Allahabad High Court
Naresh vs State Of U.P. And Another on 18 March, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 5223 of 2021 Applicant :- Naresh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mirza Ali Zulfaqar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Mirza Ali Zulfaqar, learned counsel for applicant and learned AGA for State.
2. This application under section 482 Cr.PC has been filed challenging order dated 30.10.2019 passed by Judicial Magistrate, Rampur in Case Crime No. 237 of 2019 (State Vs. Natthu Lal and others) under Sections 411, 414 I.P.C. P.S. Bhot, District, Rampur as well as order dated 19.12.2020 passed by Additional Session Judge Court No. 3, Rampur in Criminal Revision No. 16 of 2020 (Naresh Vs. State of U.P.) arising out of order dated 30.10.2019 whereby aforesaid Criminal revision has been dismissed.
3. Record shows that in respect of an incident which is alleged to have occurred on 21.09.2019, a prompt F.I.R. dated 21.09.2021 was lodged by first informant/opposite party-2 Sub Inspector Ram Sundar Yadav and was registered as Case Crime No. 237 of 2019 (State Vs. Nathhu Lal and others) under Sections 411, 414 I.P.C. P.S. Bhot District, Rampur. In the aforesaid F.I.R., three persons namely Natthu Lal, Ravi Kumar and Naresh have been nominated as named accused.
4. Perusal of F.I.R. goes to show that on information received from informant, Police of Police Station Bhot acted swiftly. Accordingly, Police Check was laid at Thunapur crossing. At the time of checking, one vehicle bearing registration no. U.P.22AT2483 was also checked. Three iron chequered plates and 400 litres of diesel were recovered from aforesaid vehicle. One person managed to escape away whereas two persons were arrested on spot. Upon arrest, arrested persons disclosed their names as Ravi and Natthu Lal. They further disclosed that name of run away accused as Naresh.
5. After aforesaid F.I.R. was lodged, applicant-Naresh filed a release application in terms of Section 457 Cr.P.C seeking release of seized goods. Magistrate concerned vide order dated 30.10.2019 rejected the release application on the grounds that applicant alongwith two others are named in F.I.R. Applicant and another accused were arrested on spot. Investigation is still going on as charge-sheet has not yet been submitted. Seized property is case property. Arrested accused in their statements under Section 161 Cr.P.C. have supported the prosecution story as unfolded in the F.I.R.
6. Feeling aggrieved by order dated 30.10.2019 applicant filed a criminal revision as provided under Section 397/401 Cr.P.C. Same was registered as Criminal Revision No. 16 of 2020 (Naresh Vs. State of U.P.). Applicant raised as many as eight grounds in challenge to order dated 30.10.2019. Ultimately, Revisional Court vide order dated 19.12.2020 rejected the criminal revision filed by applicant-Naresh. Revisional Court re-affirmed the findings recorded by concerned Magistrate. It also held that charge-sheet has been submitted in which applicant has been nominated as an accused. The issue as to whether revisionist is owner of disputed goods is an issue of fact which can be decided only after evidence is led during course of trial. On the aforesaid premise Revisional Court did not find any good ground to interfere in the order of Magistrate.
7. As a result, feeling aggrieved by aforesaid orderS, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
8. Mr. Mirza Ali Zulfaqar, learned counsel for applicant in challenge to impugned orders dated 30.10.2019 and 19.12.2020 contends that impugned orders passed by courts below are manifestly illegal and without jurisdiction. Courts below have rejected the release application filed by applicant without considering the necessity of retaining the seized goods. Reasons assigned by courts below for rejecting release application are irrelevant.
9. Elaboration his submissions, learned counsel for applicant contends that the law with regard to release of seized goods with reference to sections 451 and 457 Cr.P.C. is no longer res-integra and stands crystalized by Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat (2002)10 SCC, 283. Reliance is placed upon paragraphs 6,7 and 14 of aforesaid judgement. Accordingly, same are reproduced herein-under:
"6. 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;
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.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.Valuable Articles and Currency Notes
14.In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."
10. Drawing a parallel with the observations made by Apex Court, which have been quoted herein above and the findings recorded by both the courts below, it is urged by learned counsel for applicants with vehemence, that courts below have decided the release application filed by applicant in ignorance of above. It is thus sought to be urged that impugned orders passed by courts below are unsustainable in law and fact inasmuch as findings recorded therein do not commensurate with the observations made by Apex Court as referred to above. Courts below having failed to consider the necessity of retaining the seized goods qua the criminal case have essentially ignored the law laid down by Apex Court which is otherwise binding by virtue of Article 141 of the Constitution of India.
11. Per contra, learned A.G.A. has opposed the present application. Learned A.G.A. has referred to the statements of arrested accused and findings recorded by both the courts below by submitting that charge-sheet has been submitted against accused including applicant. He has further submitted that the statements of arrested accused as recorded under Section 161 Cr. P. C. clearly supports the prosecution story as unfolded in F.I.R. No such ground either on the basis of which same could be ignored. He thus concludes that no illegality has been committed by Courts below in rejecting the release application filed by applicant.
12. In rejoinder, learned counsel for applicant contends that statements recorded under Section 161 Cr. P. C. cannot form the basis of prosecution. He, otherwise, contends that since applicant is having ownership rights over seized goods as is explicit from the documents appended alongwith the affidavit. there is no reason to deny release of same.
13. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, Court finds that both the Courts below have rejected the release application filed by applicant without considering the mandate of law laid down by Apex Court in Sunderbhai Ambalala Desai (supra). Courts below have not recorded any finding regarding the necessity of retaining seized goods. No attempt has been made by Courts below to consider release of seized goods after taking adequate safe guards by way of security etc, as provided by the Apex Court itself.
14. Consequently, in view of the discussion made above, present application succeeds and is liable to be allowed.
15. Accordingly, impugned orders 30.10.2019 passed by Judicial Magistrate Rampur in Case Crime No. 237 of 2019 (State Vs. Nathhu and others) under Sections 411, 414 I.P.C. P.S. Bhot, District, Rampur and order dated 19.12.2020 passed by Additional Session Judge Court No. 3, Rampur in Criminal Revision No. 16 of 2020 (Naresh Vs. State of U.P.) are hereby quashed. Matter is remaned to concerned Magistrate who shall decide the release application filed by applicant-Naresh afresh in the light of observations made herein above, preferebly within a period of one month from the date of production of a certified /computer generated copy of this order which shall be filed by applicant by means of an affidavit.
16. Application is, accordingly, allowed. Cost made easy.
Order Date :- 18.3.2021 YK