Madras High Court
A.Raja vs State By on 16 March, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.03.2018 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CRL.R.C.No.237 of 2018 A.Raja .. Petitioner Vs. State by The Inspector of Police, S1, St. Thomas Mount Police Station, Chennai. .. Respondent Prayer: Criminal Revision Case filed under Section 397 read with 401 of Cr.P.C., against the Order passed in Crl.M.P.No.2581 of 2013 in C.C.No.235 of 2013 dated 23.07.2013 on the file of the Judicial Magistrate, Alandur. For Petitioner : Mr.S.Ambigapathi For Respondent : Mr.B.Arulmozhimaran Government Advocate (Crl.Side) O R D E R
The defacto complainant is the criminal revision petitioner before this Court, challenging the order in Crl.M.P.No.2581 of 2013 in C.C.No.235 of 2013 dated 23.07.2013, on the file of the learned Judicial Magistrate, Alandur with further direction to the respondent to return the 100 sovereigns of gold jewels listed in the petition in Crl.M.P.No.2581 of 2013.
2.It is the case of the petitioner is that while he was travelling in a bus and getting down at Kathipara Junction at Chennai, he found that his gold jewels of 100 sovereigns and cash of Rs.60,000/- were committed theft in the bus and hence he has given a complaint on 22.05.2011.
3.On receipt of the complaint, a case has been registered by J-3 Guindy Police Station in Crime No.1291 of 2011 for the offence under Section 379 of IPC and due to want of jurisdiction, the F.I.R. was transferred to the respondent/Inspector of Police, S1-St.Thomas Mount Police Station, which was re-registered in Crime No.496 of 2011 for the same offence and was investigated into.
4.After the investigation conducted by the respondent Inspector of Police, S1-St.Thomas Mount Police Station, one Thirupathi was arrested and on his confession, the jewels were seized from Muthoot Finance, Thudialur Branch, Coimbatore under due seizure mahazar. Based on the identification by the defacto complainant about the jewels and the same was produced before the learned Judicial Magistrate Court under Form-95.
5.Thereafter, the petitioner has filed a Crl.M.P.No.2581 of 2013 by mentioning all the 100 sovereigns of gold jewels and the cash of Rs.60,000/-, under Section 451 of Cr.P.C. seeking to return of the property by the petitioner, who is the defacto complainant in the case.
6.Considering his case, the learned Judicial Magistrate, Alandur, dismissing the petitioner application on 23.07.2013 on the ground that the petitioner has not given the description of the jewels seized either in F.I.R. or Section 161 statement recorded initially and also not produced the receipt to prove that the jewels produced are his jewels. Challenging the said order, the petitioner has approached this Court on earlier occasion and filed the Criminal Revision Case No.1094 of 2013 and this Court by order dated 11.10.2013 considered and passed the following orders:
In the result, this Criminal Revision is allowed by setting aside the order dated 23.7.2013 made in Crl.M.P.No.2581 of 2013 on the file of the Judicial Magistrate, Alandur and the Judicial Magistrate, alandur is directed to return the jewels to the petitioner, subject to the following conditions:
(i)the gold jewels, which are identified and do tally with the description of the jewels as found in the photographs enclosed in the additional typed set of papers II dated 17.9.2013, shall be returned to the petitioner after weighing and the rest of the jewels shall be kept in safety locker, after duly weighed, be taken photographs and prepared panchanama and signed by two sureties as witnesses.
(ii)the petitioner shall furnish surety for Rs.20,00,000/- (Rupees Twenty Lakhs only) with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate, Alandur.
(iii)the trial court shall, at the cost of the petitioner, take photographs of the jewels and prepare panchanama and obtain signature in the same from the petitioner, accused and two witnesses, who stood as sureties.
(iv)the jewels returned to the petitioner shall not be altered or encumbered by way of pledge, sale etc. and
(v)the petitioner shall produce the jewels returned to him, before the respondent police and the trial court during trial, as and when required.
7.After the order passed in the above revision on 11.10.2013, the petitioner has approached again this Court in Crl.M.P.No.2581 of 2016 for modification of the said order, since he was unable to furnish the sureties to Rs.20 lakhs as per Clause 7(ii) and also 7(iii).
8.Since the entire properties seized from the accused was directed to put to his signature in the same to prepare the Panchanama along with the accused, petitioner and two sureties, the petitioner also contend that as per Clause 7(iii) to obtain signature from the petitioner and accused and two witnesses has to be deleted. The petitioner finds it difficult to obtain signature from the accused in the above said Panchanama. But considering his case, this Court dismissed the application by stating that the accused is regularly appeared before the trial Court, there is no difficulty in getting signature of the accused in the Panchanama and to comply with the condition of this Court order dated 11.10.2013. This Court also directed the petitioner to approach the learned Judicial Magistrate, to obtain signature of the accused in the Panchanama. This Court also made clear that the identification of material objects and obtianing signature of the accused in the Panchanama is very much essential to avoid future dispute between the parties. Therefore, this Court dismissed the application by stating that there is no necessity to modification of Clause 7(iii) of this Court order dated 11.10.2013 made in Crl.R.C.No.1094 of 2013 and directing the petitioner to approach the concerned trial Court for the above relief as per the order of this Court dated 15.07.2016.
9.When the petitioner has approached the learned Judicial Magistrate, Alandur and filed petition for return of the properties, the respondent/Police by his letter dated 12.09.2016 is filed before the learned Judicial Magistrate is as follows:
ghh;itapy; fz;l Fw;w tHf;fpy; vjphpaplkpUe;J ifg;gw;wg;gl;l tHf;fpd; brhj;Jf;fshd bkhj;jk; 845/5 fpuhk; j';f eiffis fdk; ePjpkd;wk; jf;f epge;jidfSld; thjp uh$h/ A/37, S/o. MWKfk; No.17C, ntYg[Jj;bjU. iyd;nkL. nryk;?6 vd;gthplk; xg;gilf;f ve;j Ml;nrgida[k; ,y;iy vd;gij ,jd; K:yk; bjhptpj;Jf;bfhs;fpnwd;/
10.Due to the above condition of Clause 7(iii) as per the order of this Court dated 11.10.2013, the petitioner made his attempt to get return back the jewels, but all are put in vain. Therefore, the petitioner has again approached this Court and filed a petition under Section 482 of Cr.P.C. with a request to modify the conditional order in Crl.R.C.No.1094 of 2013 dated 11.10.2013, but the said application was returned. Therefore, the petitioner again approached this Court and filed the present Criminal Revision Case, challenging the earlier order in Crl.M.P.No.2581 of 2013 dated 23.07.2013.
11.I heard Mr.S.Ambigapathi, learned counsel for the petitioner and Mr.B.Arulmozhimaran, learned Government Advocate (Criminal Side) for the respondent and perused the entire records.
12.Admittedly, earlier this petitioner has approached this Court and filed Crl.R.C.No.1094 of 2013, challenging the order made in Crl.M.P.No.2581 of 2013, this Court by order dated 11.10.2013 has passed the order by directing the trial Court to return the above jewels on condition imposed in Para-7(i) to (v).
13.Admittedly, the petitioner has approached this Court for modification of the condition in Para-7(iii) since he could not able to obtain the signature of the accused, which was also dismissed by this Court dated 15.07.2016. Even, after passing the order dated 11.10.2013, the petitioner is unable to get return back the jewels. Therefore, the petitioner has approached this Court again.
14.Admittedly, the petitioner has filed again the modification petition in Crl.M.P.No.SR202 of 2017 on 02.01.2017 and mentioned before this Court, when the matter posted for maintainability on 09.11.2017, it was mentioned by the petitioner that this Court was directed to file fresh revision.
15.Admittedly, once the petitioner has challenged the order in Crl.M.P.No.2581 of 2013 by way of filing Criminal Revision in Crl.R.C.No.1094 of 2013, the 2nd revision filed by this petitioner in this Crl.R.C.No.237 of 2018 is not maintainable. But though the petitioner has filed modification petition in Crl.M.P.No.6954 of 2016, which was also dismissed on 15.07.2016. Therefore, the petitioner again approached this Court on 2nd occasion and filed the present Criminal Revision.
16.Though the petitioner availed the revision provision earlier, but on the exception, the order already imposed condition by this Court on 11.10.2013 and the modification in Crl.M.P.No.6954 of 2016 also dismissed on 15.07.2016, this Court is permitted to entertain this revision as 2nd time, challenging the order in Crl.M.P.No.2581 of 2013.
17.Admittedly, this Court by order dated 11.10.2013 directed the learned Judicial Magistrate to return the jewels to the petitioner with the 5 conditions. It is the case of the petitioner is that the condition in Para-7(iii) is totally affecting the petitioner since he could not able to obtain signature of the accused and he has also refused to sign in the Panchanama.
18.The respondent Police also by his letter dated 12.09.2016 has clearly stated that they have no objection for return the jewels of 845.5 grams to the petitioner Mr.Raja.
19.Once the respondent Police is identified and no objection for return of jewels to this petitioner, this Court feels that it is not necessary to impose the condition under Clause 7(iii) to get the signature of the accused, but on the other condition to put the signature of the accused, two witnesses particularly the petitioner's family members should sign in the Panchanama.
20.Though the petitioner seeking prayer in the revision petition that the respondent to return the 100 sovereign of gold jewels listed in the petition, but the respondent Police stated that they have no objection to return of the 845.5 gram of gold jewels.
21.On fair reading of the complaint, F.I.R., Charge sheet, it made clear that the petitioner has given a complaint saying that 100 sovereign of gold jewels and cash of Rs.60,000/- was committed theft by the accused. Thus being the case, the respondent should have return the entire 100 sovereign of gold jewels listed in the petition in Crl.M.P.No.2581 of 2013 to the petitioner.
22.In the result, this Criminal Revision is allowed by setting aside the order in Crl.M.P.No.2581 of 2013 in C.C.No.235 of 2013, dated 23.07.2013, on the file of the learned Judicial Magistrate, Alandur, with the following conditions:
(a) the learned Judicial Magistrate, Alandur, is directed to return all the 100 sovereigns of gold jewels seized from the accused Thirupathy, to the petitioner;
(b) the trial Court shall, at the cost of the petitioner, take photographs of the jewels and prepare panchanama and obtain signature in the same from the petitioner and two witnesses, who stood as sureties, particularly family members of the petitioner;
(c) the jewels returned to the petitioner shall not be altered or encumbered by way of pledge, sale etc. and;
(d) the petitioner shall produce the jewels returned to him before the respondent Police and the trial Court during trial, as and when required;
(f) the trial Court is directed to dispose of the criminal case in C.C.No.235 of 2013 within a period of four months from the date of receipt of a copy of this order. No costs.
16.03.2018 Note:Issue order copy on 20.04.2018 vs Internet:Yes/No Index:Yes/No To The Judicial Magistrate, Alandur.
M.V.MURALIDARAN, J.
vs CRL.R.C.No.237 of 2018 16.03.2018