Karnataka High Court
Smt. Uma W/O Late Chakravarthy vs State Of Karnataka - By Sub-Inspector Of ... on 6 July, 2006
Equivalent citations: 2006CRILJ3761, 2006(4)KARLJ661
JUDGMENT H.V.G. Ramesh, J.
1. Criminal Petition 640/2006 is filed seeking to relax the condition imposed by the Addl. Chief Metropolitan Magistrate, Bangalore while ordering releasing of the seized property in favour of the petitioner and also to set aside the order dated 1.12.2005 -annexure A in CC 5866/1990.
2. Criminal Petition 2964/2006 is filed by the State seeking to set aside the order dated 11.4.2005 in CC 5866/1990 passed by the Chief Metropolitan Magistrate, Bangalore allowing the application filed by the respondents Under Section 451 and 457, Cr.PC.
3. One Smt Uma W/o Chakravarthy a resident of Kolathur in Dharmapuri District filed a petition. It is her case that the Srirampuram Police had registered a case against her husband in Crime No. 428/1988 Under Section 41(d) r/w Section 102, Cr.PC alleging that he was in possession of diamond stones without any proper documents for the possession of the same and they had seized 1246 stones of 84 carats 97 cents and 139 stones of assorted sizes, in all 1385 stones from the possession of the husband of the petitioner under a mahazar and recorded the seizure in PF 61/1988. Subsequently, the said diamond stones were transferred to the respondent police i.e, Sampangiramanagar Police and the same was recorded in PF 104/1989 on 28.8.1989. According to the petitioner, the value of the said stones were assessed at Rs. 22,49,400/-.
4. Further, the Samapangiramanagar Police have also registered a case in Crime No. 529/1988 against one Raju for the offence punishable Under Section 18 of the Karnataka Treasure Trove Act on the complaint of one Mohammed Kasim. Another two cases have been registered against one Venkatesh and Appaswamy Under Section 41(d) r/w Section 102, Cr.PC in Crime No. 177/1988.
5. According to the petitioner, there is no charge sheet filed against her husband. On the other hand, all the four cases were transferred to the respondent police and they have filed charge sheet only Under Section 18 of the Karnataka Treasure Trove Act ('Act' for short) in respect of Crime No. 177/1988 against the said Raju in CC 5866/1990 before the CMM, Bangalore.
6. The complainant Mohammed Kasim is said to be a contractor for demolition and construction of buildings and one Krishnappa had purchased a house in K.H. Road, Bangalore and had entrusted the work of demolition to Mohammed Kasim. At the time of demolition, one worker by name Raju had found diamond stones in a soap box concealed in the wall who, having recovered the same, sold it to the husband of the petitioner and to one Appaswamy for a valuable sale price. On the complaint of Mohammed Kasim, the respondent police registered a case against Raju and took up the matter for investigation. During investigation, the diamond stones seized from the possession of the husband of the petitioner were also transferred to the said case in CC 5866/1990. The husband of the petitioner had filed an application for the release of diamond stones seized from him. Learned Magistrate rejected the said application stating that the case was in the primitive stage of investigation and ordered for depositing the same in the Treasury of the Deputy Commissioner, Bangalore for safe custody. Similar application filed by Appaswamy is also said to have been rejected. During pendency of the matter, the husband of the petitioner died. Petitioner filed an application as his successor. Further, it is stated in the petition that the police after arresting the accused Raju and after investigation, have filed the charge sheet Although the said Raju was released on bail, he did not appear before the court below and the case was prolonged and as the respondent police failed to secure the accused before the court and in view of the delay in the proceedings, petitioner filed an application for the release of the said diamond stones in her favour and the learned Magistrate kept the said application Under Section 457, Cr.PC pending for disposal along with the main matter.
7. According to the petitioner, the matter was prolonged for nearly seventeen years and the police could not produce the accused After recording the evidence of the complainant - Mohammed Kasim, holding that no case has been made out, learned Magistrate dropped the proceedings Under Section 258, Cr.PC on 30.10.2004. According to the petitioner, the application filed by the husband of the petitioner and thereafter by the petitioner and one Appaswamy Under Section 451 and 457, Cr.PC were pending for disposal and no order had been passed by the Magistrate. However, on 11.4.2005, the learned Magistrate after having heard the petitioner, has passed an order for releasing the diamond stones with a condition to execute an indemnity bond for Rs. 1 crore with one surety for the like sum and only on the acceptance of the surety the Deputy Commissioner was directed to release the same in favour of the petitioner. The petitioner contends that she could not comply with the said condition as she was unable to secure a solvent surety for Rs. 1 crore. As such, she filed an application before the Magistrate for modification of the order Under Section 482, Cr.PC and for relaxation of the condition. The said application was rejected by the learned Magistrate on 1.12.2005 holding that he has no power to modify his own orders. Hence, this petition.
8. In the petition filed by the State, while averring similar facts, it is submitted that the 1st respondent's husband was the recipient of the diamond stones from one Raju and the court below has allowed the application of the rival claimants i.e, Chakravarthy and Appaswamy for the treasure and being aggrieved by the order of the learned Magistrate in ordering for release of the diamond stores in favour of the applicants, this petition is filed contending that the order of the Chief Metropolitan Magistrate is illegal and without jurisdiction and that the Magistrate has erred in entertaining the application Under Section 451 and 457, Cr.PC subsequent to the passing of the final order and the court has no jurisdiction to alter or review the same once it has signed the final order as it has become functus officio and there is a clear bar Under Section 362, Cr.PC.
9. It is further contended, according to the Act, the 'treasure' recovered vests with the Government and only the Deputy Commissioner would be the competent person to initiate proceedings under the Act and as such, the order passed by the Chief Metropolitan Magistrate Under Section 451 and 457, Cr.PC is liable to the set aside. It is also the case of the State that the jurisdiction of the Magistrate is ousted in view of Section 7 of the Act and ignoring this aspect, applications are entertained and disposed of which is illegal and without jurisdiction. It is also their case that the impugned order is passed without giving an opportunity to the prosecution to oppose the application.
10. Heard the counsel for the respective parties.
11. It is the submission of the counsel representing the petitioner - Uma that, what is sought for is only to modify the condition imposed by the Chief Metropolitan Magistrate as regards executing an indemnity bond for Rs. 1 crore and a surety for the like sum and it has become impossible for the petitioner to comply with the same and that the learned Magistrate ought not have imposed such stringent condition and the provisions Under Section 451 and 457, Cr.PC do not provide for imposing of such condition. It is further submitted that the Magistrate can very well modify the order and the inherent power is very much available to him. It is his further submission that the sub-ordinate courts have a statutory duty and obligation to conduct the trial or enquiry fairly, smoothly and effectively and must be held to possess inherent jurisdiction in the absence of any specific provision in the Code and in support of his argument, he relied upon the decision of the Andhra High Court in Public Prosecutor, Andhra Pradesh v. K. Prakasa Reddy and Ors. 1973(1) Andhra Weekly Reporter 291 and also the decision of the Punjab & Haryana Court in Daljtt Singh v. State of Haryana 1989(3) Crimes 301 to contend that as per Section 457 and 458, Cr.PC when the police have taken possession of the articles from the petitioner and nobody has claimed the articles except the petitioner and when he is not an accused and he wants the articles back, presumption is that the petitioner is the owner of the articles when the articles were seized from his possession by the police unless somebody else with a better title claims them. As regards the inherent power of the court, learned Counsel has relied on the decision in State of Uttar Pradesh v. Mohammad Naim .
12. Per contra, learned Government Pleader resisted the claim of the petitioner seeking for modification of the condition on the ground that the learned Magistrate has no power to pass such an order of release of property when admittedly the property seized comes within the definition of 'Treasure' under the Act and it has to be dealt as per the provisions of the Act by the Deputy Commissioner and, the order of release subject to execution of the indemnity bond or relaxation of condition is unwarranted According to the Government Pleader, the trial court has committed an error in passing the order of release, though subject to condition and that condition cannot be relaxed as the property belongs to the State and it has to be dealt with by the Deputy Commissioner as per the provisions of the Act.
13. Replying to this argument, petitioner's counsel submitted that a belated application is filed by the State which is barred by limitation and the State has no locus standi to question the order passed by the learned Magistrate since there is no claim set up by any other person, as such, the impugned order came to be passed and accordingly defended the order passed. However., he has sought for relaxation of the order passed by the learned Magistrate.
14. In the light of the arguments advanced, let me consider whether the impugned order of the learned Magistrate requires interference and whether the petitioner - Uma is entitled for relaxation of the condition and release of the property in her favour.
15. As per the prosecution, the undisputed facts are: a house was purchased by one Krishnappa at K.H. Road, Bangalore. The demolition work of the house was entrusted to one Mohammed Kasim, a contractor. When Mohammed Kasim was getting the work done, Raju a coolie while demolishing the wall, got one soap box containing diamond stones which he sold to a third party. On the complaint filed to the police in this regard, the property purchased by the third party from the said Raju was being looked and the police also sought for to deal with the matter as per the Act and as per the orders of the Deputy Commissioner, the case was registered against the said Raju. However, no case was registered against persons who purchased the diamond stones from the said Raju.
16. According to the petitioner's counsel, the husband of Uma viz., Chakravarthy has purchased the diamond stones for Rs. 80,000/-from an unknown person to whom according to the prosecution, the diamond stones were sold by Raju. Further, applications were filed by Krishnappa, owner of the house, one Appaswamy and also Chakravarthy claiming the property as belonging to them. On the ground that Krishnappa's advocate did not represent him, his application was not considered. By order dated 11,4.2005, while disposing of the application submitted by Appaswamy and Chakravarthy, the Magistrate has passed the impugned order. But, prior to the above order, one more application is also said to have been filed which came to be dismissed and the seized property was ordered to be kept in the Treasury of the Deputy Commissioner.
17. The Sampangiramanagar police have filed a charge sheet against Raju as per Section 20 of the Act. He was released on bail subsequently. However, in spite of issuance of summons and warrants, the police could not secure the said person. As per Section 19 of the Act in the event if it is proved that the prosecution case was established, sentence could be imposed against the accused to convict him for six months or to pay fine or both. Learned Magistrate by order dated 30.10.204 noting that the case was of the year 1988 and during 1990 charge sheet was filed and so far the accused was not secured, has observed that no purpose would be served in continuing the proceedings and accordingly dropped the proceedings acting Under Section 258, Cr.PC.
18. At this juncture, let me consider the salient features of the Karnataka Treasure Trove Act and also the definition of the word 'Treasure'. Treasure means anything or of any value hidden in the soil or anything affixed thereto. The salient features of the Act are: Whenever any treasure exceeding an amount of Rs. 10/- hidden in the soil or anything affixed to land is found, the finder thereof and the owner and occupier of the place in which the treasure is found should inform the Deputy Commissioner of the finding of treasure. The Deputy Commissioner will report the particulars to the Government and the Director of Archaeology and the prescribed officer and publish a notification of the particulars and call upon the persons interested in the treasure to appear for an inquiry. The Deputy Commissioner will determine the treasure so hidden by any person within 100 years and if any person claims the treasure and such person establishes his right by suit in a Civil Court, such treasure will be given to him. But, if the Deputy Commissioner finds that the treasure was hidden for more than 100 years before it was found or no suit is instituted, the Deputy Commissioner may declare the treasure as ownerless. When such a declaration is made and no person has claimed the treasure as owner of the place in which it was found, it shall be given to the finder; if any person claims it as owner of the place, the treasure should be divided between the finder and the owner in equal shares, the finder not being entitled to more than one lakh of rupees, unless the parties agree to any other mode of division. The State Government may also acquire the treasure on payment of value of the material thereof together with one-fifth of such value. Persons contravening the provisions of the Bill are liable to punishment.
19. In the instant case, as per the prosecution, one Raju, a coolie was demolishing the old house purchased by one Krishnappa and the work was entrusted to Mohammed Kasim a contractor. The said Raju found a soap box containing diamond stones and he sold the same to a third person and that person in turn sold the property to Chakravarthy and Appaswamy. Even according to Chakravarthy, he purchased the property from an un-known person. First the property was sold to a third person for Rs. 3,800/- who in turn sold it to Appaswamy and Chakravarthy. According to the petitioner, the property was purchased by her husband for Rs. 80,000/-. 'Treasure' according to the definition under the Act is anything of value hidden in the soil or anything affixed thereto. In the instant case, it is undisputed the diamond stones are recovered in soap box which was hidden in the wall of the house purchased by Krishnappa and the same was found by Raju the coolie when the building was being demolished. Instead of reporting the same, he in turn sold the same to some third person. However, Mohammed Kasim who was the contractor also is shown to have presented a claim including Krishnappa, the owner of the house. It appears Krishnappa's case was not considered on the ground that he was not represented when the matter was before the court. According to the prosecution, once it is found that the property seized is a treasure found in the wall which is very much attached to the earth, as per the definition, the hidden treasure was recovered from the wall affixed to the earth. It is also admitted fact that no material is placed by the husband of the petitioner that it belongs to him. Rather, it is his case that he purchased the property from an unknown person for Rs. 80,000/- and according to the prosecution, the material was recovered/seized during investigation on the complaint lodged and on some information gathered. Ultimately, the case was registered in Sampangiramanagar Police Station and the property was produced and kept in the treasury.
20. Learned Magistrate, in the usual course, has disposed of the matter. During pendency of the matter though applications Under Section 451 and 457 were filed, they were not considered and, on the ground that accused was not secured, the application filed by the petitioner and one more person Appaswamy was considered and were disposed of by imposing condition. Admittedly, when the property is considered to be a treasure within the definition of the word under the Act, the learned Magistrate ought not to have dealt with the same. Rather, he should have directed the parties to get a declaration from the Civil Court or he should have referred the matter to the Deputy Commissioner for disposal in accordance with law. As noted above, the Deputy Commissioner is the prescribed authority to find out whether the treasure was more than 100 years old or not and to deal with the same in accordance with law.
21. Although the petitioner's counsel submitted that the learned Magistrate has no power to impose conditions while disposing of the application filed Under Section 457, Cr.PC, it has to be reminded at this juncture, that the learned Magistrate ought not have considered this application for disposal and ordered for release either subject to conditions or otherwise as he has no power since the property has to be treated as a treasure as per the definition under the Act As such, the impugned order passed by the learned Magistrate itself is illegal. Though the petitioner - Uma did not challenge the said order except for release of the diamond stones, when this petition is being considered by this Court Under Section 482, Cr.PC and when an order has been passed illegally by the learned Magistrate, this Court exercising the inherent power suo motu can very well examine and pass appropriate orders. Even otherwise, although belatedly the prosecution approached this Court by filing a petition stating that no opportunity was given to the State at the time of disposal of the application, as per the Act, it is for the Deputy Commissioner to deal with the matter in accordance with law. However, accused Raju may not be entitled for any share or right as the finder since charge sheet was filed for having violated the provisions of the Act i.e., Section 18 of the Act in disposing of the treasure illegally and in not informing and depositing the same with the Deputy Commissioner as per Section 3 of the Act.
22. In so far as the inherent power of the trial court is concerned, it becomes redundant in this context and so far as relaxation of condition is concerned, it is a matter of interpretation whether the trial court would relax the condition. Of course in a catena of decisions, it is held that the inherent power has to be exercised by the High Court only Under Section 482, Cr.PC. Although the Andhra Pradesh High Court, in the decision cited supra, has held that such inherent power could be exercised by the sub-ordinate courts, the same is in a different context. In that view of the matter, the application for modification of the condition has been rightly rejected by the Magistrate. However, the very order of the Magistrate in releasing the property subject to condition is erroneous as he has no jurisdiction in view of the provisions of the Act Chapter II (Section 3 to 8) and Chapter III (Section 9 to 15) deals with the power and duties of the Deputy Commissioner regarding notice, enquiry, declaration regarding treasure and disposal of the treasure respectively.
23. For the foregoing reasons, Crl.P.640/2006 is dismissed and Crl.P. 2964/2006 filed by the State is allowed. The order of the Chief Metropolitan Magistrate in releasing the diamond stones in favour of petitioner - Uma is set aside and the matter is referred to the Deputy Commissioner. The concerned Deputy Commissioner shall deal with the matter in accordance with law in terms of Chapters II & III of the Karnataka Treasure Trove Act, 1962. (sic)