Allahabad High Court
Anis vs State Of U.P. & Another on 12 September, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- APPLICATION U/S 482 No. - 15488 of 2007 Applicant :- Anis Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Ashutosh Tripathi Counsel for Opposite Party :- Govt. Advocate Hon'ble Om Prakash-VII,J.
Heard Shri Ashutosh Tripathi, learned counsel for the applicant and the learned AGA for the State.
Notice was issued to opposite party no.2 but the office report dated 25.8.2007, shows that notice has not returned back after service and for the reasons mentioned here-in-after, there is no need to issue fresh notice to the opposite party no.2 and the matter is being decided finally.
The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 14.9.2005 passed by the Additional Chief Judicial Magistrate, Northern Railway, Ghaziabad in Case No. 2275 of 2004 (State vs. Anis and others) under Sections 379/411 I.P.C., Police Station G.R.P., District - Ghaziabad whereby the court below has allowed the release application of the informant/ complainant and released the currency note recovered in the matter in favour of the informant/ complainant.
It appears that the above case was pending before the court below and trial was going on, an amount of Rs. 17,000/-, said to be the case property of crime no. 360/2004 under Section 379 IPC, was recovered from the possession of the accused/ applicant, who is facing trial. The informant moved an application to release the said amount in his favour and vide order dated 28.7.2004, the court below rejected the release application observing that the recovered currency note may be required in evidence. Later on, another application was moved on behalf of the informant to release the amount. The court below obtained report from the A.P.O. concerned, allowed the application and released the amount on the condition that a bond amounting to Rs. 10,000/- be filed. It has also been observed that defence has not made any objection on the release application being allowed. It also appears that an application dated 14.12.2004 had also been moved on behalf of the applicant to release the amount in his favour, which has not been disposed of.
It is submitted by the learned counsel for the applicant that the applicant had moved an application to release the amount in his favour prior to moving of the application by the informant which is pending before the court concerned and without disposing of the application moved by the applicant, release order was passed on the application moved by the informant. No opportunity of hearing was given to the applicant.
It has further been submitted by the counsel for the applicant that the court below has no jurisdiction to alter / modify/ correct its earlier order dated 28.7.2004 and the impugned order passed on 14.9.2005 will amount alteration/ correction in the order dated 28.7.2004 for which there is bar under Section 362 Cr.P.C.. Since the impugned order does not come under the purview of Sections 451, 452, 453 Cr.P.C., the present application taking recourse of the provisions of Section 482 Cr.P.C. invoking inherent jurisdiction of this Court has been filed and the application is well maintainable.
On the other hand, learned AGA appearing for the opposite party no.1 has submitted that as the trial is pending before the court below and the release application was moved during pendency of the trial, the provisions of Section 451 Cr.P.C. are clearly attracted in the present matter and the impugned order is revisable, hence inherent jurisdiction cannot be invoked to override the statutory provisions. It is further submitted that the applicant has been given fullest opportunity of hearing at the time of disposal of the release application.
I have considered the rival submissions made by the learned counsel for the parties and perused the entire record.
It is well settled that power under Section 482 Cr.P.C. is only to be exercised for limited purposes to give effect to any order under the Code, or to prevent abuse of process of any court or otherwise to secure ends of justice and it should be exercised sparingly.
So far as the submission of the learned counsel for the applicant that the impugned order does not come under the purview of Sections 451, 452, 453 Cr.P.C. is concerned, the said submission is not acceptable. The impugned order has been passed on the application moved by the informant to release the currency note during pendency of trial. Section 451 Cr.P.C. provides as under:
"451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation.- For the purposes of this section," property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
In the Explanation to Section 451, it is mentioned that property described in the Section includes property of any kind or document, which is produced before the court or which is in its custody.
From a perusal of the entire record, it is clear that the said currency note, which has been released in favour of the informant/ complainant, was in the custody of the court below. Therefore, the provisions enumerated under Section 451 Cr.P.C. are clearly applicable to the present matter and the order passed on the release application under Section 451 Cr.P.C. is revisable one. The Apex Court in the case of Sunderbhai Ambalal Desai vs State of Gujarat , (2002) 10 SCC 283, has held that the property in the custody of the court should be released at the earliest.
Since the applicant has approached this Court directly without availing statutory remedy of filing revision, this Court does not find any ground to invoke its inherent jurisdiction and to analyse/ adjudicate the matter on merits. It is open to the applicant to file revision before the concerned District and Sessions Judge against the impugned order and may raise all questions, raised by him in this Court, which shall be dealt with/ considered by the revisional court.
With the above observations, the application stands disposed of accordingly.
Dated : 12.9.2014 safi