Rajasthan High Court - Jaipur
Mahesh Kumar Mehta And Anr vs State Of Rajasthan Through Pp on 22 March, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R S.B. Criminal Miscellaneous Petition No.538 of 2013. Mahesh Kumar Mehta and another VERSUS The State of Rajasthan Date Of Order ::: 22/03/2013. Hon'ble Mr. Justice R.S. Chauhan Mr. Nitin Jain, Counsel for the Petitioners Mr. Peeyush Kumar, Public Prosecutor for the State *** Per Court :
The complainant-petitioners are aggrieved by the orders dated 21.04.2011 and 04.05.2012 passed by the Additional Chief Judicial Magistrate, No.6, Kota, whereby he has rejected the application filed by the petitioners under Section 451 Cr.P.C. for handing over the custody of the gold jewelry, which is trial property in the case.
Brief fact of the case are that a complaint came to be filed by one Mahesh Kumar Mehta, the petitioner No.1, on 04.04.2010, at Police Station, Mahaveer Nagar, Kota, alleging therein that on 03.04.2010 at around 7:00 P.M. while he was carrying on the business of jewelry, one person, namely Mohit Maheshwari, came to his shop and took gold jewelry from his shop. The said jewelry was taken on the pretext of showing the same to his family members at his house. But he did not return the gold jewelry. He tried his best to have the jewelry returned. But he failed. On the basis of the aforesaid complaint, a formal F.I.R., namely F.I.R. No.487/210 was registered at Police Station, Mahaveer Nagar, Kota.
During the investigation, the Police seized the gold jewelry. After investigation, the Police filed a charge-sheet: charges were framed for offences under Sections 420, 406, 471, 467 and 120-B I.P.C. Since, the gold jewelry was lying in the 'malkhana', the petitioners moved an application before the learned Magistrate under Section 451 Cr.P.C. for releasing of the gold jewelry. The said application was dismissed vide order dated 21.04.2011 on the ground that it would adversely affect the prosecution, and the goods can only be handed over after recording the statements of the main witnesses. Subsequently, the accused-persons did not attend the Court, and their bail bonds were forfeited. By order dated 20.04.2012, the accused-persons were declared absconders. Again the petitioners moved an application before the learned trial Court. By order dated 04.05.2012, the learned trial Court dismissed the application stating therein that the seized goods are sealed, therefore, the opening of the same would adversely affect the prosecution case. Hence, this petition before this Court.
Mr. Nitin Jain, the learned counsel for the petitioners, has vehemently contended that by order dated 21.04.2011 the learned Magistrate had dismissed his application for 'supardgi' on the ground that the jewelry item can be returned only after the statements of the witnesses are recorded, otherwise it would adversely affect the case of the prosecution. However, the accused-persons have absconded. By order dated 20.04.2012, they have been declared as absconders. Hence, the criminal proceeding has come to a grinding hault. But even then, the learned Magistrate has dismissed the present application on the ground that it will adversely affect the prosecution.
Secondly, relying on the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, [A.I.R. 2003 S.C. 638], the learned counsel has pleaded that the Apex Court has opined that no fruitful purposes would be served by keeping the valuable articles, such as golden or silver ornaments, or articles in custody. Therefore, it had directed the Magistrate to pass an appropriate order under Section 451 Cr.P.C. at the earliest. However, even this direction of the Hon'ble Supreme Court has been flouted by the learned Magistrate in the present case. Lastly, the petitioners give an undertaking that they will submit a solvent security equivalent to the value of the gold jewelry to the satisfaction of the learned trial Court.
. In all fairness, the learned Public Prosecutor for the State has not contested the legal position as stated by the learned counsel for the petitioners.
In the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, [supra] the Apex Court had observed as under:-
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, Magistrate should pass appropriate orders as contemplated under Section 451, Cr.P.C. at the earliest.
Admittedly, the accused persons have been declared as absconders. Therefore, the trial has come to a grinding hault. Hence, the trial is likely to continue for a long time. Thus, no fruitful purpose would be served by keeping the gold jewelry in police custody. Considering these facts, the learned Magistrate should have allowed the application under Section 451 Cr.P.C.
The learned Magistrate is directed to have the valuation of the gold jewelry done by a certified goldsmith, and to have the photographs of the jewelry items taken by a photographer. He is further directed to release the gold jewelry items to the petitioners, provided the petitioners submit a solvent security of the value of the gold items as assessed by the certified goldsmith.
For the reasons stated above, the order dated 20.04.2012 is quashed and set aside. The petition is, hereby, allowed.
Upon disposal of the main petition, the stay application, filed therewith, does not survive; the same is also disposed of.
[R.S. Chauhan] J.
ashok/ Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W