Karnataka High Court
Laxman S/O Khodepa Magadur, vs The State Of Karnataka, By Cpi Hangal on 3 September, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 03 R D DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRIMINAL APPEAL NO.2717/2012
BETWEEN:
LAXMAN S/O KHODEPA MAGADUR,
AGE : MAJOR, OCC: SERVICE,
R/O. HAVERI, TQ & DIST HAVERI.
...APPELLANT
(By Sri. M H PATIL ADV.)
AND:
THE STATE OF KARNATAKA,
BY CPI HANGAL POLICE.
REP BY ADDL.SPP
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD
... RESPONDENT
(By Sri.P.H.GOTKHINDI, AGA)
THIS CRIMINAL APPEAL IS FILED U/S. 454 OF CR.P.C,
1973 SEEKING TO SET ASIDE THE ORDER OF
CONFISCATION OF THE MO-1 I.E., LAPTOP TO THE STATE
AND THE SAME BE RELEASED IN FAVOUR OF THE
APPELLANT/OWNER, PASSED BY THE SESSIONS JUDGE
(FTC), HAVERI IN S.C NO.09/2011 DATED 17.04.2012 & THE
INTERIM ORDER OF RELEASE OF MO-1 I.E., LAPTOP IN
FAVOUR OF THE APPELLANT FOR THE INTERIM CUSTODY OF
THE APPELLANT BE MADE ABSOLUTE.
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THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
J U D G M E N T
The appeal under Section 454 of Cr.P.C. is directed against the order of the learned Sessions Judge in S.C. No.40/2008 confiscating M.O. No.1.
2. The contention of the petitioner/appellant is, the laptop was seized by the police officer from his possession during the investigation and was produced in evidence. It is marked as M.O.No.1.
3. The appellant's contention is, the prosecution has seized the laptop on the basis of voluntary statement of the accused Praveenkumar Panchaksharayya Govinalmath/Accused No.1 and others that it was used in counterfeiting the notes. During the trial, appellant sought interim custody through his application under Section 457 of Cr.P.C., which the Sessions Judge has allowed it :3: by order dated 24.03.2009. He was given interim custody subject to several conditions imposed by that order. Later when the trial ensued in S.C. No.40/2008, the appellant was examined as PW-2. The prosecution itself has elicited from him that M.O. No.1/laptop was seized from his possession, which according to it, was misused by the accused for commission of the crime. Thus, prosecution itself has shown to the Court that M.O. No.1 was seized from the possession of the appellant. But, the learned trial judge found other evidence tendered by the prosecution was not sufficient to inculpate the accused Viz., Praveenkumar P.Govinalmath, Raghavendra S.Madivalar, Rajanna @ Rajashekhar S.Salimath, Iranna V.Kalasad, Mallikarjunagoud S.Karegoudra, Sharanabasav R.Hiremath, Chanaveerayya H.Hiremath, Shankrappa P.Halabhavi and Muttanna @ Muttu F.Kattennanavar for offences punishable under Sections 489-A, 489-B, 489-C and 489-D read with :4: Section 34 of the I.P.C. and acquitted them. Consequently, learned Sessions Judge had to pass an order under Section 452 of Cr.P.C. for final disposal of the property.
4. Learned Sessions Judge without conducting any enquiry as is required by the provisions of Section 458 of Cr.P.C. has proceeded to pass an order, ordering confiscation of M.O. No.1 and other properties to the State, assailing which, this appeal is filed.
5. This is one such classic case where the learned trial judge while concluding the trial has failed to notice the necessity of passing a final order under Section 452 of Cr.P.C. regarding the properties seized and produced. Section 452 of Cr.P.C. reads thus:
452. Order for disposal of property at conclusion of trial. (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, :5: by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-
section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-
section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
6. To pass such order as required under sub- sections (1) and (2) of Section 452 of Cr.P.C., sub-section (3) requires a Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to :6: the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459 of Cr.P.C. Therefore, the property has to be disposed of only after enquiry, following the procedure prescribed by Sections 458 and 459 of Cr.P.C. which reads as follows:-
458. Procedure where no claimant appears within six months.--
(1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed.
(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate.
459. Power to sell perishable property.--If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than five hundred rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 457 and 458 shall, as :7: nearly as may be practicable, apply to the net proceeds of such sale."
7. In the instant case, the learned Sessions Judge has not followed the procedure prescribed in Sections 458 and 459 of Cr.P.C. and instead, despite the fact the appellant was the only claimant of the property in question and no rival claimants, has unjustifiably confiscated to the State.
Such an order cannot be sustained. The appeal, therefore, succeeds. M.O. No.1 is ordered to be returned to the complainant after the appeal period is over.
Sd/-
JUDGE RKK/-