Madras High Court
B.Sivaperumal vs State on 9 August, 2016
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.08.2016
CORAM
THE HONOURABLE DR.JUSTICE P.DEVADASS
Crl.R.C.(MD) Nos.504 of 2016 & 505 of 2016
B.Sivaperumal ... Petitioner / De facto Complainant
in both revisions
-vs-
State, rep.through
The Inspector of Police
Thadicombu Police Station
Dindigul District
(In Crime No.55 of 2016) ... Respondent / Complainant in
both revisions
PRAYER (Crl.R.C.(MD) No.504 of 2016): Criminal Revision Petition is filed,
under Section 397 r/w 401 Cr.P.C., to call for the records and set aside the
impugned order passed by the learned Judicial Magistrate Court No.II,
Dindigul, in Cr.M.P.No.2004 of 2016 in Cr.M.P.No.1034 of 2016 in Crime No.55
of 2016, dated 13.07.2016.
PRAYER (Crl.R.C.(MD) No.505 of 2016): Criminal Revision Petition is filed,
under Section 397 r/w 401 Cr.P.C., to call for the records and set aside the
impugned order passed by the learned Judicial Magistrate Court No.II,
Dindigul, in Cr.M.P.No.2005 of 2016 in Cr.M.P.No.1222 of 2016 in Crime No.55
of 2016, dated 13.07.2016.
!For Petitioner : Mr.S.M.A.Jinnah
(in both revisions)
^For Respondent : Mr.P.Kandasamy
(in both revisions) Govt. Advocate (Crl.Side)
:C O M M O N O R D E R
Since both the revisions have been directed as against a common order and are connected on factual matrix, they were heard together and are being disposed of by this common order.
2. Crl.R.C.(MD) No.504 of 2016 has been filed by the de facto complainant in Crime No.55 of 2016, as against dismissal of his Crl.M.P.No.2004 of 2016, by the learned Judicial Magistrate No.II, Dindigul.
3. Crl.R.C.(MD) No.505 of 2016 has been filed by the same de facto complainant in the same crime number as against dismissal of his Crl.M.P.No.2005 of 2016 by the very same Court.
4. On 13.02.2016, a strange event took place. A vehicle carrying cartons of different varieties of cigarettes was intercepted by certain persons. They have robed those items. Based on the complaint of the petitioner, a case in Crime No.55 of 2016, under Section 395 I.P.C., has been registered by Thadicombu Police.
5. Later, in the course of investigation, there were startling, shocking information. It is alleged that Gobinath Pandian, a Police Inspector is a robberer and led a gang of robberers, who have robed several items. They were arrested.
6. In the course of investigation, the Investigation Officer seized 48 Cartons of cigarettes, cash, cellphone and other items. They were produced before the learned Judicial Magistrate No.II, Dindigul. They were remanded to Court custody. And R.P.Nos.were assigned.
7. The petitioner filed Crl.M.P.No.1034 of 2016, under Sections 451 and 457 of Cr.P.C., for the return of 40 Cartons of cigarettes and filed Crl.M.P.No.1222 of 2016 for the return of 8 Cartons of cigarettes. The learned Judicial Magistrate No.II, Dindigul, ordered return of those items imposing several conditions on the lines of guidelines laid down by the Hon'ble Apex Court in Sunderbhai Ambalal Desai vs. State of Gujarat [2003 (1) CTC 175(SC)]. The Court also directed him to produce them as and when so ordered by the Court.
8. Subsequently, the petitioner filed Crl.M.P.Nos.2004 and 2005 of 2016, before the said Magistrate, seeking permission to sell those cigarette cartons pleading that he had borrowed heavily from others and his money is involved, he is crippled commercially and financially.
9. The learned Magistrate dismissed both the petitions by his impugned common order, dated 13.07.2016, observing that the offence is triable by a Court of Sessions, there is no proof for the petitioner having borrowed money from others and the properties are not perishable items, they need to be exhibited as material objects during the sessions trial and if permission is given to sell them, the sessions trial will be affected.
10. Aggrieved, the petitioner has directed these revisions.
11. The learned counsel for the petitioner would contend that as per the principles laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal (supra), Panchanamas were prepared and the items were photographed and bond also has been executed. Thus, the interest of the prosecution case has been secured.
12. The learned counsel for the petitioner further submitted that huge money has been borrowed by the petitioner for his business. The property is worth more than Rs.36,00,000/-. If they were kept as it is, they will loose their material value. Smokers dislike such kind of cigarettes. There won't be marketability. Therefore, the Court can give him permission to sell the huge items of cigarettes. Otherwise, he has to incur heavy financial loss. Already, he has suffered by the criminal act committed by the accused persons, if permission is not given, he will suffer further.
13. In support of his submissions, the learned counsel for the petitioner also cited Lenovo India (P) Ltd. vs. State [(2013) 4 MLJ (Crl) 673].
14. On the other hand, the learned Government Advocate (Criminal Side) submitted that this is a very serious case. Very serious allegations were made against a Police Inspector and his associates. Guilty should not be allowed to escape. Evidence both oral and physical / material objects shall be preserved to secure a successful conviction. In such circumstances, the permission sought for cannot be granted.
15. I have anxiously considered the rival submissions, perused the impugned common order and also the relevant materials on record and the decision cited.
16. In property offence cases, property is very important. Theft, robbery and dacoity etc., falls under this category. Now, in the present robbery case, cigarette cartons are robbed of by the robberers.
17. Petitioner is not a robberer. He is not an accused. He is a businessman. He is a crime victim. He is already victimized by the crime committed by the accused persons. Now, by the Court through its impugned common order.
18. 48 cartons of cigarettes are the property looted. Petitioner has invested huge money, more than Rs.35,00,000/- in purchasing the cigarette cartons. He is not going to smoke all of them. He intended to sell them in retail. His huge money is locked up. He is heavily indebted to others. I do not think so this case is going to be over in few days. It will take some time. In the interregnum, if the cigarettes are unused, they will not fit to be used by the smokers, consequently they will loose their commercial viability, thereafter they have to be burnt or consigned to dust bins.
19. In a theft case, if chain or cash is stolen, the complainant will be deprived of his cash or chain and the Courts are returning them to the complainant. Now, in the instant case, as observed in Sunderbhai Ambalal (supra) Panchanamas were taken and photograph was taken. Bond was also taken. In such circumstances, asking the petitioner to keep the cigarette cartons as it is will affect his financial interest.
20. In Sunderbhai Ambalal (supra), the Hon'ble Supreme Court did not say if a case is triable by the Sessions Court, the Magistrates should dismiss the property return petitions. A case is being triable by a Court of Sessions is different from enquiring a property return petition under Section 451 Cr.P.C. Ofcourse, a Magistrate cannot try a sessions case. But, he can enquire a property return petition, even if it is involved in a sessions case.
21. Suppose 100 boxes of Apples were robbed, can we ask the complainant to keep them as it is till the trial is over. If the de facto complainant is asked to keep the cigarette cartons as it is, the cigarettes will become waste. It is not that the de facto complainant is not the owner of the said property. Further, after the trial is over, in all probability the cigarette cartons are to be given to the de facto complainant. But, by that time, in all probability, the cigarettes will become useless. Ultimately, complainant will be victimized.
22. The Court can consider the compelling reasons to justify the disposal of the property (See Basava Kom Dyamangouda Patil v. State of Mysore and another [1977 (4) SCC 358]. In K.W.Ganapathy v. State of Karnataka [2002 Crl.L.J. 3867], a Car owner has been given permission to sell his Car. Similar view has been taken in Sundaram Finance Ltd. v. The State of Tamil Nadu and Another [2011 (1) MLJ 191]. In Lenovo India (P) Ltd., (supra), considering the nature of the property and huge capital being involved permission has been given to sell the computers.
23. In a criminal case, it is not only the right of the accused, the plight of the victim also should be taken into account. In a criminal case, the most forgotten element are victims of crime. The defence counsel is very much interested in securing the acquittal of the accused. Prosecution is very much interested in securing the conviction of the accused. Court is interested in securing the disposal of the case. But, nobody cares for the victims of crime. Actually, he is the real sufferer.
24. In noway, the de facto complainant is responsible for the crime alleged to have been committed by the accused. Why should an innocent man-de facto complainant should suffer further. And, there is no use of keeping the cigarette cartons as it is. Therefore, I am of the considered view that this is a fit case, that the Court should give permission to the petitioner to sell the case-property.
25. In view of the foregoings, it is ordered as under:
(i) Both the criminal revisions are allowed. (ii) The common order, dated 13.07.2016, passed in Crl.M.P.Nos.2004 and 205
of 2016, by the learned Judicial Magistrate No.II, Dindivul, is set aside.
(iii) The petitioner / de facto complainant is permitted to sell the 48 cartons of cigarettes covered in Crime No.55 of 2016, on the file of Thadicombu Police Station, Dindigul District.
To
1.The Chief Judicial Magistrate, Dindigul.
2.The Judicial Magistrate No.II, Dindigul.
3.The Government Advocate (Criminal Side), Madurai Bench of Madras High Court, Madurai.
4.The Inspector of Police, Thadicombu Police Station, Dindigul District..