the subject petition.
4. The learned Senior counsel taking this Court to the documents appended to the petition would seek to demonstrate that the wife of the accused No.1 has purchased the gold out of the money that was belonging to the petitioner - victim and pledged the same in the bank. This is the case of the prosecution as well. In that light, an application was filed for securing the gold that was purchased out of the money that was the subject matter of the crime. It was the case of the prosecution itself that it belonged to the petitioner, the concerned Court ought to have considered the application favourably. The learned Senior counsel further takes this Court through the order passed in Criminal Petition -4- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 No.6233/2022 disposed of on 04.08.2022 which was concerning the very same crime but a different P.F. which was for release of cash. This Court after noticing the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283 has held as follows:
7. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute and therefore are not required to be reiterated. The application is filed by the petitioner for release of Rs.7.00 lakhs on the reason so stated in the application ought to have been entertained by the learned Magistrate as the Apex Court considering the very provision of law in the case of SUNDERBHAI AMBALAL DESAI (supra), holds as follows:
"7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely:
1. owner of the article would not suffer -5- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 because of its remaining unused or by its misappropriation;
2. court or the police would not be required to keep the article in safe custody;
3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
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 years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest.
12. For this purpose, if material on -6- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:
(1) preparing detailed proper panchnama 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 CrPC. 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 CrPC to impose any other appropriate condition.
21. However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that -7- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
(emphasis supplied) In the light of the judgment of the Apex Court in the case of currency notes that are seized, the maximum period that it could be held is 15 days or one month and later, it should be released and interim custody should be handed over to the victim/complainant.
9. If the order passed by the learned Magistrate is considered on the bedrock of principles laid down by the Apex Court in the aforesaid judgment, it would on the face of it, run foul, as the Court directs that till the investigation is complete and the charge sheet is laid, the amount cannot be released. Though the concerned Court directs even after lapse of four months, the Investigating Officer has not filed a final report and a direction is issued to file a final report as soon as possible would not hold this Court to pass the order, which is in tune with the -8- NC: 2023:KHC:27737 CRL.P No. 5128 of 2023 judgment of the Apex Court in the case of SUNDERBHAI AMBALAL DESAI (supra).
5. He would seek for the same relief that is granted to the petitioner in the aforesaid order.
6. The learned HCGP would contend that the accused will have to be heard in the matter as the wife of the accused No.1 has purchased the gold, he may have a separate explanation to render. The submission is unacceptable.
7. The Apex Court in the case of Sunderbhai Ambalal has clearly held that, be it cash or gold that is seized cannot remain in the custody of the Police beyond the period of 15 days, unless the situation otherwise warrants. The situation is not warranting otherwise, in the case at hand as the only defence is that the wife has purchased gold out of the money belonging to the petitioner and had pledged the same in the bank. The petition deserves to succeed on the very same reasons rendered in Crl. P. No.6233/2022 supra. -9-
NC: 2023:KHC:27737 CRL.P No. 5128 of 2023
8. For the aforesaid reasons, the following:
ORDER
(i) Petition is allowed.
(ii) Interim custody of P.F. Nos.15, 16 and 18 of 2022 is directed to be handed over to the petitioner, subject to the following conditions:
1) The prosecution shall prepare
detailed and proper panchanama
of such articles;
2) Take photographs of such
articles, and a bond that such
articles, would be produced, if
required at the time of trial.
3) Proper and adequate security
shall be taken by the
Investigating Officer.
Sd/-
JUDGE
Rsh/Ct:Bck
List No.: 19 Sl No.: 1