Karnataka High Court
Manikandan Kuttath vs State Of Karnataka on 4 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 6233 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6233 OF 2022
BETWEEN:
1. MANIKANDAN KUTTATH,
S/O LATE GOPAL NAYAR,
AGED ABOUT 38 YEARS,
R/AT FLAT NO.09, 3RD FLOOR,
GURUDEV LAND MARK,
SHIRUR PARK, VIDHYANAGAR,
HUBBALLI - 580 031.
...PETITIONER
(BY SRI. SANDESH J CHOUTA, SENIOR COUNSEL FOR
SRI.SUNIL KUMAR S.,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY SUBRAMANYA NAGAR P.S.,
Digitally signed by (NOW INVESTIGATION BY JALAHALLI P.S.),
PADMAVATHI B K
Location: HIGH
(REPT BY STATE PUBLIC PROSECUTOR,
COURT OF HIGH COURT OF KARNATAKA,
KARNATAKA
HIGH COURT BUILDING,
BANGALORE - 560 001).
2. REVATHY DAYANAND S.,
W/O G DAYANAND,
AGED ABOUT 36 YEARS,
R/AT NO.34, RAILWAY STATION,
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CRL.P No. 6233 of 2022
RAILWAY PARALLEL ROAD,
YESHWANTHPURA,
BENGALURU - 560 022.
...RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1)
THIS CRL.P. IS FILED U/S.482 OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 30.06.2022 PASSED BY THE
HONOURABLE XXX ADDL.C.M.M., BENGALURU IN
CR.NO.8/2022 REGISTERED BY THE SUBRAMANYA NAGAR
POLICE STATION (NOW INVESTIGATION BY JALAHALLI P.S.)
FOR THE OFFENCE P/U/S 420 R/W 34 OF IPC CONSEQUENTLY
ALLOW THE APPLICATION FILED BY THE PETITIONER/VICTIM
U/S 451 R/W 457 OF CR.P.C. AND DIRECT THE RESPONDENT
POLICE TO RELEASE THE AMOUNT WHICH WAS SEIZED AND
SUBJECTED IN THE P.F.NO.7/2022 DATED 11.02.2022 AN
AMOUNT OF RS.7,00,000/- (SEVEN LAKHS ONLY) TO THE
PETITIONER FOR INTERIM CUSTODY AND BONAFIDE USE ON
SUCH TERMS AND CONDITIONS.
THIS CRL.P. COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 6233 of 2022
ORDER
The petitioner is before this Court calling in question an order dated 30.06.2022 passed in Crime No.8/2022, which has registered for offence punishable under Section 420 read with Section 34 of the IPC, whereby, the learned Magistrate turns down the application filed by the petitioner-victim under Sections 451 and 457 of the Cr.P.C. for release of the seized amount to the tune of Rs.7.00 lakhs in P.F.No.7/2022.
2. Heard the learned Senior counsel, Sri. Sandesh J. Chouta, appearing for the petitioner and the learned HCGP, Sri. K.S. Abhijith, appearing for respondent No.1.
3. The petitioner claims to be a victim in complaint registered by respondent No.2 - Complainant, against Prashanth - accused No.1 and Rahul Tiwari - accused No.2 therein. The complaint becomes an FIR in Crime No.8/2022. In the said crime, during the course of the investigation, the police had recovered an amount of -4- CRL.P No. 6233 of 2022 Rs.7.00 lakhs from the wife of accused No.1 and reported the same before the Court in P.F.No.7/2022 and certain other seizures were also made and the total amount that was involved in the transaction qua the allegation against accused No.1 was Rs.88.00 lakhs.
4. The issue is not with regard to the merit of the crime so registered by the complainant against the aforesaid accused. The petitioner, who claims to be a victim of the alleged fraudulent activities of accused Nos.1 and 2, files an application before the concerned Court under Sections 451 and 457 of the Cr.P.C. seeking release of Rs.7.00 lakhs, which was seized in P.F.No.7/2022 on 11.02.2022 in his favour for interim custody, as the claim of the petitioner therein was that the amount was his and one of those victims of the fraudulent activities of accused Nos.1 and 2. The other reasons was that the mother of the petitioner was aged 72 years and had to undergo a surgery, needed the amount for medical treatment. That having been turned down by the learned Magistrate is -5- CRL.P No. 6233 of 2022 what drives the petitioner before this Court in the subject petition.
5. Learned Senior counsel, Sri. Sandesh J. Chouta, representing the petitioner would contend that the petitioner being a victim is entitled to in law for interim custody of the seized amount, which even in terms of the investigation belongs to him. The reason rendered by the learned Magistrate to decline the application particularly insofar as it is concerns Rs.7.00 lakhs of the petitioner was erroneous and runs counter to the judgment rendered by the Apex Court in the case of SUNDERBHAI AMBALAL DESAI v. STATE OF GUJARAT1.
6. Learned HCGP though would put up vehement objection to the contentions so advanced admits that PF No.7/2022 belongs to the petitioner but cannot be released till the investigation is complete and a charge 1 (2002) 10 SCC 283 -6- CRL.P No. 6233 of 2022 sheet is filed in the case at hand and would seek dismissal of the petition.
7. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute and therefore are not required to be reiterated. The application is filed by the petitioner for release of Rs.7.00 lakhs on the reason so stated in the application ought to have been entertained by the learned Magistrate as the Apex Court considering the very provision of law in the case of SUNDERBHAI AMBALAL DESAI (supra), holds as follows:
"7. In our view, the powers under Section 451 CrPC 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;-7- CRL.P No. 6233 of 2022
2. court or the police would not be required to keep the article in safe custody;
3. if the proper panchnama before handing over possession of the 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.
11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest.
12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or -8- CRL.P No. 6233 of 2022 dacoity has taken place, then seized articles be handed over to the complainant after:
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.
13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition.
21. However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are -9- CRL.P No. 6233 of 2022 not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
(emphasis supplied) In the light of the judgment of the Apex Court in the case of currency notes that are seized, the maximum period that it could be held is 15 days or one month and later, it should be released and interim custody should be handed over to the victim/complainant.
9. If the order passed by the learned Magistrate is considered on the bedrock of principles laid down by the Apex Court in the aforesaid judgment, it would on the face of it, run foul, as the Court directs that till the investigation is complete and the charge sheet is laid, the amount cannot be released. Though the concerned Court directs even after lapse of four months, the Investigating Officer has not filed a final report and a direction is issued
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CRL.P No. 6233 of 2022 to file a final report as soon as possible would not hold this Court to pass the order, which is in tune with the judgment of the Apex Court in the case of SUNDERBHAI AMBALAL DESAI (supra).
10. For the aforesaid reasons, the following:
ORDER I. Criminal petition is allowed. II. Interim custody of PF No.7/2022 is directed to be handed over to the petitioner, subject to the following conditions:
1) The prosecution shall prepare detailed and proper panchanama of such articles;
2) Take photographs of such articles, and a bond that such articles, would be produced, if required at the time of trial.
3) Proper and adequate security shall be taken by the Investigating Officer.
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CRL.P No. 6233 of 2022 Ordered accordingly.
Sd/-
JUDGE SJK