Bombay High Court
Navin S/O Vasantraj Modh vs State Of Maharashtra on 9 December, 2011
Author: A. P. Bhangale
Bench: A. P. Bhangale
1
Cr. Appln.237/2008
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
Criminal Application No. 237/2008
Navin s/o Vasantraj Modh,
Aged about 37 years, occ.Business,
R/o Hansapuri, Juna Bhandara
Road, Nagpur. .. Applicant
Versus
1] State of Maharashtra,
through Police Station Officer,
Police Station, Tahsil Nagpur.
2] Vishalbhai s/o Narendrabhai Parekh,
Aged Major, Occ. Business,
R/o C/o R. V. Jewelers and Parekh R.
Vitthaldas, Sarafa Bazar, Itwari,
Nagpur.
3] Sachin s/o Prabhakarrao Sutone,
Aged Major, Occ Business,
R/o C/o Shri Gajanan Jewelers,
Tukdoji Putla, opp. Cancer Hospital,
Quarter No.2/5, Vidarbha Housing
Board Colony, Nagpur. .. Respondents.
...
Shri J. M. Gandhi, Advocate for the applicant.
Shri S.J. Jichkar, Advocate for respondent no.1.
None for respondents 2 and 3.
..
Coram : A. P. Bhangale, J.
Dated : 9/12/2011.
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2
Cr. Appln.237/2008
ORAL JUDGMENT :
1] By this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for to quash and set aside the impugned order of dismissal passed by the learned Sessions Judge (in charge) Nagpur on 16.8.2007, whereby the Criminal Revision Application which arose out of common order dated 15.2.2007 passed by the learned Judicial Magistrate First Class, Court No.4, Nagpur, below Misc. Cri. Appln. Nos. 1573/2006, 1818/2006 and 2000/2006 (which were applications by different claimants to the seized property in Crime No.213/2006, reported at Tahsil Police Station, Nagpur) came to be dismissed.
2] It appears that Vishalbhai Narendrabhai Parekh running a business in the name and style as "R. V. Jewellers" and "Parekh R. Vitthaldas" had preferred Misc. Criminal Application No. 1573/2006 to claim seized gold reported to the learned Magistrate by the Police from Tahsil Police Station. Another claimant Sachin Prabhakarrao Sutone had filed Misc. Criminal Application no.1818/2006 claiming the same property, while the present applicant also preferred Misc.
Criminal Application No.2000/2006 to claim seized gold. It may be noted that Crime No.213/2006 was reported to by Tahsil Police ::: Downloaded on - 09/06/2013 17:59:38 ::: 3 Cr. Appln.237/2008 Station under Sections 420, 467, 468, 471, 411 read with Section 34 of the Indian Penal Code. During the course of the investigation, the police had seized gold weighing 4.350 grams and some cash amount in the sum of Rs.1,52,000/-
3] Considering three applications preferred as above by different claimants in respect of the seized property reported to the learned Magistrate, the learned Magistrate on the basis of averments made in the various applications and material placed before him dealt with the question as to who is prima facie entitled to possession of seized property in Crime No.213/2006 reported at Tahsil Police Station, Nagpur. On prima facie view of the matter, the learned Magistrate did not find material in support of the application filed by one Sachin Prabhakarrao Sutone and also regarding the application made by present applicant. It was observed that the present applicant did not file any document to corroborate his contention about alleged ownership of the seized gold. According to the learned Magistrate, copy of the Item Register filed by the present applicant did not reveal as to how he came into possession of the property in question. While the learned Magistrate considered the contention by the Investigating Officer concerned that the prime accused Manish had delivered 1200 grams gold to co-accused Sachin Sutone who, in turn, out of the said ::: Downloaded on - 09/06/2013 17:59:38 ::: 4 Cr. Appln.237/2008 1200 grams gold sold 800 grams of gold to the applicant Navin Vasantraj Modh.. Thus, on the ground that the present applicant appeared a prima facie purchaser of the stolen property and he did not produce any document to show his legal possession of the ingot gold weighing 798 grams allegedly recovered from his possession. It was concluded that he is not entitled to possession of ingot gold weighing 798 grams. Thus, prima facie when the accused Manish Pasari in the case had not claimed the amount as well as gold; the learned Magistrate going by settled principles of law that owner or a person in the lawful possession of the property is entitled to claim its possession pending trial thus finding that Vishalbhai Parekh, who preferred Criminal Application No.1573/2006 is prima facie is entitled to have possession of gold weighing 4.345 kgs. and cash amount of Rs. 162,000/-. Conditional order was passed to direct release of seized gold and cash of Rs. 1,62,000/- seized during investigation in the Crime No.213/2006 to Vishalbhai Parekh (applicant in Criminal Application No.1573/2006) subject to his executing an indemnity bond in the sum of Rs. Fifty lakhs with a surety in the like amount with further conditions imposed against the said claimant Shri Vishalbhai and he shall not change the nature of the properties either personally or through agent and shall not cause any damage to the property given in his possession and furthermore;
::: Downloaded on - 09/06/2013 17:59:38 ::: 5 Cr. Appln.237/2008he shall not dispose of the property until further order and shall produce the same in the Court whenever required by the Court. Thus, it was conditional order provisionally passed and is subject to final order to be passed by the Court at the conclusion of the trial. The common order dated 15.2.2007 passed by the learned Judicial Magistrate First Class, Court No.4, Nagpur, was challenged in revision.
It appears that the learned Sessions Judge-in charge-Nagpur dismissed revision application on the ground that it was an interlocutory order and revision was untenable in law.
4] The learned Advocate for the applicant submitted that the learned Sessions Judge wrongly considered the order passed by the learned Magistrate as an interlocutory order passed under Section 451 of the Code of Criminal Procedure, particularly when the Misc.
Criminal Application preferred by the claimant Navin Modh(present applicant) mentioned Section 457 of the Code of Criminal Procedure.
5] Learned Advocate for the applicant has made reference to the ruling in Jagtar Singh and another Vs. State of Punjab and others reported in IV(2004) CCR 55 (Supreme Court) to canvass proposition that during the proceedings, there cannot be an adjudication regarding rights between the parties in regard to the ::: Downloaded on - 09/06/2013 17:59:38 ::: 6 Cr. Appln.237/2008 amount in deposit as direction, if any, may cause prejudice to the defence of the accused. It appears that the observations made in paragraph 11 of the said ruling were with reference to the adjudication by the High Court in the bail application proceedings regarding rights of the parties as to amount deposited in the Court for want of settlement between the parties in Lok Adalat. Thus, according to the observations, since it was a civil dispute, the rights could not have been adjudicated in the bail application proceedings.
For that reason, the Apex Court had set aside the order passed by Punjab and Haryana High Court, till appropriate order is passed by the Competent Court. The next ruling which is cited in the case of Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd. and another, reported in 2002(1) Mh.L.J. 81 in order to submit that the question as to whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. In other words, according to the learned Advocate for the applicant, the learned Sessions Judge ought to have decided the revision on merits instead of considering the impugned order as interlocutory order. Since according to him, the order impugned was in effect rejection of claim made by the applicant before the learned Magistrate.
::: Downloaded on - 09/06/2013 17:59:38 ::: 7 Cr. Appln.237/20086] The reference is also made to the ruling in Milind s/o Prabhakar Rokade Vs. State of Maharashtra and another reported in 2003 (2) Mh.L.J. 735 in order to submit that with reference to the application under Sections 451 and 457 of the Code of Criminal Procedure when such orders are passed, such orders cannot be treated as interlocutory especially when substantial rights of the parties are affected. It is pointed out that this Court has exercised inherent jurisdiction under Section 482 of the Code of Criminal Procedure for return of motor-cycle on execution of supratnama and upon furnishing guarantee to the satisfaction of the learned Magistrate concerned in that case.
7] Reference is also made to ruling in State vs Mrs. Renukadevi, reported in 1999 Mh.L.J. 2955 (Madras High Court) to canvass a proposition that order granting custody of the seized property by deciding right to possession of property cannot be treated as an interlocutory order. The learned Advocate for the applicant submitted that an order passed by the Trial Court under Section 452 of the Code of Criminal Procedure, after going into merits of the application cannot be treated as interlocutory order particularly when the property was seized by the police during the course of the investigation and seizure was reported to the Magistrate though ::: Downloaded on - 09/06/2013 17:59:38 ::: 8 Cr. Appln.237/2008 seized property was not produced before the Criminal Court during the inquiry into an application by the claimant.
8] I have perused rulings cited above and also heard learned A.P.P., who opposes this application. According to the learned APP, learned Judicial Magistrate First Class, Court No.4, Nagpur had considered merits of the claim by the present applicant. The present applicant although stated on oath that he is owner of 798 grams ingot gold seized from his possession in the course of the investigation into crime, the applicant Navin had not produced documentary evidence to establish prima facie ownership of the gold recovered from his possession. According to the learned APP, copy of the Item Register filed by the present applicant was also considered by the Magistrate and it did not reveal as to how the applicant can claim lawful possession of the said gold. Thus, the learned Magistrate was left with version of the Investigating Officer at that prima facie stage and according to the Investigating Officer, the prime accused Manish had delivered 1200 grams of gold to the co-accused Sachin Sutone while said Sachin Sutone sold 800 grams out of the said gold to present applicant Navin at low price. Thus, 798 grams gold was seized from the present applicant pursuant to the disclosure statement made by co-accused Sachin Sutone. Thus, according to the ::: Downloaded on - 09/06/2013 17:59:38 ::: 9 Cr. Appln.237/2008 Investigating Officer, the present applicant Navin was prima facie a purchaser of the stolen property and was not in legal possession of the same. Thus, according to learned APP, provisional conditional order to return the seized property in favour of claimant Vishalbhai was rightly passed by the learned Judicial Magistrate First Class, Court no.4, Nagpur, subject to further orders of the Court. For these reasons, learned APP submitted that the contention as to whether impugned common order is interlocutory or not goes into oblivion as it was provisionally passed subject to reasonable conditions to ensure its production at trial and is, therefore, subject to final outcome of the case pending with the learned Judicial Magistrate First Class, Court No.4, Nagpur.
9] Considering the contention of the learned APP, it may be noted that Section 451 of Code of Criminal Procedure would operate pending investigation or inquiry when property is produced before the Court. While Section 457 of Code of Criminal Procedure is a residuary provision which would operate pending inquiry or trial when property is not produced before the Court. While Section 452 of the Code of Criminal Procedure would operate at the time of conclusion of the trial when property produced before the Trial Court is directed to be delivered to the person who is entitled to lawful ::: Downloaded on - 09/06/2013 17:59:38 ::: 10 Cr. Appln.237/2008 possession of the same with or without conditions. It must be further noted that the Magistrate concerned has wide discretion to pass an order, which may be proper, use of discretion which has to be exercised judicially after due consideration of the interest of justice including the prospective necessity of the production of the seized property at the time of the trial. Therefore, it is not advisable to return the seized property if it is likely to be required for identification and use at the time of the trial but the Trial Court has discretion to release seized property conditionally considering the merits of the claim upon exercise of judicial discretion considering the prospective necessity of the seized property at the time of the trial. It is open for the Criminal Court to exercise its discretion to dispose of the property at the time of conclusion of the trial with or without condition. That would be necessarily on the basis of evidence led before it in the main case. The Criminal Court would not enter into the complicated questions of title to the property which shall always be decided by the competent Civil Court. The Trial Court would as a general rule return the property to the person from whom it was seized provided that the Trial Court may by way of an exception decide the question of possession of the seized property while considering as to which of the claimant is best entitled to the lawful possession of the property.
::: Downloaded on - 09/06/2013 17:59:38 ::: 11 Cr. Appln.237/200810] Considering these settled principles and the fact that the trial is still pending and that it is open for the present applicant to appear before the Trial Court and pray for return of the property upon adducing necessary evidence before it and fact that the the Trial Court can consider such application under Section 452 of the Code of Criminal Procedure; this Court need not enter into merits of the controversy as to which of the applicant is best entitled to lawful possession of the seized property. The factum of lawful possession can be decided by the Trial Court under Section 452 of the Code of Criminal Procedure at the time when trial concludes.
11] For all these reasons since power under Section 482 of the Code of Criminal Procedure is to be exercised sparingly and exceptionally, no ground is made out to exercise inherent powers.
Criminal Revision Application is, therefore, dismissed. The applicant is at liberty to prefer an appropriate application before the appropriate Court.
JUDGE Ambulkar.
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