Karnataka High Court
Smt. Shanta @ Kamla W/O Kariyappa Karnal vs State Of Karnataka on 11 December, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 11TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.R.P.NO.100098 OF 2018
BETWEEN:
SMT. SHANTA @ KAMLA
W/O KARIYAPPA KARNAL,
R/AT: NO.59, 2ND CROSS,
VISWESWARANAGAR,
HUBBALLI TALUKA,
DIST: DHARWAD,
HUBBALLI-580 032.
... PETITIONER
(BY SRI.NARAYAN G. RASALKAR, ADVOCATE)
AND :
STATE OF KARNATAKA
THROUGH ITS ANTI CORRUPTION BUREAU,
NEAR KCD CIRCLE,
BEHIND GANESH TEMPLE,
DHARWAD-580001.
(REP. BY THE SPECIAL PUBLIC PROSECUTOR,
FOR THE STATE OF KARNATAKA,
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.)
... RESPONDENT
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W SECTION 401 OF CR.P.C., SEEKING TO
CALL FOR THE RECORDS OF LOWER COURT AND AFTER
HEARING THE PETITIONER AND THE STATE, MODIFY THE
ORDER OF THE III ADDL. DISTRICT AND SESSIONS JUDGE &
SPECIAL JUDGE, DHARWAD, DATED 07.09.2017 AND
PETITIONER FURTHER PRAYS THAT THIS HON'BLE COURT BE
FURTHER PLEASED TO RELEASE THE GOLD AND SILVER
ORNAMENTS, GOLD AND SILVER ARTICLES AND OTHER GOLD
AND SILVER GOODS/ARTICLES/POOJA ARTICLES/COINS/
SAREES BELONGING TO THE PETITIONER AS A STHRIDAN AS
PER ANNEXURE-XXXVI IN VIEW OF THE INDEMNITY BOND
EXECUTED AND THE SECURITY ALREADY FURNISHED AND IN
VIEW OF ANY OTHER CONDITIONS THAT BE IMPOSED BY
THIS COURT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING :
ORDER
The petitioner is the wife of accused in Crime No.3 of 2017 of ACB Police, Dharwad and being applicant No.4 in the application filed under Section 451/457 of Cr.P.C, is before this Court in this revision petition with a prayer to 3 modify the order of the III Additional District and Sessions Judge and Special Judge, Dharwad dated 07.09.2017 and further praying to release the Gold and Silver Ornaments, etc., to the applicant as stated in the application filed by her under Section 451/457 of Cr.P.C before the Court below.
3. It is the case of the petitioner that she is the wife of Sri.Kariyappa Karnal who was working as Assistant Commissioner of Commercial Taxes (Enforcement-1), Hubballi against whom the ACB Police filed a case in Crime No.3 of 2017 under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 alleging accumulation of wealth disproportionate to his income.
4. It is the further case of the petitioner that while conducting raid, the ACB police not only seized the properties belonging to the accused, but also properties belonging to the petitioner including the family gold and silver articles, pooja articles of the deceased mother of the petitioner and her movable properties and properties 4 delivered to the petitioner by legal conveyance at the hands of the petitioner duly conveyed well before her marriage with the accused.
5. It is the contention of the petitioner that the court below after hearing the matter, though, partly allowed her application under Section 451/457 of Cr.P.C. and was pleased to defreeze the Bank accounts for operation and directed to hand over cash of Rs.1,35,000/- subject to conditions, however, did not make any order for the return of petitioner's cash, gold and silver articles, religious pooja silver and gold articles, gold and silver ornaments etc., which is unsustainable.
6. The learned counsel for the petitioner would submit that the return of the aforesaid articles are required for attending religious ceremonies and performing the marriages of two sons of the petitioner without which the marriage cannot be performed as per the family tradition. The learned counsel further submits that no damage will be caused to the prosecution if the articles are released and 5 the petitioner is willing to undertake and furnish indemnity bond to the value of gold and silver articles now sought for and any condition may be imposed by this Court.
7. The learned counsel placed reliance on the judgment of this Court in the case of Gonugunta Brahmaiah and Another v. State by CBI Police, ACB, Bangalore (Crl.R.P.No.2281/2013 c/w. Crl.R.P.No. 2280/2013) and submits that in the said case in an identical situation this Hon'ble Court allowed the application filed under Section 451 and 457 of Cr.P.C. subject to conditions.
8. On the other hand, the learned Special Counsel appearing for the respondent vehemently opposed the prayer made by the petitioner and contended that the accused by misusing the position as a public servant has acquired assets disproportionate to his known source of income which is about 390% and the investigation has revealed that the accused has acquired the said property illegally in his own name as well as in the names of his 6 family members. He submits that there is not even an iota of evidence which speaks that gold and silver ornaments were acquired or they are the stridhan property of the petitioner. He submits that the seized articles are in safe custody and if they are released there are chances of changing the nature of property and disposing the property by the petitioner is also not ruled out. Hence, he submits that there is no necessity to modify the order passed by the Court below and accordingly seeks to dismiss the petition.
9. That the petitioner is the wife of the accused and she filed an application under Section 451 and 457 of Cr.P.C. seeking custody of various gold ornaments, silver articles, cash and also for de-freezing bank accounts etc. On the said application filed by the applicants the Court below passed the following :
ORDER "In the result, the applications No.1 to 4 filed by applicants No.1 to 4 are allowed in part on conditions :
i. The applicants No.1 to 4 are entitled for the 7 interim custody of a cash of Rs.1,35,000/- and they are also entitled for de-freezing of their respective bank accounts standing in their names in different banks as claimed on a condition, that they shall not dispute the balance in their respective accounts as on the date of FIR i.e. 27.02.2017.
ii. The applicant No.1/accused shall produce the copies of challans before the IO for having deposited the cash of Rs.1,35,000/- in the name of Government of Karnataka within one week from the date of such deposit in Treasury.
iii. The applicant No.1 shall execute an indemnity bond for a sum of Rs.15 lakhs with one surety bond and the applicants No.2 to 4 shall execute an I.B. for Rs.10 lakhs each with one S.B. for likesum subject to their undertaking that they are ready to pay the amount, which was in their accounts as on the date of direction by IO to freeze the accounts, as and when required or to hold them subject to such orders as this Court may pass order regarding the disposal of the same at final stage.8
iv. The applicants shall produce the bank account extracts to show that what was the amount in their account as on the date of FIR.
v. The applicants shall not cause any damage to the entries in their bank accounts which are already affected in the past, and are relevant during the check period. Intimate this order to I.O."
10. It was observed by the Court below that the applicants are not entitled for interim custody of gold and silver articles, as claimed, on the ground that if the said articles which are huge in number are ordered to be given to the applicants by way of interim custody there is every chance of changing their nature and under these circumstances there will be destruction of evidence. It is the contention of the learned counsel for the petitioner that the law laid down by this Court in Gonugunta Brahmaiah and Another v. State by CBI Police, ACB, Bangalore (supra) has not been considered by the Court below while disposing of the application filed by the applicants for 9 release of the properties. He submitted that this Hon'ble Court after following the dictum laid down by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in (2002)10 SCC 283 has held that dictum of the decision has to be applied and properties have to be released.
11. In the aforementioned case, this Hon'ble Court has observed that even if the articles are released to the accused, prosecution will not be impacted adversely because seizure is on record and everything is documented. Such documentary evidence is receivable without even proof as envisaged under Section 294 of Cr.P.C. and prosecution can certainly resort to this provision and obtain consent of the accused to mark it in evidence. That will solve the prosecution problem. Even if the accused is found guilty, he will be liable to suffer sentence to forfeit the property or the amount being the value of the articles in excess of the known source of income.
10
12. The perusal of the impugned order passed by the Court below does not anywhere reflect the consideration of any of the observations as noted in the aforesaid judgment of this Court. Hence, it may be necessary for the Court below to consider afresh the application filed by the applicants with regard to the release of articles mentioned therein, in the light of the observation made in the above judgment.
13. However, each case depends on the facts and circumstances of that particular case and the Court below has to proceed in accordance with law while considering the application afresh. It is also relevant to mention that the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat (supra) has observed that there is need for expeditious and judicious exercise of power under Section 451 of Cr.P.C. which would serve various purposes.
14. Accordingly, I deem it appropriate to direct the Court below to consider the application afresh with regard 11 to the release of the remaining properties mentioned in the application and pass orders in accordance with law. It is made clear that the order already passed with regard to the release of other properties shall remain.
With the aforesaid observations, this petition is disposed of.
Sd/-
JUDGE Ckk/hnm