Gujarat High Court
Partners Of Patel Pravinbhai ... vs State Of Gujarat on 10 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/6923/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6923 of 2016
With
SPECIAL CRIMINAL APPLICATION NO. 6924 of 2016
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PARTNERS OF PATEL PRAVINBHAI ISHWARBHAI CO. BY PATEL HEMANTBHAI AMARATBHAI....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
JUGAL J DAVE, ADVOCATE for the Applicant(s) No. 1 MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 10/01/2017 ORAL COMMON ORDER 1 Since the issues raised in both the captioned applications are more or less the same, those were heard analogously and are being disposed of by this common order.
2 The Special Criminal Application No.6923 of 2016 is treated as the lead matter.
3 By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs:
"(9)(A) The Honourable Court may be pleased to issue a writ order or direction, quashing and setting aside the judgment and order passed by the learned District and Sessions Judge Visnagar in Criminal Revision Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Aug 12 05:14:35 IST 2017 R/SCR.A/6923/2016 ORDER Application 22/2016 on 30.07.2016 and further be quashed and setaside the order passed by the learned Judicial Magistrate First Class at Visnagar in Criminal Miscellaneous Application 155/2016 on 24.05.2016 annexed to this petition as Annexure "E".
(B) Pending, hearing and final disposal of this writ petition, the Honourable Court may be pleased to stay the judgment and order passed by the learned District and Sessions Judge Visnagar in Criminal Revision Application 22/2016 on 30.07.2016 and further be quashed and setaside the order passed by the learned Judicial Magistrate First Class at Visnagar in Criminal Miscellaneous Application on 24.05.2016 annexed to this petition as Annexure "E" and further be pleased to release or give custody of (1) Diamond Square packet on which Gems Diamond insurance 10m000 is written (2) One square Diamond Packet on which Natvarbhai Desai insurance 20,000/ Rs. is written (3) One sealed square cover which contains Gold Biscuit of 50 grams valued around 1,42,500/ (4) One sealed square covers containing 4 silver ornament or chain (Janjar) valued around 17,020 Rs. (5) 28,87,020 Rs. in total was theft from our employee which he got from our branch offices as part of day to day transaction detail of these cash is that Siddhpur office given 59,400/ Rs., 3,600/ Rs., 20,000/ Rs., and 1,00,000/ Rs., Deesa office sent 15,00,000/ Rs., 25,000/ Rs., 15,700/ Rs., Palanpur Branch Office sent 88,780/ Rs., 1,26,690/ Rs., and Patan Branch office sent 9,47,850/ Rs., so in total cash money was dacoit and theft from our employee from which in total 14,18,900/ Rs. was recovered in said investigation by investigating officers.
(C) Such other and further reliefs as and deemed fit in the facts and circumstances of this case may kindly be granted."
4 The applicant is one of the partners of a partnership firm running in the name of 'Patel Pravinbhai Ishwarbhai Co. Angadia Pedhi'. The partnership firm is engaged in the business of courier service. It appears that an employee of the partnership firm along with one other person serving in a different Angadiya firm were travelling with certain articles, like Gold bars, Diamonds and currency notes. The articles were handed over to the company for being delivered at a particular place. Dacoity was committed and the two employees were robbed of all the articles. A First Information Report came to be registered in this regard at the Visnagar Taluka Police Station, District: Mehsana for the offence Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Aug 12 05:14:35 IST 2017 R/SCR.A/6923/2016 ORDER punishable under Sections 395, 365 and 171 of the Indian Penal Code.
5 In the course of the investigation, the accused persons were arrested. The articles, which were robbed, came to be recovered from the accused persons. The articles were collected as a Muddamal.
6 The applicant herein, as one of the partners of the courier service agency, preferred an application under Section 451 of the Cr.P.C. for release of the Muddamal. The application was filed in the Court of the Additional Judicial Magistrate First Class, Visnagar. The said application came to be rejected vide order dated 24th May 2016. Being dissatisfied, the applicant preferred the Criminal Revision Application No.23 of 2016 in the Court of the 5th Additional Sessions Judge, Mehsana. The revision application was also ordered to be rejected vide order dated 30th July 2016.
7 Being dissatisfied, the applicant has come up with this application invoking the supervisory jurisdiction of this Court.
8 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the two Courts below committed any error in passing the impugned orders.
9 The muddamal is in the form of Gold bars, Diamonds and currency notes of the denomination of Rs.500/ and Rs.1,000/ respectively.
10 I take notice of the fact that the application under Section 451 of the Cr.P.C. came to be filed by the partnership firm through one of its partners. The partnership firm is engaged in the business of courier Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Aug 12 05:14:35 IST 2017 R/SCR.A/6923/2016 ORDER service. Its firm is not the owner of the Muddamal articles. In my view, the application should have been filed by the original owners of the articles since it is the owner of the articles who had handed over the same to the company engaged in courier service. I am told by the learned A.P.P., after taking instructions from the Investigating Officer that so far as the currency notes are concerned, the same has been deposited in the Bank in view of the instructions issued by the High Court on its administrative side in the wake of the demonetisation policy introduced by the Central Government. We are now left with other articles, like Gold bars and Diamonds. In my view, no error, not to speak of any error of law could be said to have been committed by the two Courts below in passing the impugned orders. However, I reserve the liberty for the original owners of the articles in question to prefer an appropriate application before the Court concerned under Section 451 of the Cr.P.C. If any such application is filed, the Court concerned shall look into the same expeditiously on its own merits in accordance with law.
11 At this stage, the learned counsel appearing for the applicant pointed out that since the original owners sustained a huge loss, the applicant firm made good the loss in terms of money by way of compensation. According to him, since compensation has already been paid to the owners equivalent to the value of the articles, the Muddamal could be now said to be owned by the applicant. This issue shall be considered by the trial Court at the end of the trial while passing an appropriate order of disposal of the Muddamal under the provisions of Criminal Procedure Code.
12 With the above, both the applications are disposed of.
Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Aug 12 05:14:35 IST 2017 R/SCR.A/6923/2016 ORDER (J.B.PARDIWALA, J.) chandresh Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Aug 12 05:14:35 IST 2017