Madras High Court
S.Arunkumar vs The State on 11 January, 2016
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.01.2016 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.R.C.(MD).No.6 of 2016 S.Arunkumar, Son of Singadurai, Area Head, represented by its Manappuram Finance Limited, having its Registered Office at Manappuram House, Valapad Post, Thirssur District, Kerala State, having its Branch Office at 11/01/203, R.S.Building, first Floor, Batalagundu, Dindigul District. : Petitioner/Petitioner/Accused Vs. The state, through The Inspector of Police, Batlagundu Police Station, Batlagundu, Dindigul District. (In Crime No.375 of 2015 :Respondent/Respondent/Complainant PRAYER: Criminal Revision Case is filed under Section 397 r/w 401 of Criminal Procedure Code, Praying this Court to call for the records relating to the order dated 16.12.2015 made in Cr.M.P.No.10363 of 2015 in Crime No.375 of 2015 on the file of Judicial Magistrate, Nilakkottai filed by the Petitioner under Section 451 of Cr.P.C and to set aside the same insofar as condition No.2,3 and 4 are concerned as illegal and allow the Civil Revision Petition as prayed for. !For Petitioner : Mr.Ajmal Khan Senior Counsel for M/s.Ajmal Associates ^For Respondent : Mr.P.Kandasamy Govt.Advocate (crl.side) :ORDER
The Revision Petitioner/Petitioner has preferred the instant Criminal Revision Petition before this Court as against the order, dated 16.12.2015 in Cr.M.P.No.10363 of 2015(filed by the Revision Petitioner/Petitioner under Section 451 of Cr.P.C.) in Crime No.375 of 2015, passed by the learned Judicial Magistrate, Nilakkottai.
2.The Learned Judicial Magistrate, Nilakkottai while passing the impugned order in Cr.M.P.No.10363 of 2015(filed by the Revision Petitioner/Petitioner) on 16.12.2015, had inter-alia observed as follows:
Considering the both side submission and Section, Case-Laws cited above, this Court is inclined to return the amount and jewels to the Petitioner Mr.Arunkumar (Area Manager) Represented by Manapuram finance, and upon the following condition:
Condition:
1)The Petitioner shall execute Bond for Rs.1,80,000/-
2)Petitioner's Bank should execute a bond for Rs.1,00,00,0000/-(1 crore) alone with sureties(property) executing bond and the same amount.
3)One of the employee of the Petitioner's Bank shall execute bond for Rs.10,00,000/-(Ten lakh) with 1 surety.
4)The property should not dispense(to the customer) without the permission of Court.
5)The Petitioner shall take photos of the property in each item no.(item no should be visible) and produce the same with C.D.''
3.The Learned Counsel for the Revision Petitioner/Petitioner urges before this Court that the trial Court while passing the impugned order had not borne in mind that in the present case, the seized properties are in the nature of gold ornaments and that photographs of the same along with other jewels is enough for the Investigating Agency to complete the Investigation.
4.The Learned Senior Counsel appearing for the Revision Petitioner/Petitioner submits that the 'Manappuram Finance' is a registered legal entity and in law, a separate individual and moreover, once the jewels are returned to the Manappuram Finance, its obligatory on the part of the said Finance Company to return the gold jewels to the respective owners in the event of discharge of liability. Therefore, in the impugned order, the condition imposed by the trial Court is a impracticable and onerous one. The Learned Senior Counsel for the Petitioner contends that there exists two conditions for the release of property under Section 457 of Cr.P.C namely, (1) property must be seized by the Police(2) property must not be required to produce before the Court.
5.Further, the Learned Senior Counsel for the Revision Petitioner/Petitioner cites a decision of the Honourable Supreme Court in Ramprakash .vs. State of Haryana reported in AIR 78 SC 1282, whereby and where-under, it is held that ' release of property' under Section 457 of Cr.P.C. is of paramount consideration in the interest of justice.
6.Lastly, it is the stand of the Petitioner that in the event of gold ornaments seized by the Police are not returned to the Petitioner/Manappuram Finance, the Petitioner as well as the general public would be adversely affected. Therefore a specific plea is taken on behalf of the Petitioner that the physical characteristics of the properties in question can be recorded by the trial Court and in this regard, photographs from different angles also to be taken. If that is done, then alteration of the physical characteristics of the jewels would not adversely affect the investigation.
7.The learned Senior Counsel for the Petitioner cites the judgement of High Court of Delhi in Crl.M.C.No.4485 of 2013 and Crl.M.A.No.16055 of 2013 reported in MANU/de/2131/2014(Equivalent citation : 2015 II AD(Delhi)594, 214(2014) DLT 646, whereby and where-under, at Para 59 to 64, it is observed as follows:
59.The valuable articles seized by the Police may be released to the person, who, in the opinion of the Court, is lawfully entitled to claim such as the complaint at whose house theft, robbery or Dacoity has taken place, after preparing detailed panchanama of such articles; taking photographs of such articles and a security bond.
60.The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Wherever necessary, the Court may get the jewellery articles valued from a government approved valuer.
''61.The actual production of the valuable articles during the trial should not be insisted upon and the photographs along with the panchanama should suffice for the purposes of evidence.
62.Where such articles are not handed over either to the complainant or to the person from whom such articles were seized or to its claimant, then the Court may direct that such articles be kept in a locker.
63.If required, the Court may direct that such articles be handed back to the Investigating Officer for further investigation and identification. However, in no circumstance, the Investigating Officer should keep such articles in custody for a longer period for the purposes of investigation and identification.
64.If articles are required to be kept in the police custody, the SHO shall, after preparing proper panchanama, keep such articles in a locker.''
8.Besides the above, this Court refers to the decision of B.LALITHCHAND NADAR v. STATE AND OTHER reported in 1990(2) MWN (CRL.) 23, wherein and whereby,it is held that the order under Section 451 of Cr.P.C. is only for a temporary arrangement to provide custody with a proper person as the Court thinks fit, even if such person is the owner of the property, his possession or custody is only as representative of the Court and not in his independent right.
9.One cannot brush aside the very vital fact that an order passed under Section 451 of Cr.P.C is only transitory in nature and the same will have live force till disposal of the main case itself in the considered opinion of this Court.
To be at succinctly under Section 451 and 452 of Cr.P.C, title to property is not decided by a Court of Law. Indeed, an enquiry for disposal of property need not be a detailed/elaborate one. Even the statements recorded by the Police under Section 161 of Cr.P.C or under Section 25 of the Indian Evidence Act 1872 may be looked into by a Court of Law by arriving at a decision in regard to the issue of possession of a property involved in a pending case. In reality, aspect of possession and the right of possession alone would be considered in usual/ordinary course. However, ownership of title issues are purely in the realm of appropriate civil Court decision, in the considered opinion of this Court.
10.It is to be pointed out that the power under Section 451 of Cr.P.C should be exercised expeditiously and judiciously during the time of trial keeping in mind(1) the owner of articles would not suffer because of its remaining unused or by its misappropriation(2) the Court or Police would not require to keep the articles in safe custody and (3) if proper Zimanama before handing over possession of articles is prepared.
11.In the instant case on hand, it comes to be known that by an act of robbery, on 24.09.2015, the accused had removed from the safe of claimant/Petitioner's institution at Batlagundu Branch 11 packets of gold jewelleries weighing 13.957 Kgs on the security of which loans had been advanced by the Petitioner/institution. In addition to that, a sum of Rs.16,54,461/- in cash was also robbed from the custody of the Petitioner/Claimants Branch. The Batlagundu Police registered a case in Cr.No.375 of 2015 in respect of an offence under Sections 395, 397 of IPC @ 395, 397, 406 and 120(b) of IPC.
12.It is further represented that the Police had recovered the gold jewels through accused and so far gold jewellery weighing 8015 grams and a cash of Rs.11,72,950/- are in the custody of the Respondent/Police. The Petitioner/Finance Company/institution claims the gold jewels and the amount .The trial Court while passing orders in Cr.M.P.No. 10363 of 2015(filed by the Revision Petitioner/Finance Company under Section 451 and 457 of Cr.P.C) had ordered for the return of the amount and jewels to the Petitioner/institution Area Manager(Mr.Arun Kumar, represented by the Manappuram Finance Company), subject to the conditions being imposed therein.
13.It is to be pointed out that where gold ornaments and other valuable articles snatched by the accused from the Complainant are recovered from the possession of the accused and when the Complainant prays for return of such articles; such seized articles shall be returned to the Complainant after taking security and bond so as to present evidence on being altered or destroyed as per decision in Yaswant Borwal .vs. State of Orissa reported in 2004 CrlJ at Page 2278, 2279 and 2780.
14.It is to be relevantly pointed out that a Court of Law can take photographs of such valuable articles and the same being attested or counter- signed by the Complainant, Accused as well as by the person to whom the custody is handed over. Moreover, the possession of valuable articles like silver or gold ornaments should be restored to the individual from whom it was taken by a criminal act of theft. That apart, even a bona-fide purchaser of such stolen property cannot acquire any title to it as opined by this Court.
15.As far as the present case is concerned, this Court has perused the impugned order, dated 16.12.2015, passed by the trial Court in Cr.M.P.No.10363 of 2015 in Cr.No.375 of 2015 and pertinently points out that a specific plea is taken on behalf of the Petitioner that the condition Nos. 1 to 5 imposed by the trial Court are onerous, burdensome and harsh one. As a matter of fact, the trial Court had not borne in mind that the Petitioner/Finance Company is registered under the Companies Act(as NBFC) and also that insofar as the jewels were pledged with them, the Petitioner in law becomes 'Bailor'' and the persons, who pledged their jewels become ''Bailee''. When that be the factual situation, when admittedly the gold jewellery weighing 8015 gms and a sum of Rs.11,72,850/- which were recovered from the accused are in the custody of the Respondent/Complainant and since a request was made on behalf of the Petitioner before the trial Court directing the Complainant/Police to produce the case property before it and release the gold jewelleries seized in the case of the Petitioner/claimant's custody, this Court on a careful consideration of the respective contentions and also taking note of the fact that they(properties in question namely jewellery and cash) were stolen from the Petitioner/Finance Company and later, they have been recovered along with cash by the Police, at this stage, this Court is of the considered view that the Petitioner/Finance Company is legitimately entitled to stake its rightful claim for interim custody of the jewels and cash in question and in this regard, the trial Court is to bear in mind only the aspect of possession and right of possession alone. viewed in that perspective, the impugned order in Cr.M.P.No.10363 of 2015, dated 16.12.2015 passed by the trial Court in imposing condition Nos. 1 to 5 appears to be harsh, burden-some and onerous from the point of view of the Petitioner/Revision Petitioner/Accused. As such, this Court to prevent aberration of justice and to promote substantial cause of justice sets aside the same in toto and allows the Criminal Revision Petition.
16.In the result, the Criminal Revision Petition is allowed. The impugned order, dated 16.12.2015 in Cr.M.P.No.10363 of 2015 in Crime No.375 of 2015 passed by the trial Court is hereby set aside for the reasons assigned in this Revision. The Learned Judicial Magistrate, Nilakkottai is directed to restore Cr.M.P.No.10363 of 2015 in Crime No.375 of 2015, on its file and to pass a reasoned, speaking order by mentioning the outline of process of reasoning in a qualitative and quantitative terms in a dispassionate matter keeping in mind the principles laid down under Sections 451 and 457 of Cr.P.C, in the manner known to Law and in accordance with Law. The trial Court is directed to pass afresh orders in Cr.M.P.No.10363 of 2015 in Crime No.375 of 2015 within a period of two weeks from the date of receipt of a copy of this order. The trial Court shall bear in mind that at the time of passing afresh orders in Cr.M.P.No.10363 of 2015 it is to be open to it to impose necessary reasonable, legitimate and workable terms/conditions as it deems fit based on the facts and circumstances of the case which floats on the surface(while ordering the return of property in question) and that too, untrammelled and un-influenced with any of the observations made by this Court in this Revision.
To
1.The Judicial Magistrate, Nilakkottai.
2.The Inspector of Police, Batlagundu Police Station, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..