Madras High Court
Kannamma vs State on 25 April, 2016
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/4/2016 C O R A M THE HONOURABLE MR. JUSTICE M.VENUGOPAL Criminal Revision Case No.284 of 2016 Kannamma ... Petitioner Vs State rep. By its Inspector of Police Deevattipatty Police Station Salem District. ... Respondent Prayer: Revision filed under Section 397 r/w. 401 of the Code of Criminal Procedure to call for the records relating to the proceedings in Crl.M.P.No.2497 of 2015 of the District Munsif and Judicial Magistrate Court, Omalur, Salem District dated 8/12/2015 in connection with FIR in Crime No.148 of 2015 on the file of the Inspector of Police, Deevattipatty Police Station, Omalur, Salem District, set aside the same and pass an order to return the properties to the petitioner. For Petitioner ... Mr.S.Doraisamy for Mr.R.Murugabharathi For Respondent ... Mr.V. Arul Government Advocate (Criminal Side). O R D E R
The Revision Petitioner/Defacto Complainant has preferred the instant Criminal Revision Petition before this Court, as against the order, dated 8/12/2015 passed in Crl.M.P.No.2497 of 2015, in Crime No.148 of 2015 by the Learned District Munsif-cum-Judicial Magistrate, Omalur, Salem District.
2. The Learned District Munsif-cum-Judicial Magistrate, Omalur, Salem District, while passing the impugned order in Crl.M.P.No.2497 of 2015 (filed by the Revision Petitioner/Defacto Complainant as petitioner), had among other things observed that ... In the present case before this Court in C.P.Nos.75/2015, 77 of 2015 and 132 of 2015, three in numbers, the case properties by means of cash, different varieties of gold jewels and gold ingots were produced. The aforesaid produced gold jewels, to support that they were pledged, the Investigating Officer had produced the petition documents, viz., notes and receipts. The aforesaid produced notes are the records of torn sheets and pinned in diaries and notes containing the details of jewels of the case. The aforesaid documents in entirety were seized by the Investigating Officer and handed over to the Court and in the aforesaid documents, petition can be filed and although there is a possibility to obtain the copies, yet no steps were taken to secure the documents. Also, in the present case, in Crl.M.P.Nos.990/2015, 991 of 2015 and 2496 of 2015, the aforesaid documents were filed by the Investigating Officer to point out the different gold jewels and at the time of case enquiry, the said documents are the one to exhibit the details relating to jewels and its weight and further that the petitioner/complainant can get the copies as case documents and in the present petition, the said documents cannot be granted in furtherance of substantial cause of Justice and resultantly, dismissed the petition.
3. Being dissatisfied with the order of dismissal, dated 8/12/2015, in Crl.M.P.No.2497 of 2015, passed by the trial Court, the Revision Petitioner/Defacto Complaint has filed the present Criminal Revision Petition, contending that the impugned order passed by the trial Court, dated 8/12/2015, is an erroneous one against Law, weight or evidence and opposed to facts.
4. The Learned Counsel for the Petitioner submits that the Petitioner is running 'SPR Bankers' and therefore, she is entitled to get back the 'Return of the stolen properties' in question. Further, it is represented that the trial Court had passed the impugned order which is not in consonance with law.
5. The Learned Counsel for the Petitioner brings it to the notice of this Court that it is the primary responsibility of the Petitioner to get back the stolen properties, as she is the Defacto Complainant in connection with Crime No.148 of 2015 on the file of the Respondent/Police and further that she had produced the documents relating to the mortgage receipt of the jewels. Unfortunately, the trial Court had not borne in mind this pivotal aspects which has resulted in serious miscarriage of Justice.
6. The Learned Counsel for the Petitioner contends that many individuals had demanded the stolen properties from the Petitioner and that the Petitioner is liable to handover the stolen properties to the Mortgagors.
7. During winding up of his arguments, the Learned Counsel for the Petitioner takes a stand that the properties mentioned in C.P.No.82 of 2015 in Crl.M.P.No.2497 of 2015, viz., Diary, Note Book, Receipt Book (containing mortgage details) on the file of the trial Court are very much required to the petitioner, because of the reason that only from those Diary, Note Books, Receipt Book, the Petitioner will be in a position to note the details of persons, who had pledged the jewels. However, the trial Court, while passing the impugned order in Crl.M.P.No.2497 of 2015, dated 8/12/2015, had opined that Diary, Note Book and Receipt Book (case properties) which were seized and handed over to the Court, the copies of the same can be obtained by filing necessary copy application for which no steps were taken, etc., and the reasons so assigned as regards the dismissal of Crl.M.P.No.2497 of 2015 are per se not legally tenable and the impugned order is liable to be set aside.
8. Per contra, it is the submission of the Learned Government Advocate (Criminal Side) for the Respondent/State that ultimately view taken by the trial Court in passing the impugned Order in Crl.M.P.No.2497 of 2015 is a valid one in the eye of Law and the same need not be set aside by this Court.
9. It is to be borne in mind that under Section 451 of the Code of Criminal Procedure, at the time of disposal of the property, the property should be under the control of the trial Court. No wonder, the order passed by the Court of Law either in terms of Section 451 of the Code of Criminal Procedure or under Section 457 of the Code of Criminal Procedure are is only during the pendency of the trial or enquiry.
10. It is to be pertinently pointed out that an order passed under Section 451 of the Code of Criminal Procedure is temporary in nature. Indeed, an enquiry under Section 451 of the Code of Criminal Procedure need not be a detailed one, inasmuch as the said Section is summary in character. At the time of dealing with a Petition under Section 451 of the Code of Criminal Procedure, the Court is entitled to look into a statement under Section 161 of the Code of Criminal Procedure, recorded by the Police or under Section 25 of the Indian Evidence Act, 1872.
11. At this stage, this Court, aptly points out that in the decision YASWANT PORWAL Vs. STATE OF ORISSA {2004 Cri.L.J 2778}, it is observed and held that where gold ornaments and other valuable articles snatched by the accused from the complainant are recovered from the possession of the accused when complainant prays for return of such things, such seized articles shall be returned to the complainant after taking security and bond so as to present evidence of being lost altered or destroyed.
12. Also, in the decision VENKATARAGHAVAN Vs. STATE OF KARNATAKA & ANOTHER {2006 Cri.L.J 1571}, at special page Nos.1572 and 1573, at paragraph 4, it is observed as follows:-
The aforesaid conditions in this case, shall have to be followed by the trial Court while releasing the amount in question as the property in question is in the Court's custody. The currency notes in question shall be given to appropriate interim custody, by the trial Court itself. For the said purpose, the advocates, public prosecutor, complainant and the accused need not go to the police station inasmuch as Investigation Officer has no role to play in disbursement of currency notes in question which are submitted to Court below, under property form. Thus, the direction issued by the trial Court that the advocates, public prosecutor, complainant and the accused shall approach the police station, is liable to be set aside. In view of the same, the orders dated 26/7/2005, 28/9/2005 and 30/9/2005, passed by the Fast Track Court-VI, Bangalore in S.C.No.99 of 2005, have to be suitably modified. Hence the following order is made:-
The seized currency notes shall be handed over to the respondent No.2 Smt.Shashi Prabha personally by the Presiding Officer of trial Court after,
(a). getting detailed proper panchanama prepared of such notes.
The detailed panchanama of the currency notes in question should be drawn by the Registrar of the City Civil and Sessions Court, Bangalore in the presence of two panchas and in the actual and physical presence of the Presiding Officer of the trial Court.
(b). taking photograph of such currency notes at the expense of State.
The photographs of such notes shall be taken in the presence of Registrar of City Civil and Sessions Court, Bangalore and the same shall be preserved by the trial Court to be marked during trial. The trial Court should see that photographs of currency notes are attested or countersigned by the accused and respondent No.2 herein (complainant), the Registrar of City Civil and Sessions Court and two panchas.
(c). after taking self bond to the extent of about Rs.2 lakhs from complainant with one surity for the likesum.
With the aforesaid directions, Criminal Petition is disposed of.
13. Apart from that, it is to be remembered that the concept of pledge is dealt with in Section 172 and Section 179 of the Indian Contract Act, 1872. In reality, in Mulla's book on Transfer of Property Act, for the term ''pledge'', it is described as under:-
A pledge is a bailment of movable property by way of security. Possession is given and the transaction involves a transfer of special property in the subject of the security. A pawnee has no right of foreclosure since he never had absolute ownership at law and his equitable title cannot exceed what is specifically granted by law. In a pledge the pledgee is in possession of and has a special property in the goods which he is entitled to detain to secure repayment.
14. Section 172 of the Contract Act, provides that bailment of goods as security or payment of debt or performance of a compromise is called 'pledge'. 'Bailor' is the 'Pawnor' and 'Pawnee' is the 'Bailee'.
15. Section 148 of the Contract Act, provides that bailment is the delivery of goods by one person to another for some purpose, based on a contract that they shall, when the purpose of fulfilled, be returned or otherwise, disposed of according to the directions of the individual delivering them. The individual delivering the goods is called 'Bailor' and the person to whom the goods are delivered is 'Bailee'.
16. It is to be noted that the Honourable Supreme Court, in the decision SUNDERBHAI AMBALA DESAI V. STATE OF GUJARAT reported in AIR 2003 SC 638, laid down as follows:-
With regard to valuable articles, such as golden or silver ornaments of 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 Court is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders, as contemplated under S.451, Cr.P.C., at the earliest.
For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken placed, the seized articles be handover 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.
For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under S.451, Cr.P.C. 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 S.451, Cr.P.C., to impose any other appropriate condition. 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 the 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, the Court may direct that such articles be handed over 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 purpose of investigation and identification. For currency notes, similar procedure can be followed.
17. Apart from that, even the trial Court can take a security and bond in regard to the gold/silver ornaments and other valuable articles to be returned, so as to prevent evidence of being lost or altered. Undoubtedly, the trial Court is entitled to impose necessary restrictions at the time of passing an order for return of property.
18. In the present case on hand, the Petitioner/Defacto Complainant, in a Petition under Section 451 of the Code of Criminal Procedure in Crl.M.P.No.2497 of 2015 had mentioned in detail from Serial Nos.1 to 7 about the case properties, viz., Diary, Notes, Receipt Book.
19. Also in the sworn affidavit, in Crl.M.P.No.2497 of 2015 filed before the trial Court by the Revision Petitioner, at paragraph No.3, it is mentioned as follows:-
The respondent Police brought the jewels and cash to the Court in C.P.No.82/2015 and the same are now lying in Court. I humbly submit that the jewels and cash are needed by me for disbursing the same to public who have pledged jewels to us. If the jewels are allowed to be in the Court, the quality of the jewels will be diminished and I have to face serious problems in the hands of public. I further submit that I will not sell the jewels till the disposal of the above criminal case. I also undertake to produce the jewels and cash before the Court as and when this Honourable Court directs me to do so. Hence I have come forward with this petition for return of the jewels and cash to me for interim custody of the same. If not, I will be prejudiced like anything.
20. On the side of the Petitioner, it is represented before this Court that in the Petition as well as in the sworn affidavit in Crl.M.P.No.2497 of 2015, at paragraph 3, the Petitioner had averred that she has filed the Petition for return of jewels and cash to her as an interim custody, yet in reality, the Petitioner had only sought for return of case properties in C.P.No.82 of 2015 (S.Nos.1 to 7, viz., Diary, Note Books and Receipt Books) and only for the return of the said materials, the trial Court had passed the impugned order, negativing her request.
21. From the spirit and tenor of the aforesaid decision of the Honourable Supreme Court in SUNDERBHAI AMBALA DESAI V. STATE OF GUJARAT reported in AIR 2003 SC 638, it is latently and patently quite clear that at the time of handing over of the articles/return of jewels (including Gold jewels/Silver Articles, a Court of Law is quite right within its purview to prepare a panchanama in respect of the said articles and if the situation so warrants, can order for taking photographs of such articles and also issue necessary directions for executing a bond, so that the same would be required at the time of trial of the main case. It cannot be gain said that the necessary security can be taken from the concerned.
22. In this connection, this Court relevantly points out that the trial Court may explore the possibility of taking xerox copies of the Diary, Note Book, Receipt Book (S.Nos.1 to 7) mentioned in C.P.No.82 of 2015 in Crl.M.P.No.2497 of 2015 and even prepare an appropriate panchanama for the aforesaid materials/properties. If need be, a bond may also be obtained from the petitioner that she would produce the said Diary, Note Book and Receipt Book, for the purpose of conduct of main case in Crime No.148 of 2015. The said bond may be taken by the trial Court from the petitioner, after taking proper security.
23. Be that as it may, in so far as the present case is concerned before the trial Court in Crl.M.P.No.2497 of 2015, the Revision Petitioner/Defacto Complainant had not entered into the witness box and produced documents like Pawn Tickets/Pawn Receipt to be marked as Exhibits. Even on the side of the Respondent/Complainant, no one had entered into the witness box to repel/repudiate the plea taken on behalf of the Petitioner.
24. In the light of the aforesaid detailed qualitative and quantitative discussions and by virtue of ingredients of Section 451 of the Code of Criminal Procedure, wherein the Court of Law is empowered to return the concerned properties in C.P.No.82 of 2015 beginning from Serial Nos.1 to 7 (Diary, Note Books and Receipt Book) and also this Court, bearing in mind an essential fact that the trial Court as a matter of prudent care, caution and with utmost circumspection can permit the parties to let in oral and documentary evidence by examining the witnesses in the manner known to Law and in accordance with Law and in short, this Court, on an overall assessment of the attendant facts and circumstances of the present case in a conspectus fashion, comes to a resultant conclusion that the impugned order, dated 8/12/2015, passed by the trial Court, in Crl.M.P.No.2497 of 2015, is not in consonance with law and on this score, to prevent an aberration of Justice, interferes with the said order and sets aside the same.
25. In the result, this Criminal Revision Case is allowed and the order passed by the trial Court in Crl.M.P.No.2497 of 2015 is set aside by this Court, for the reasons assigned in this Criminal Revision Petition. Further, the trial Court is directed to restore Crl.M.P.No.2497 of 2015 to file and to pass a fresh, reasoned, speaking order, on merits, in a dispassionate manner, uninfluenced and untrammelled with any of the observations made by this Court, within a period of three weeks, from the date of receipt of a copy of this order. It is made clear that the trial Court shall provide enough opportunities to the respective parties to let in oral and documentary evidence and the parties are to avail the same, if they so desire/advised. Also that the trial Court is to bear in mind the principles governing the salient features of Section 451 of the Code of Criminal Procedure, pertaining to the return of properties and to pass appropriate orders diligently, within the time adumbrated supra.
25/4/2016 mvs.
Index: Yes website: Yes To
1. The District Munsif and Judicial Magistrate Court, Omalur, Salem District
2. The Inspector of Police Deevattipatty Police Station Salem District.
M.VENUGOPAL,J mvs.
Criminal Revision Case No. 284 of 2016 25/4/2016