Allahabad High Court
Brijpal vs State Of U.P. And Another on 12 January, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 35365 of 2013 Applicant :- Brijpal Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.K. Shukla,Ajay Kumar,Moeez Uddin Counsel for Opposite Party :- Govt. Advocate Hon'ble Saumitra Dayal Singh,J.
Heard Sri Moeez Uddin learned counsel for the applicant, Sri Manish Goel and Sri Ajeet Kumar Singh learned Additional Advocates General alonwith Sri A.K. Sand learned AGA-I for the State.
Present application has been filed to quash the charge sheet dated 16.11.2012 in Case Crime No. 547 of 2012 under Section 406 IPC, Police Station Kotwali Dehat, District Bulandshahr, pending in the Court of Additional Chief Judicial Magistrate-I Bulandshahr as Criminal Case No. 472 of 2013.
Briefly, it may be noted, the applicant is the Supurdgar of the property mainly paddy, rice and some furniture belonging to Kamal Malhotra accused person in Case Crime No.670 of 2009 under Section 406,420 IPC, Police Station Kotwali Dehat, District Bulandshahr arising from First Information Report lodged by one Chhavi Prakash Goel. In that, proceeding under Section 82 and 83 Cr.P.C. had arisen against the said Kamal Malhotra. Consequently, his properties namely paddy, rice and furniture were attached on 01.12.2011. It is also not in dispute that the said attached properties were given in the custody/Supurdgi of the present applicant Brijpal.
Subsequently, upon Kamal Malhotra having offered surrender and later being enlarged on bail, he had applied for release of his properties attached on 01.12.2011. This application filed on 26.4.2012 was first allowed by order dated 22.8.2012. Before the above order could be passed, Chhavi Prakash Goel (informant of Case Crime No. 670 of 2009) approached this Court by means of Criminal Misc. Writ Petition No. 5975 of 2012. It was dismissed by order dated 17.5.2012 with the following observations:-
"After hearing the learned counsel for the petitioner, learned A.G.A. and after perusing the orders impugned, this Court is of the opinion, that learned counsel for the petitioner could not point out any legal infirmity in the order which may warrant any interference by this Court in exercise of powers conferred under writ jurisdiction.
Accordingly, the prayer for quashing the orders impugned is hereby refused.
However, the present writ petition is disposed of with the liberty to the petitioner to file an appropriate application, as per law before the concerned authority for redressal of his grievances, if so advised."
Later, Chhavi Prakash Goel again approached this Court by means of Application U/S 482 No. 31803 of 2012 to challenge the order dated 22.8.2012. That application was initially entertained by order dated 25.9.2012 on the submission advanced that the property in dispute was a case property. However, vide following order dated 17.2.2014, the said application was dismissed:-
"Supplementary affidavit filed today, is taken on record.
Heard learned counsel for the applicant, Sri M.N. Pathak holding brief of Sri Dinesh Pandey for the opposite party no.2 and the learned A.G.A. for the State.
By the present application, the applicant has prayed for quashing of the order dated 22.08.2012 passed by the Additional Chief Judicial Magistrate, Court No.1, Bulandshahar by which the property attached in proceedings under Section 83 of Cr.P.C. has been released in favour of the opposite party no.2 and the application of the applicant to release the said property in his favour has been rejected.
A perusal of the record reveals that the applicant had lodged a First Information Report against the opposite party no.2, which was registered as Case Crime No.670/209/2009, under Section 406, 420 I.P.C., at P.S. Nayi Mandi Kotwali Dehat, District Bulandshahar. In reference to the above case, to secure the arrest of the accused, the property was attached in proceedings under Section 83 of Cr.P.C. After the accused had appeared before the court, he applied for release of the said property. The informant, who is the applicant herein, applied for release of the property in his own favour on ground that he is the owner of the property. By the order impugned, the learned Magistrate has rejected the application of the applicant on the ground that the property was attached for securing the presence of the accused and since the property is not a case property, therefore, the property cannot be released in favour of the applicant and as the property is subject to natural decay, it was released in favour of the accused.
The submission of the learned counsel for the applicant is that he being the owner of the property was entitled to the property and the court below committed manifest error in law by releasing the same in favour of the accused.
Be that as it may, the property was not seized as a case property but was attached for securing presence of the accused (opposite party no.2). As the accused had appeared before the court, the same has been released in favour of the accused. Whether the applicant is entitled to the property or not, for that end, the applicant can file a suit as is provided by sub-section (4) of Section 84 of Cr.P.C. The question of title to the said property, which is not a case property, cannot be adjudicated by the court of Magistrate, at this stage.
In view of the above, the application is dismissed with liberty to the applicant to seek appropriate legal remedy."
However, the matter of release of the property remained pending. Further orders continued to be passed by the learned court below to ensure release of the property first attached on 01.12.2011. In that regard, Additional Chief Judicial Magistrate-III Bulandshahr passed further order dated 06.11.2018 in Criminal Case No. 263 of 2012, State Vs. Kamal Malhotra. It provided for payment of money equal to value of the attached goods. That order was confirmed in revision by order dated 18.7.2019 passed by the Additional Sessions Judge/FTC, Court No. 2 Bulandshahr in Criminal Revision No. 438 of 2018. Challenge laid to that order by the State, in Matters Under Article 227 No. 5203 of 2021 failed upon dismissal of those proceedings vide order dated 07.10.2021. Relevant to the present dispute, it was observed by this Court as under:
"A perusal of the record shows that the informant had lodged a First Information Report against the opposite party, which was registered as Case Crime No.670/209/2009, under Sections 406 and 420 I.P.C., at P.S. Nayi Mandi Kotwali Dehat, District Bulandshahar. In reference to the above case, to secure the arrest of the accused, the property was attached in proceedings under Section 83 of Cr.P.C. After the accused had appeared before the court, he applied for release of the said property. The informant, Chhavi Prakash Goel applied for release of the property in his own favour on ground that he is the owner of the property. By the order impugned, the learned Magistrate has rejected the application of the informant on the ground that the property was attached for securing the presence of the accused -opposite party and since the property is not a case property, therefore, the property cannot be released in favour of the informant. The property was not seized as a case property but was attached for securing presence of the accused-opposite party-Kamal Malhotra. As the accused had appeared before the court, the same has to be released in favour of the accused-opposite party. By the aforesaid impugned orders, the market value of the attached property was rightly directed to be paid to the opposite party-Kamal Malhotra.
In the light of above discussion, the petition under Article 227 of Constitution of India has no force and it is hereby dismissed."
Though a review application is stated to be pending in those proceedings, there is no interim order in such proceedings.
At the same time, upon the present application being filed, Application U/ 482 Cr.P.C. No. 31803 of 2012 filed by Chhavi Prakash Goel was pending. Also, the interim order passed therein was continuing. Thus, again the submission had been advanced that the property entrusted to the present applicant was a case property. On such submission, present application was entertained and following order was passed on 04.10.2013:-
"Heard learned counsel for the applicant and learned A. G. A. for the State.
Notice on behalf of opposite party no.1 has been accepted by learned AGA. He prays for and is granted six weeks' time to file counter affidavit.
Issue notice to the opposite party no. 2 indicating therein that he may also file counter affidavit within the same period.
Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter before the appropriate Court.
Learned counsel for the applicant submitted that an order was passed by the Magistrate for releasing certain goods which were the case property of case crime no. 670/209/ 2009 in favour of one Kamal Mehrotra. The said order was assailed by one Chhavi Prakash Goyal before this Court in Application under Section 482 Cr.P.C. No. 31803 of 2012 in which an interim order was passed staying the operation of the order passed by the Magistrate. Thereafter the impugned criminal proceedings have been initiated by opposite party no.2 against the applicant who is Supurdgar of the seized goods alleging that the applicant has committed the offence under Section 406 IPC in respect of the same goods. The argument is that in view of the above the prosecution of the applicant is bad in law.
Submissions made by learned counsel for the applicants prima facie appear to be correct and the applicants have made out a case for grant of interim protection.
Until further orders of this Court, no coercive action shall be taken against the applicants in Case No.472 of 2013, State VS. Brijpal, arising out of case crime no. 547 of 2012, under Section- 406 I. P. C., pending in the Court A.C.J.M.-Ist Bulandshahar."
Pleadings have been exchanged and the matter has been heard at some length.
At the outset, learned counsel for the applicant fairly states that in view of the earlier adjudication made by this Court both at the instance of Chhavi Prakash Goel in Application U/S 482 No. 31803 of 2012 and in Matters Under Article 227 No. 5203 of 2021 (at the instance of the State), it is too late in the day to claim that the property entrusted to the applicant was a case property. It was only a property attached to secure presence of the accused person in Case Crime No. 670 of 2009 for the purposes of Section 82 and 83 Cr.P.C.
It being undisputed that Kamal Malhotra eventually appeared before the learned court below, he became entitled to release of the property attached. Therefore the ground on which the present applicant had been entertained does not exist or survive.
As to further submissions being advanced by learned counsel for the applicant that the property in question was destroyed not on account of any neglect on the part of the applicant and in fact such destruction took place within three months of the property being entrusted to the applicant which fact was communicated by him both to the State Authorities as also to opposite party No. 3, may remain a fact that may be pleaded in defence at the appropriate stage, in appropriate proceedings. The burden to lead adequate evidence to prove such fact would ever remain on the applicant.
In the context of allegation of criminal breach of trust, prima facie, ingredients of offence alleged are made out inasmuch as the applicant does not dispute the fact, he was entrusted with third party property which has been lost while in his custody. The cause of loss is not for the Court to explore or rule upon in exercise of its inherent jurisdiction under Section 482 Cr.P.C. Facts would have to be pleaded and evidence would have to be led before any conclusion less so firm conclusion may be drawn. At present prima facie ingredients of offence alleged are made out from plain reading of the F.I.R.
Application must fail and is accordingly dismissed leaving it open to the applicant to prove such facts as he may be advised in the proceedings before the learned court below. It may further remain open to the applicant to claim other statutory remedies of bail and discharge at appropriate stage, in accordance with law. If such remedies are availed, they may be dealt with on their own merits without being prejudiced by any observations made in this order.
Order Date :- 12.1.2023 Faraz