Madhya Pradesh High Court
Rajendra And Company Thr. vs The State Of Madhya Pradesh on 19 June, 2019
CRA No.2780/2019
Rajendra and Company
vs.
State of M.P.
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HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
CRA NO. 2780 OF 2019
Rajendra & Company ....APPELLANTS
Versus
State of M.P. .... RESPONDENT
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri Arvind Dudawat, learned counsel for the appellant.
Smt. Gayatri Surve, learned Public Prosecutor for the
respondent/State.
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Whether approved for Reporting :
Reserved on : 29/4/2019
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JUDGMENT
(Passed on 19th of June, 2019) This criminal appeal is preferred under Section 454 of the CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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CrPC being aggrieved by the impugned judgment dated 14/2/2019 passed by the Special Judge, Dacoity and Vyapharan Prabhavit Kshetra Adhiniyam, Morena (M.P.) (in short "MPDVPK Act") in Special Case No.29/2011, whereby the application filed by the appellant under Section 452 of CrPC arising out of the judgment dated 01/11/2018 passed in Special Case No.29/2011 has been rejected.
2. It is argued by learned counsel for the appellant-firm that the appellant-firm is duly registered under the Commercial Tax Department and Central Commercial Tax, having specific PAN card. The appellant-firm deals in silver and gold billions. It is also doing the business of manufacturing and sale of gold and silver ornaments. As per the prosecution case, Someshwar, an employee of the appellant-firm having silver and cash, was on the way from Gwalior to Mathura. When his car bearing registration No. HR 51 AJ 4120 reached near village Deori, a Bolero car overtook his car the persons sitting in Bolero vehicle and stopped him and forcibly taken away his car bearing registration No. HR 51 A J 4120, in which amount of Rs.28,20,358/- and 20.509 kg silver were kept. An FIR of the incident was lodged by Someshwar in Police CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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Station Civil Lines Morena, upon which a criminal case was registered at Crime No.147/2011 for the offence punishable under Section 392 of IPC and Section 11/13 of MPDVPK Act. During investigation, police arrested three persons and recovered the looted property i.e. cash and silver.
3. It is pertinent to note here that one co-accused Anwar Ali was absconding and even during trial, he remained absconded, therefore, nothing of the looted property could be recovered from him.
4. After concluding the trial, the trial Court passed the judgment of acquittal in favour of the arrested accused persons on 01/11/2018. However, none of the accused persons claimed the looted property to be of their ownership. The trial Court also has not given any direction in regard to the disposal of the property recovered from the accused persons.
5. During trial, appellant filed an application under Section 451 and 457 of the CrPC for giving supurdagi of the seized property which was looted from the employee of the appellant- firm. The said application was rejected by the trial Court. However, after the judgment of acquittal, the appellant filed an CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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application under Section 452 of CrPC for return of the seized property, which was also dismissed by the trial Court. The trial Court rejected the application on the ground that earlier the application filed by the appellant was objected by accused Ramkumar Singh and Akhityar Ahmed (now dead) and one accused namely Anwar Ali is absconding, therefore, the seized property could not be given in supurdigi.
6. It is submitted by learned counsel for the appellant that the impugned order is illegal and perverse. The Court below persistently failed in considering the mandate of Section 452 of CrPC. The trial Court has not considered the fact that earlier application preferred under Sections 451 and 457 of CrPC was rejected merely on the basis of oral objection of some of the accused persons under Section 451 (2) of CrPC. The lower Court was duty bound to pass the orders with respect to disposal of the property, despite the Court below has erred in passing the impugned order. Therefore, learned counsel for the appellant has prayed for allowing this appeal and for setting aside the impugned order dated 14/2/2019 and the application filed under Section 452 of CrPC be allowed with the direction to return the property to the CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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appellant.
7. Per contra, learned Public Prosecutor opposed the submissions of learned counsel for the appellant and prayed for dismissal of the appeal.
8. I have heard learned counsel for the parties and perused the record.
9. Section 452 of CrPC runs as under:-
"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, 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.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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presented, until such appeal has been disposed of.
(5) In this section, the term" property"
includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."
10. From the aforesaid section, it is apparent that this provision provides discretionary power to the Magistrate to pass appropriate order with regard to the property which is required to be disposed of under Section 452 of CrPC. Under Section 452 of CrPC, an appeal can be preferred in the Court to which the appeal ordinarily lies from conviction by the former Court.
11. In the present case, it is apparent that one co-accused namely Anwar Ali is still absconding, therefore, in the opinion of this Court, the trial Court has not committed any perversity or illegality in passing the impugned order as the seized property i.e. silver will be required in evidence in respect of the trial of the absconding accused Anwar Ali.
12. In view of the aforesaid, this appeal sans substance and is hereby dismissed. However, the trial Court will be at liberty to consider as to disposal of the property under Section 452 of CrPC CRA No.2780/2019 Rajendra and Company vs. State of M.P.
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afresh after hearing absconding accused Anwar Ali, if any application in this regard is filed.
The appeal stands disposed of accordingly. The record of the trial Court be sent back immediately along with a copy of this judgment.
(Rajeev Kumar Shrivastava)
ALOK
KUMAR Judge
2019.06.21
10:36:48
AKS
+05'30'