Karnataka High Court
Mr. P Dinesh Shetty vs The State-Through The Inspector Of ... on 30 August, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL REVISION PETITION No.636 OF 2018
BETWEEN
1. Mr. P.Dinesh Shetty,
Aged about 42 years,
S/o. Vishwanath Shetty,
R/at Patla House,
Karopady Village & Post,
Bantwal Taluk-574280.
2. Mr. Vinod Kumar Shetty,
Aged about 31 years,
S/o. Raghunath Shetty,
R/at Patla House,
Karopady Village & Post,
Bantwal Taluk-574280.
3. Mr. Pradeep Shetty,
Aged about 33 years,
S/o. Sanjeeva Shetty,
R/at Palige House,
Kudpalthdka Post,
Karopady Village,
Bantwal Taluk-574279.
...Petitioners
(By Sri. P.P.Hedge, Advocate)
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AND
The State -through the
Inspector of Police,
Vittal Police Station,
Bantwal Taluk
Represented by The
Learned State Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001.
...Respondent
(By Sri. Nasrulla Khan, HCGP)
This Criminal Revision Petition is filed under Section
397 read with 401 of Cr.P.C. praying to set aside the order
dated 16.03.2018 passed by the IV Additional District and
Sessions Judge, D.K., Mangaluru in S.C.No.212/2017 and
allow the application filed by the petitioners and under
Sections 451 & 457 of Cr.P.C. and etc.
This Criminal Revision Petition coming on for
admission this day, the court made the following:
ORDER
The IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, by her order dated 16.3.2018 dismissed the petitioners' application filed under Section 451 and 457 CPC in S.C.No.212/2017. This order has been challenged under Section 397 Cr.P.C. 3
2. I have heard the arguments of learned counsel for petitiones' and the learned High Court Government Pleader.
3. Alleging involvement of the petitioners and other accused in the killing of Abdul Jalil, an FIR was initially registered against them in Crime No.83/2017 for the offences punishable under Sections 448, 302 and 506 read with Section 34 IPC. While investigation was in progress, the investigator sought issuance of search warrant for searching the houses of the petitioners, and pursuant to obtaining the same, he searched their houses and seized many items such as mobile handsets, laptops, bank accounts etc., by drawing up of mahazars. The seized items were subjected to P.F. with No. 93 to 97/2017.
4. After this search, the investigator made a requisition to Magistrate for inclusion of offences under Section 37 and 39 of Money Lenders Act and Section 3 and 4 of Karnataka Prohibition of Charging Exorbitant Interest 4 Act. The petitioners sought return of the seized articles by filing an application and it was dismissed.
5. The argument put forward by the learned counsel for petitioners is that the seized articles are in no way connected with the allegations leveled against the petitioners. Motive attributed to petitioners at the time of registration of FIR was that they proclaiming themselves to be protectors of cows and suspecting the deceased to be a cow slaughter, resorted to killing him and investigation was also held in that direction. But, a different reason for incident was sought to be given and therefore search was made. The petitioners are doing money lending business; linking their business to the incident of murder as alleged, and thereby obstructing their business by seizing business related articles was illegal. The petitioners are entitled to their possession; they are already produce them before the court during trial. The court below ought to have kept in mind the salient principles governing the provisions of Section 451 and 457 Cr.P.C. He refers to judgment of 5 Supreme Court in Sunderbhai Ambalal Desai Vs. C.M.Mudaliar [(2002) 10 SCC 283]. He argued for allowing of revision petition.
6. The High Court Government Pleader argued that the petitioners are involved in money lending business. They were charging exorbitant rate of interest. This was brought to the notice of the deceased by the villagers. When the deceased questioned the petitioners regarding the interest they were charging, he was murdered. This fact came to knowledge of investigator after filing of charge sheet therefore further investigation under Section 173(8) Cr.P.C. is going on. Seized articles, which provide proof during further investigation, cannot be returned as the petitioners may destroy them.
7. In the light of arguments of the learned counsel, if the reasons assigned by the Sessions Court are seen, it can very well be said that it has not exercised its jurisdiction. Nothing prevents an investigator to hold further investigation under Section 173(8) Cr.P.C. if the 6 Court permits. Pursuant to search warrant, the investigator searched the houses or places of business of the petitioners and seized many articles as mentioned in a separate list. But after the search for how long the seized articles can be retained? Search was made on 13.05.2017 and the application under Sections 451 and 457 Cr.P.C. was filed before the court on 16.01.2018. The public prosecutor also filed statement of objections to this application contending mainly that the seized articles are valuable, that they are not subject to speedy and natural decay, that if they are returned to the applicants, material evidence would be effaced from record and that there is no possibility of getting back the documents at the time of trial. The Sessions Court should have examined the tenability of these objections keeping in mind the long time gap between the date of seizure and the date of application. Nothing prevents the court from ascertaining from the prosecution as to the progress made in the investigation after seizure. If the investigation or further investigation is completed, the seized articles can be 7 returned. If investigation is pending, the court can further ascertain whether the seized articles are really necessary for completing the investigation. If investigation is still incomplete owing to some other reasons; and for completion of investigation the seized articles are not necessary or required, the court can return them to the applicant. It is to be borne in mind that application for seeking return of articles are usually made if they are valuables or required for other purpose. Here in this case the petitioners are said to be licensed financiers. Whatever may be the allegations against the petitioners, could the articles be retained without returning them to the petitioners? The reason why power under Section 451 Cr.P.C. should be exercised expeditiously is clearly setout by the Supreme Court in the case of Sunderbhai Ambalal Desai (supra) as below:
"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as-8
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;
(3) if the property is subject to speedy and natural decay, to dispose of the same.
6. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the mudammal articles in safe custody.
7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
(1) Owner of the article would not suffer because of its remaining unused or by its misappropriation.
(2) Court or the police would not be required to keep the article in safe custody;9
(3) If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and (4) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."
8. In the same judgment reference is made to another case, Basavva kom Dyamangouda Patil Vs. State of Mysore [(1977) 4 SCC 358], where the purpose of returning the seized property is lucidly explained. This being the position, I, therefore, come to conclusion that the Sessions Judge has not exercised its power under Section 451 Cr.P.C. The business interest of petitioners should not suffer. If they are really making use of money that they earn for illegal purposes, they can be punished according to law provided prosecution proves 10 it case; but retention of property should not be like a punishment. Hence, this revision petition is allowed. The impugned order is set aside, the application filed by petitioner under Section 451 & Section 457 Cr.P.C. is allowed. The articles or properties subjected to PF 93 to 97/2017 in Crime No.83/2017 of Vitla Police Station shall be returned to the petitioners by retaining their copies. The Session Judge or the concerned court is directed to impose such conditions as it deems fit in the facts and circumstances, in the light of principles laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai (supra) while returning the seized articles to the petitioners. The concerned Court shall complete this process of returning the seized articles to the petitioners within a period of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE sd