Madhya Pradesh High Court
P.K. Rai vs The State Of Madhya Pradesh on 20 January, 2016
CRA-2475-2015
(P.K. RAI Vs THE STATE OF MADHYA PRADESH)
20-01-2016
Shri Amit Verma, learned counsel for the appellant.
Shri Ajay Shukla, G.A for the respondent/State.
Shri Satish Chaturvedi, learned counsel for the respondent/CBI.
This appeal has been filed by the appellant under section 454 of the Cr.P.C challenging the order dated 12/08/2015 passed by the Special Judge (Prevention of Corruption Act) Bhopal in M.JC No. 1194/2015 rejecting the application filed by the appellant before the said court under section 452 of the Cr.P.C.
Appellant was prosecuted for the offences under section 13(1)(e), read with section 13(2) of the Prevention of Corruption Act before the Special Judge (Prevention of Corruption Act) Bhopal in Special Case No. 08/2004. In the process of his prosecution it was found that he is in possession of the assets beyond his known source of income. Certain valuable documents, securities and ornaments belonging to his wife Smt. Saroj Rai were also seized by the police authorities. During the course of the investigation and prosecution ornaments were also seized from the joint bank locker bearing No.4 Allahabad Bank, Branch at Arera Colony, Bhopal vide seizure memo. However by detailed judgment dated 05/03/2013 pronounced by trial court the appellant has been convicted for the aforesaid offences and has been convicted and sentenced to undergo 2 years R.I and fine of Rs.5 lacs with default stipulations. Against his conviction Criminal Appeal No. 749/2013 (P.K. Rai Vs. State of M.P) has been filed by the appellant and same is pending consideration before this Court. However by referring to the findings recorded by the trial court in its judgment dated 05/03/2013 with regard to the assets of his wife Smt. Saroj Rai, which is said to have been raised by her as âStridhanâ from her family during the time of marriage.
Learned counsel referring to para 97 to 103 of the judgment in question, pointed out that once the trial court has found that these ornaments seized are not assets of the accused/appellant Shri P.K. Rai, then they do not form part of the assets which are found to be disproportionate to the known source of income of appellant, hence power under section 452 of the Cr.P.C ought to have been exercised and seized property be released. The property sought to be released are :-
1. Key No. 24 of joint locker no.4 in Allahabad Bank, Branch at E-2/60, Areara Colony, Bhopal and seeking permission to return the ornaments contained in the aforesaid locker;
2. To permit operation of Joint Locker No.4
3. To restore the operation of Savings Bank Account No. 310, 3081 and 8599 and joint locker No.4 of the Allahabad Bank at E-2/60 Arear Colony, Bhopal.
Learned counsel for the respondent on notice pointed out that appeal against his conviction is pending before this Court and in view of the law laid down in the case of N. Naveen Kumar & ors Vs. State of Andhra Pradesh reported in (2008)3 SCC (Cri) 880 and prayed that application cannot be allowed.
After hearing learned counsel for the parties and their rival contentions and fact that Cr.A No. 749/2013 filed by the appellant-P.K. Rai against his conviction and the interlocutory application IA No. 5765/2014 was filed seeking the same relief as prayed in this application. After going through the judgment dated 05/03/2013 particularly para 139 of the aforesaid judgment and the order dated 02/07/2014 in which following observation are made by this Court:-
â On perusing the IA, it appears to be filed in the light of para 139 of the impugned judgment, so also the findings which have been given by the trial court in other parts of the impugned judgment holding such property is not found to be a part of the disproportionate property in the impugned case.
In course of arguments on the aforesaid IA, on asking question from learned standing counsel of the respondent Shri Adhikari whether such part of the impugned judgment for which the direction for discharge of Supurdnama and returning of keys of the vehicles and lockers along with pass books and so also the direction given with respect of some seized shares and debentures, whether any appeal is preferred at the instance of the respondent, on which he submits that no such appeal has been preferred against such part of the impugned judgment at the instance of the State Authority.
In the aforesaid premises, such part of the impugned judgment has got its finality between the parties, because such part is neither challenged by the respondent herein nor by the appellant in the present appeal as such direction was given in favour of the appellant.
Looking to the aforesaid, on examining the matter, it appears that this appeal is preferred by the appellant against his conviction and sentence based on the properties found by the trial court to be disproportionate and not against the aforesaid released properties and in such premises, such part of the impugned judgment is not under dispute before this Court.
In such premises, on asking from the appellant's counsel whether before approaching this Court, has he approached before the trial court for appropriate direction, with respect of question raised in the IA, he fairly submits that no such application has been filed before the trial court and seeks permission to withdraw this IA as not pressed with liberty to file an appropriate application in this regard before the trial court keeping in the provisions of section 452 and onwards of the Code of Criminal Procedure, so also some other provisions available to the appellant for returning the above mentioned properties and papers, with a further liberty that subject to outcome of such application in the trial court to file an appropriate application in this appeal or by way of a separate appeal under section 454 of Code of Criminal Procedure.â In pursuant to the aforesaid observation and directions issued the application was filed before the trial court and now by the impugned order Annexure P-1 dated 12/08/2015 the application is rejected. Having heard learned counsel for the parties and on perusal of the material available on record i.e para 139 of the judgment dated 05/03/2013, we find that âStridhanâ is the property of the wife which did not form part of the disproportionate property of the appellant and therefore seeking direction for release of those properties IA was filed in the appeal, however IA was disposed of by order dated 02/07/2014 in Cr.A No. 749/2013 as referred to herein above. It is a fact that the respondents have not filed that any appeal against the acquittal in so far as portion to the property in question. That being so merely because against conviction the appellant preferred Cr.A No. 749/2013, it cannot be a ground for denying return of the property in question belong to his wife to the appellant particularly when the ingredients necessary for release of property as contemplated under section 452 of the Cr.PC are available. The judgment rendered in the case of N. Naveen Kumar (supra) will not apply in the facts of the present case for the simple reason that as in that case the property involved was the confiscation property and not a independent property like âStridhanâ which had no connection with the property form the one involved in commission of the offence. The said case the property sought for return was the one under confiscation, which formed part of the case.
In view of the aforesaid, this appeal is filed under section 454 of the Cr.P.C against the order dated 12/08/2015 passed in MJC No. 1194/2015 is allowed. The property in question in the aforesaid proceedings are returned back to the appellant on completing the requisite formalities as required under the law. Accordingly, the appeal stands disposed of.
(RAJENDRA MENON) (SUSHIL KUMAR PALO) JUDGE JUDGE