Shivam Singh @ Sanju Kinnar vs State Of U.P. Thru. Secy. Home Lko. on 21 January, 2025

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Allahabad High Court

Shivam Singh @ Sanju Kinnar vs State Of U.P. Thru. Secy. Home Lko. on 21 January, 2025

By means of the present application, the applicant namely Shivam Singh @ Sanju Kinnar has assailed the order dated 23.04.2024 passed by the Session Judge, Lakhimpur Kheri (in short "Revisional Court") in Criminal Revision No. 39 of 2024, arising out of Case Crime No. 186 of 2023 under Section 395, 412, 120(B) IPC, P.S.-Paduwa, District-Kheri as also the order dated 12.03.2024 passed by the Additional Chief Judicial Magistrate, Court No.4, Lakhimpur Kheri (in short "Magistrate") in Case Crime No. 186 of 2023, P.S.-Padhua, District-Kheri.

Vide order dated 12.03.2024, impugned herein, the Magistrate rejected the application preferred by the applicant under Section 451 CrPC. The relevant portion of the order dated 12.03.2024 reads as under:-

"6. पत्रावली में उपलब्ध समस्त प्रपत्रों के अवलोकन से विदित होता है कि मु०अ०सं०-186/23, धारा- 395, 412, 120 (B) भा०द०सं० के प्रकरण में प्रश्नगत बरामद माल आभूषण (सफेद एवं पीली धातुओ) थाना पढुआ, जिला-खीरी में दाखिल है। किंतु प्रार्थिनी संजू किन्नर की ओर से रिलीज प्रार्थना पत्र में वर्णित आभूषण के बावत स्वामित्व संबंधी कोई प्रपत्र आज सुनवाई की तिथि तक प्रस्तुत नहीं किये गये है। जिस कारण मामले में प्रार्थिनी की ओर से उपरोक्त बरामदशुदा आभूषण (सफेद एवं पीली धातुओं) प्रार्थिनी के पक्ष में रिलीज किये जाने हेतु न्यायालय के समक्ष कोई पुष्टिकारक अभिलेखीय साक्ष्य/ प्रपत्र को प्रस्तुत नहीं किया गया है। जिससे की उक्त बरामदशुदा आभूषण (सफेद एवं पीली धातुओं) की वास्तविक स्वामिनी प्रार्थिनी प्रतीत होती हो। चूकि प्रार्थना पत्र में बरामदशुदा संपति माल मुकदमाती है, जिसका विरोध अभियोजन द्वारा भी किया गया है।

7. ऐसी स्थिति में पत्रावली में उपलब्ध मामले के समस्त तथ्यों एवं परिस्थितियों को दृष्टिगत रखते हुए प्रार्थिनी की ओर से प्रस्तुत रिलीज प्रार्थना पत्र निरस्त किये जाने योग्य है।

आदेश उपरोक्त मामले में थाने में निरूद्ध उपरोक्त वर्णित बरामदशुदा माल आभूषण एवं कथित रूपये के संबंध में प्रार्थिनी संजू किन्नर द्वारा प्रस्तुत रिलीज प्रार्थना पत्र निरस्त किया जाता है। पत्रावली नियमानुसार दाखिल दफ्तर हो।"

Vide order dated 23.04.2024 the Revisional Court, affirmed the order dated 12.03.2024, passed by the Magistrate. The relevant portion of the order dated 23.04.2024 reads as under:-

"6- यद्यपि कि प्रश्नगत वस्तुओ (आभूषण) का कोई अन्य दावेदार नहीं है, परन्तु प्रश्नगत वस्तुओं के स्वामित्व संबंधी कोई साक्ष्य प्रस्तुत नहीं किया गया है, जिससे कि उक्त बरामदशुदा आभूषण (सफेद एवं पीला धातुओं) की वास्तविक स्वामिनी पुनरीक्षणकर्ती/वादिनी मुकदमा प्रतीत होती हो। ऐसी स्थिति में, विद्वान मजिस्ट्रेट द्वारा पारित प्रश्नगत आदेश में कोई तात्विक अनियमितता नहीं है और न ही विद्वान मजिस्ट्रेट ने आलोच्य आदेश पारित करने में अपनी आधिकारिता का प्रयोग करने में कोई विफलता कारित की है और न ही प्रश्नगत आदेश पारित करने में कोई अतिलंघन किया है। अतः पुनरीक्षण बलहीन होने के कारण खारिज किये जाने योग्य है।

आदेश पुनरीक्षणकर्ती/वादिनी मुकदमा द्वारा प्रस्तुत फौजदारी पुनरीक्षण निरस्त की जाती है।"

Brief facts, as indicated, are to the effect that applicant lodged an FIR No. 0186 of 2023 against some unknown persons on 15.11.2023 making allegations therein to attract the offence under Section 457, 380 IPC. As per this FIR, in the night of 14/15.11.2023 some unknown persons entered into the house of informant and committed theft.

After lodging of FIR, the Investigating Officer (in short "I.O.") started investigation and during investigation, he apprehended Altaf @ Laddun, Rajmal, Vijay Shankar Tiwari, Imran Kaliya, Vishal and Geeta Kinnar and based upon the evidence collected during investigation as also the recovery of various articles/ jewellery including belonging to the applicant, filed the Charge sheet No. 01 dated 28.03.2024 under Section 395, 412, 120-B IPC against the said accused before the competent court of jurisdiction.

The articles/jewellery stolen by the accused after recovery were kept in the Police Malkhana/Store House of the concerned Police Station and upon receiving information regarding recovery of said articles/jewellery from the premise of the applicant, an application under Section 451 CrPC was preferred to release the articles/jewellery.

The trial Court rejected the application vide order dated 12.03.2024 on the main ground to the effect that the applicant failed to produce receipt/evidence pertaining to the articles/jewellery recovered from the accused.

In the aforesaid background of the case, present application has been filed.

Learned counsel for the applicant says that reasoning given by the trial Court for the purposes of rejecting the application under Section 451 CrPC is completely unsustainable being erroneous and contrary to the settled principle of law and as such, indulgence of this Court is required.

He also stated that Revisional Court has also failed to take note of relevant facts of the case as also the spirit of Section 451 CrPC in the light of settled proposition of law and being so, the order of the Revisional Court dated 23.04.2024 is also liable to be interfered with by this Court.

It is also stated that both the Courts also failed to consider the fact that police connected the articles/jewellery recovered from the accused persons to the FIR/Case Crime No. 0186 of 2023 lodged by the applicant and in this case, the application under Section 451 CrPC was preferred by the applicant.

Considered the aforesaid and perused the record.

The law on the subject has already been settled by the Hon'ble Apex Court, which can be deduced from the relevant observation of the made in the judgment passed in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, (2002) 10 SCC 283. The relevant portion of the judgment, referred, is extracted hereinunder:-

"4. Learned counsel further referred to the relevant Sections 451 and 457 of the Code of Criminal Procedure, which read thus:

"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--

(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 claim within six months from the date of such proclamation."

5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as:

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;

(3) if the property is subject to speedy and natural decay, to dispose of the same.

6. It is submitted that despite wide powers, proper orders are not passed by the courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the manual also, various circulars are issued for maintenance of proper registers for keeping the mudammal articles in safe custody.

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 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.

8. The question of proper custody of the seized article is raised in a number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore [(1977) 4 SCC 358 : 1977 SCC (Cri) 598] this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: (SCC p. 361, para 4) "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of by the court and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

(emphasis supplied)

9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

10. To avoid such a situation, in our view, powers under Section 451 CrPC should be exercised promptly and at the earliest.

Valuable articles and currency notes

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 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.

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 panchnama 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 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 purposes of investigation and identification. For currency notes, similar procedure can be followed.

Vehicles

15. Learned Senior Counsel Mr Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to their owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

19. For articles such as seized liquor also, prompt action should be taken in disposing of it after preparing necessary panchnama. If sample is required to be taken, sample may be kept properly after sending it to the Chemical Analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the narcotic drugs also, for its identification, procedure under Section 451 CrPC should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

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 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."

Upon due consideration of aforesaid as also the reasoning given by the Magistrate in the order dated 12.03.2024, whereby the application preferred by the applicant under Section 451 CrPC has been rejected as also the reasoning given by the Revisional Court in the order dated 23.04.2024, whereby the Revisional Court affirmed the order dated 12.03.2024, this Court is of the view that interference of this Court is required in the matter.

Accordingly, the application is allowed.

The orders impugned dated 12.03.2024 and 23.04.2024 passed by the Magistrate and Revisional Court, respectively, are hereby set aside. The matter is remanded back to the Magistrate to pass appropriate order(s) in accordance with law after taking note of observations made in the judgment, referred above, within a period of one month from the date of production of certified copy of this Court.

Order Date :- 21.01.2025/Arun/-

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