THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No. 6279 OF 2020
ORDER:
This Criminal Petition is filed under Section 482 Cr.P.C., to quash/set aside the proceedings in Crl.M.P.No.889 of 2019 in Cr.No.710 of 2018, pending on the file of I Additional Assistant Sessions Judge-Cum-Chief Metropolitan Magistrate, Cyberabad, L.B.Nagar and for a consequential direction to release the immovable property i.e., SCO.No.188, dimension 17'-3" x 60', measuring 115 sq.yards situated at Commercial U.E. Red Square Market, Hisar, Tehsil and District Hisar, Haryana.
2. Heard Ch.Vidyasagar Rao, learned counsel for the petitioners and the learned Public Prosecutor and perused the record.
3. The petitioners herein are the absolute owners and possessors of property i.e., SCO.No.188, dimension 17'-3" x 60', measuring 115 sq.yards, situated at Commercial U.E. Red Square Market, Hisar, Tehsil and District Hisar, Haryana. The said immovable property was seized by the Police in Cr.No.710 of 2018. Petitioners herein claiming to be the owners of the subject propert, filed a petition under Section 451 & 457 read with 102 of Cr.P.C for release of the subject property vide Crl.M.P.No.889 of 2019 in Cr.No.710 of 2018. Vide impugned order dt.13.02.2020, the Court below has dismissed the said application on the ground that Accused No.1 has used the particular property for godown and he is also involved in other 2 crimes. The Court below also held that if the said immovable property is released, there will be a panic situation for the investigating agency to trace out the items seized in various crimes including the present crime as the accused of various crimes are members of the same company with different names and there is every possibility to tampering the evidence.
4. Learned counsel for the petitioners referring to the principle laid down by the Hon'ble Apex Court in Nevada Properties Private Limited v. State of Maharashtra1, would submit that the Investigating Officer is not having power to seize the immovable property under Section 102 of Cr.P.C. He has also relied on the judgment of the Bombay High Court in Manisha Babaso Khidrapure v. State of Maharashta2, on the very same principle.
5. A perusal of the entire material would reveal that the petitioners herein are owners of the above said property and the said property was seized by the Police in Cr.No.710 of 2018. The petitioners herein are not the accused in the said crime. The petitioners herein have let out the subject property to 'We Future Maker Life Care Private Limited' represented by the 2nd respondent. Admittedly, the said property is immovable property and Section 102 of Cr.P.C deals with the power of Police to seize certain properties. There is no mention of the seizure of the immovable property as per Section 102 of Cr.P.C. 1 2019 SS Online SC 1247 2 2019 SCC Online Bom 8853 3
6. The Hon'ble Apex Court in Nevada Properties's case (supra 1) categorically held that the Investigating Officer is not having power to seize or attach the immovable property. The very same principle is followed in Manisha Babaso Khidrapure's case (supra 2).
7. Considering the said principle and also in view of Section 102 of Cr.P.C, according to this Court, the impugned order is not based on the appreciation of the principle laid down by the Hon'ble Apex Court in Nevada Properties's case (supra
1) and Section 102 of Cr.P.C. It is not a reasoned and well founded order. Therefore, the same is liable to be quashed.
8. Accordingly, the impugned order is quashed and the petition filed by the petitioners in Crl.M.P.No.889 of 2019 in Cr.No.710 of 2018 is allowed. The 1st respondent is directed to release the subject property i.e., SCO.No.188, dimension 17'-3" x 60', measuring 115 sq.yards, situated at Commercial U.E. Red Square Market, Hisar, Tehsil and District Hisar, Haryana, within one (01) week from the date of receipt of a copy of this order.
Miscellaneous Petitions, pending if any, shall stand closed.
__________________ K. LAKSHMAN, J Date: 28.04.2021 dv