Piyush Purwar vs Addl. Chief Judicial Magistrate ...
2011 Latest Caselaw 1295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23
 

 
Case :- U/S 482/378/407 No. - 2879 of 2010
 

 
Petitioner :- Piyush Purwar
 
Respondent :- Addl. Chief Judicial Magistrate Lucknow And 2 Others
 
Petitioner Counsel :- Puneet Chandra
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Shri Kant Tripathi,J.

Heard Mr. Puneet Chandra, learned counsel for the petitioner and learned AGA for the respondent and perused the record.

This is a petition under Section 482 Cr.P.C. for quashing the order dated 18.6.2010 passed by Additional Chief Judicial Magistrate, Court No. 27, Lucknow, in Case Crime No. 150/2010, under Section 381 I.P.C., P.S. Vikas Nagar, District Lucknow.

It appears that a cash amount of Rs. 6,000/- and certain ornaments were recovered by the police from the possession of the accused who was a maid servant in the house of the petitioner.  The petitioner claimed the recovered cash amount as well as the ornaments alleging that the same belonged to him.  The learned Magistrate rejected the application on the ground that the petitioner had not affixed any list of the stolen articles either with the FIR nor handed over the same to the police during the investigation.  The photocopy of the list annexed with the application for release of the recovered articles was not admissible for want of its original.  The learned Magistrate further found that no evidence was adduced except the alleged photocopy of the list of articles in support of the claim.  In that view of the matter, the learned Magistrate rejected the application for release of the recovered articles.

The learned counsel for the petitioner submitted that the petitioner was not provided any opportunity to prove his ownership in regard to the claim of cash amount and the ornaments nor the learned Magistrate held any summary inquiry to find out truth in the claim set up by the petitioner.  Therefore, the impugned order suffers from material illegality resulting in failure of justice in the case.

The learned counsel for the petitioner further submitted that the Apex Court has settled the legal position in regard to disposal of the case properties, in the case of Sunder Bhai Amba Lal Desai v. State of Gujrat (2002) 10 SCC 283, therefore, the learned Magistrate was required to consider the matter accordingly.  The observations of the Apex Court in paras 11, 12, 13 and 14 are required to be observed as guidelines for disposal of valuable articles and currency notes etc., which are being reproduced as follows:-

?11. 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.

12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or 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 Cr.P.C. 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 Cr.P.C. to impose any other appropriate condition.

14.In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."

The following observations of the Apex Court made in paras, 7, 8 and 9 also seem to be relevant, which are being reproduced as follows:-

"7.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 panchnama 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.

8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr. (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 its 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 inquire 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."

9.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."

 When the petitioner had set up a case that the recovered currency notes and the ornaments were stolen by the accused from his house and they belonged to him, it was incumbent upon the learned Magistrate to hold a summary inquiry to find out truth in the allegations made by the petitioner.  The learned Magistrate did not provide any opportunity to the petitioner to prove the allegations made by him.  It was also obligatory on the part of the learned Magistrate to peruse relevant materials collected during the investigation to find out as to whether there was any evidence in favour of the petitioner which had been collected during the investigation.  If, there had been some evidence collected during the investigation to support the plea raised by the petitioner, the learned Magistrate should have also taken into account those materials while considering the petitioner's prayer.  The impugned order which has been passed without holding a proper inquiry and also without providing any reasonable opportunity to the petitioner to adduce evidence, cannot be upheld.

The petition is allowed.  The order dated 18.6.2010 passed by the Additional Chief Judicial Magistrate, Court No. 27, Lucknow  (Annexure 1) is quashed. 

The Additional Chief Judicial Magistrate is directed to reconsider the matter in the light of the observations made herein before and pass a fresh order in accordance with law expeditiously without granting unnecessary adjournments.

Order Date :- 22.4.2011/Ravi