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Sri. Sagir Khan vs State Of Karnataka on 20 February, 2021

  IN THE COURT OF THE IV ADDL. CITY CIVIL AND SESSIONS
           JUDGE MAYOHALL UNIT, BENGALURU
                        (CCH­21)

          Dated: This the 20th day of February 2021

                             PRESENT:
                  SRI. Shanthanna Alva M.,
        IV Addl. City Civil and Sessions Judge, Bengaluru

                CRL.APPEAL. NO.25185/2020

APPELLANTS:          Sri. Sagir Khan,
                     S/o Ahamed Khan,
                     aged about 51 years,
                     R/at. No.8/2, 1st cross,
                     BTS Main Road,
                     Chinnaiahnapalya Adugodi,
                     Bengaluru­560 030.

       (PLEADER BY: Mr. Rahamathulla Shariff,Advocate)

                             .. Vs ..

RESPONDENT:          State of Karnataka,
                     Rep. By Wilson Garden Police Station,
                     Bengaluru City,
                     Rep. By A.P.P.
                                 2


                                                 Crl.A.25185/2020

                          JUDGMENT

The Appellant who has been arrayed as accused No.2 in C.C.No.1500/2013 registered for the offence punishable u/s.78(3) of Karnataka Police Act, being aggrieved by the order passed by Ld. Magistrate u/s.452 of Cr.P.C. preferred the appeal under section 454 of Cr.P.C.

2. The parties are referred as to their rankings before the trial Court.

3. The Accused No.2 was acquitted from the charge of offence punishable u/s.72(3) of Karnataka Police Act vide judgment dated: 24.05.2019. The seized amount of Rs.5,47,635/­ and the mobile phone identified as M.O.1 to 3 were ordered to be confiscated to the State. After that accused No.2 filed the application u/s 452 of Cr.P.C for release of amount of Rs.5,39,000/­ out of M.O.1. In the application accused No.2 has contended that he had sold the property and kept the amount in 3 Crl.A.25185/2020 his home for buying another property with the help of his brother. The appellant went to Ajmeer and after returning to Bengaluru, he was taking the money to his brother's house. At that time, the police came and falsely implicated accused No.2 in the case and seized the amount. The prosecution failed to prove the alleged offence against accused No.2, hence the amount cannot be confiscated.

4. The prosecution opposed the application contending that the amount is already confiscated to the State. Accused No.2 not produced the evidence to substantiate that the amount belonging to him.

5. The trial court after hearing, pleased to pass the impugned order by rejecting the application filed by accused No.2. Aggrieved by that order, the appeal is preferred on the ground that:

Accused No.2 while cross­examining the I.O clearly established that sum of Rs.5,39,000/­ exclusively 4 Crl.A.25185/2020 belonging to him. Inspite of that the amount being confiscated to the State. It is established principle of law that after disposal of the case, the property should be returned to the person from whose custody it was seized. The Panchanama discloses that cash was seized from the Auto­Rikshaw and not from the custody of five accused. Thus, the cash of Rs.5,39,000/­ should have been released to the custody of the accused No.2. In this case the link between th cash and offence is not established, hence the accused No.2 is acquitted.

6. The appeal was notified to th Public Prosecutor. The Public Prosecutor filed written arguments supporting the order of trial court. The trial court record was secured.

7. Heard the Ld counsel for the appellant and the respondent. Perused the evidence available in the trial court records and the impugned order.

Crl.A.25185/2020

8. The points that arises for my consideration are :­

1. Whether the order of confiscation of Rs.5,39,000/­ by the trial court is justified ?

2. What order?

9. The findings on the above said points are :

            Point No.1 :    In the Negative;

            Point No.2 :   As per final order;
                           for the following:­

                             REASONS.


     10. Point No.1:       The respondent laid charge sheet against

the accused No.2 and 5 other accused persons for the offence punishable under section 78(3) of the Karnataka Police Act. All the accused except accused No.2 pleaded guilty and got convicted and accused No2 faced the trial. The Trial Court by the judgment dated: 24.05.2019 acquitted the accused No.2 on the ground that prosecution failed to prove the charges leveled against him. While 6 Crl.A.25185/2020 acquitting the accused No.2, the amount of Rs.5,47,685/­ seized at the time of alleged raid was ordered for consfication. Thereafter, accused No.2 filed the application under section 452 of Cr.P.C by claiming that out of Rs.5,47,645/­, Rs. 5,39,000/­ belongs to him. The trial court rejected the application .

11. Ld counsel for the appellant reiterated the grounds urged in the memorandum of appeal. In support of the arguments, relied upon judgment of Hon'ble High Court rendered in the case of Nanda Kishore Vs State of Karnataka reported in 1979 Crl.L.J. 733 wherein it is held that, As a normal rule, when an accused is acquitted of a criminal charge, and he claims that the property involved in the case belongs to him, or that he is entitled to the possession of the property, the proper order to be passed would be to return the property to the accused from whose possession it was seized. In the case of Mahadeb Mahakar Vs State of Orissa [(Laws (Ori)] 1989 7 19 wherein it is held that, normal rule is that the 7 Crl.A.25185/2020 time of conclusion of trial, when the accused is acquitted the court should normally restore the property, which is produced before it or which is its custody to the person from whose custody it was taken. In the case of State of Manipur Vs Khummallabam Kula Chandra Singh( Laws (Ganj) 1993 3 11 wherein it is held that only conclusion of trial order under section 452 of Cr.P.C needs to be passed.

12. Ld. Public Prosecutor argued that accused No.2 was acquitted for the reason of lack of evidence. There is no finding that accused No.2 not committed the alleged offence. The accused No.2 not produced any evidence to the effect that the seized amounts belonging to him.

13. As per Section 452 of Cr.P.C at the conclusion of enquiry or trial, the criminal court shall pass the order in respect of property produced before it. In the rulings relied by the Ld Counsel of the appellant it is stated that in the case of acquittal, 8 Crl.A.25185/2020 generally the property is to be released to the accused from whose possession it was seized. However, it is not the general principle. In a case whee several accused are involved and one of the accused pleaded guilty and there is no evidence as to whom the property belongs, then even if some of the accused acquitted, the property cannot be released. In other words, the accused who seeks custody of seized property has to establish before the court that property actually belongs to him.

14. In the case on hand, accused No.2 except putting suggestions to the I.O., not produced any evidence to the effect that Rs. 5,39,000/­ belongs to him. In the Mahazar, it is stated that amount of Rs.5,39,000/­ was found in the Autorikshaw bearing No. KA­05. 559 in a plastic cover. In the application filed under section 452 of Cr.P.C the accused No.2 stated where he got the amount. In the judgment, reason for confiscating the amount is not stated. Our Hon'ble High Court in the case of Narpath Raj 9 Crl.A.25185/2020 Bansali Vs The State of Karnataka in Crl.Appeal. No.1573/2005 interpreted section 451 to 459 of Cr.P.C. The sum and substance of the finding is that the language of each provision is explicit and deals with two situations. Section 451 deals with the situation conferring the power on the courts to pass the order regarding interim custody of the seized property produced during enquiry or trial. While section 452 of Cr.P.C deals that the order passed regarding disposal of trial on completion of the trial. Before passing the final order regarding disposal of the property, it was incumbent on the Ld. Trial Judge to have hold an enquiry as required u/s. 452 of Cr.P.C. following the procedure prescribed under section 457,458 and 459 of Cr.P.C as may be applicable. The decision of the Court about the guilty or otherwise of the accused has no bearing on the final order required to be passed u/s 452 of Cr.P.C. What is to be considered while passing final order regarding disposal of the property is, who is legitimately entitled to possession or custody of the 10 Crl.A.25185/2020 property seized. The confiscation of the property to the state would arise only if the person in whose possession the property found is unable to show it was legally acquired by him. By holding so, the Hon'ble High Court set­aside the order of confiscation and remitted the matter to the trial court to consider the claim of accused therein as provided in Chapter XXXIV of Cr.P.C and pass the appropriate order as required under section 452 of Cr.P.C.

15. In the case on hand also, the trial court not assign the reasons for confiscating the seized amount to the State while passing the judgment. Later disposed of the application filed u/s. 452 of Cr.P.C without giving opportunity to the accused No.2 to establish his ownership over the amount claimed in the application. Thus, the impugned order of the trial court is not sustainable. Accordingly, this point is answered in the Negative.

16. Point No.2: In view of discussion made supra, it is held that the impugned order of confiscation of the amount claimed by 11 Crl.A.25185/2020 accused No.2 without holding enquiry and giving an opportunity is not sustainable. Thus, the appeal is to be allowed by directing the trial court to consider the application filed u/s. 452 of Cr.P.C afresh after giving opportunity to accused No.2 to produce the evidence to establish the claim and the opportunity to the prosecution to counter it. It made clear that the trial court pass the order uninfluenced by any of the observations made in the order. Accordingly, the Court proceeds to pass the following:

ORDER.

The Crl. Appeal filed by the appellant under section 454 of Cr.P.C is allowed.

The impugned order dated: 24.05.2019 is set­ aside.

The matter is remanded back to the trial court to consider the application filed u/s.452 of Cr.P.C afresh after giving opportunity to the appellant to establish his ownership over the amount of Rs.5,39,000/­ by producing evidence and pass suitable order. 12

Crl.A.25185/2020 There is no orders as to costs.

The appellant shall appear before the Trial Court on 20.03.2021.

Office is to send back the trial Court records along with the copy of the Judgment. (Dictated to the Judgment­Writer, transcript thereof corrected and then pronounced by me in the open court this the 20th day of February 2021).

(SHANTHANNA ALVA M) IV Addl. City Civil & Sessions Judge, City Civil Court, Mayo Hall Unit, Bengaluru.

Crl.A.25185/2020 Judgment pronounced in the open Court (Vide Separate Judgment) ORDER The Crl. Appeal filed by the appellant under section 454 of Cr.P.C is allowed.

The impugned order dated: 24.05.2019 is set­aside. The matter is remanded back to the trial court to consider the application filed u/s.452 of Cr.P.C afresh after giving opportunity to the appellant to establish his ownership over the amount of Rs.5,39,000/­ by producing evidence and pass suitable order.

Crl.A.25185/2020 There is no orders as to costs.

The appellant shall appear before the Trial Court on 20.03.2021.

Office is to send back the trial Court records along with the copy of the Judgment.

IV Addl. City Civil & Sessions Judge, City Civil Court, Mayo Hall Unit, Bengaluru.