Bombay High Court
Navin vs 3] Sachin on 9 December, 2011
Bench: A.P. Bhangale
1
Cr. Appln.237/2008
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
Criminal Application No. 237/2008
Navin s/o Vasantraj Modh,
Aged about 37 years, occ.Business,
R/o Hansapuri, Juna Bhandara
Road, Nagpur. .. Applicant
Versus
1] State of Maharashtra,
through Police Station Officer,
Police Station, Tahsil Nagpur.
2] Vishalbhai s/o Narendrabhai Parekh,
Aged Major, Occ. Business,
R/o C/o R. V. Jewelers and Parekh R.
Vitthaldas, Sarafa Bazar, Itwari,
Nagpur.
3] Sachin s/o Prabhakarrao Sutone,
Aged Major, Occ Business,
R/o C/o Shri Gajanan Jewelers,
Tukdoji Putla, opp. Cancer Hospital,
Quarter No.2/5, Vidarbha Housing
Board Colony, Nagpur. .. Respondents.
...
Shri J. M. Gandhi, Advocate for the applicant.
Shri S.J. Jichkar, Advocate for respondent no.1.
None for respondents 2 and 3.
..
Coram : A. P. Bhangale, J.
Dated : 9/12/2011.
Cr. Appln.237/2008
ORAL JUDGMENT :
1] By this application under Section 482 of the Code of
Criminal Procedure, the applicant has prayed for to quash and set
aside the impugned order of dismissal passed by the learned Sessions
Judge (in charge) Nagpur on 16.8.2007, whereby the Criminal
Revision Application which arose out of common order dated
15.2.2007 passed by the learned Judicial Magistrate First Class, Court
No.4, Nagpur, below Misc. Cri. Appln. Nos. 1573/2006, 1818/2006
and 2000/2006 (which were applications by different claimants to the
seized property in Crime No.213/2006, reported at Tahsil Police
Station, Nagpur) came to be dismissed.
2] It appears that Vishalbhai Narendrabhai Parekh running a
business in the name and style as "R. V. Jewellers" and "Parekh R.
Vitthaldas" had preferred Misc. Criminal Application No. 1573/2006
to claim seized gold reported to the learned Magistrate by the Police
from Tahsil Police Station. Another claimant Sachin Prabhakarrao
Sutone had filed Misc. Criminal Application no.1818/2006 claiming
the same property, while the present applicant also preferred Misc.
Criminal Application No.2000/2006 to claim seized gold. It may be
noted that Crime No.213/2006 was reported to by Tahsil Police
Cr. Appln.237/2008
Station under Sections 420, 467, 468, 471, 411 read with Section 34
of the Indian Penal Code. During the course of the investigation, the
police had seized gold weighing 4.350 grams and some cash amount
in the sum of Rs.1,52,000/-
3] Considering three applications preferred as above by
different claimants in respect of the seized property reported to the
learned Magistrate, the learned Magistrate on the basis of averments
made in the various applications and material placed before him dealt
with the question as to who is prima facie entitled to possession of
seized property in Crime No.213/2006 reported at Tahsil Police
Station, Nagpur. On prima facie view of the matter, the learned
Magistrate did not find material in support of the application filed by
one Sachin Prabhakarrao Sutone and also regarding the application
made by present applicant. It was observed that the present applicant
did not file any document to corroborate his contention about alleged
ownership of the seized gold. According to the learned Magistrate,
copy of the Item Register filed by the present applicant did not reveal
as to how he came into possession of the property in question. While
the learned Magistrate considered the contention by the Investigating
Officer concerned that the prime accused Manish had delivered 1200
grams gold to co-accused Sachin Sutone who, in turn, out of the said
Cr. Appln.237/2008
1200 grams gold sold 800 grams of gold to the applicant Navin
Vasantraj Modh.. Thus, on the ground that the present applicant
appeared a prima facie purchaser of the stolen property and he did
not produce any document to show his legal possession of the ingot
gold weighing 798 grams allegedly recovered from his possession. It
was concluded that he is not entitled to possession of ingot gold
weighing 798 grams. Thus, prima facie when the accused Manish
Pasari in the case had not claimed the amount as well as gold; the
learned Magistrate going by settled principles of law that owner or a
person in the lawful possession of the property is entitled to claim its
possession pending trial thus finding that Vishalbhai Parekh, who
preferred Criminal Application No.1573/2006 is prima facie is
entitled to have possession of gold weighing 4.345 kgs. and cash
amount of Rs. 162,000/-. Conditional order was passed to direct
release of seized gold and cash of Rs. 1,62,000/- seized during
investigation in the Crime No.213/2006 to Vishalbhai Parekh
(applicant in Criminal Application No.1573/2006) subject to his
executing an indemnity bond in the sum of Rs. Fifty lakhs with a
surety in the like amount with further conditions imposed against the
said claimant Shri Vishalbhai and he shall not change the nature of
the properties either personally or through agent and shall not cause
any damage to the property given in his possession and furthermore;
Cr. Appln.237/2008
he shall not dispose of the property until further order and shall
produce the same in the Court whenever required by the Court. Thus,
it was conditional order provisionally passed and is subject to final
order to be passed by the Court at the conclusion of the trial. The
common order dated 15.2.2007 passed by the learned Judicial
Magistrate First Class, Court No.4, Nagpur, was challenged in revision.
It appears that the learned Sessions Judge-in charge-Nagpur dismissed
revision application on the ground that it was an interlocutory order
and revision was untenable in law.
4] The learned Advocate for the applicant submitted that the
learned Sessions Judge wrongly considered the order passed by the
learned Magistrate as an interlocutory order passed under Section 451
of the Code of Criminal Procedure, particularly when the Misc.
Criminal Application preferred by the claimant Navin Modh(present
applicant) mentioned Section 457 of the Code of Criminal Procedure.
5] Learned Advocate for the applicant has made reference
to the ruling in Jagtar Singh and another Vs. State of Punjab and
others reported in IV(2004) CCR 55 (Supreme Court) to canvass
proposition that during the proceedings, there cannot be an
adjudication regarding rights between the parties in regard to the
Cr. Appln.237/2008
amount in deposit as direction, if any, may cause prejudice to the
defence of the accused. It appears that the observations made in
paragraph 11 of the said ruling were with reference to the
adjudication by the High Court in the bail application proceedings
regarding rights of the parties as to amount deposited in the Court for
want of settlement between the parties in Lok Adalat. Thus,
according to the observations, since it was a civil dispute, the rights
could not have been adjudicated in the bail application proceedings.
For that reason, the Apex Court had set aside the order passed by
Punjab and Haryana High Court, till appropriate order is passed by
the Competent Court. The next ruling which is cited in the case of
Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd. and
another, reported in 2002(1) Mh.L.J. 81 in order to submit that the
question as to whether an order is interlocutory or not, cannot be
decided by merely looking at the order or merely because the order
was passed at the interlocutory stage. In other words, according to
the learned Advocate for the applicant, the learned Sessions Judge
ought to have decided the revision on merits instead of considering
the impugned order as interlocutory order. Since according to him,
the order impugned was in effect rejection of claim made by the
applicant before the learned Magistrate.
Cr. Appln.237/2008
6] The reference is also made to the ruling in Milind s/o
Prabhakar Rokade Vs. State of Maharashtra and another reported in
2003 (2) Mh.L.J. 735 in order to submit that with reference to the
application under Sections 451 and 457 of the Code of Criminal
Procedure when such orders are passed, such orders cannot be treated
as interlocutory especially when substantial rights of the parties are
affected. It is pointed out that this Court has exercised inherent
jurisdiction under Section 482 of the Code of Criminal Procedure for
return of motor-cycle on execution of supratnama and upon
furnishing guarantee to the satisfaction of the learned Magistrate
concerned in that case.
7] Reference is also made to ruling in State vs Mrs.
Renukadevi, reported in 1999 Mh.L.J. 2955 (Madras High Court) to
canvass a proposition that order granting custody of the seized
property by deciding right to possession of property cannot be treated
as an interlocutory order. The learned Advocate for the applicant
submitted that an order passed by the Trial Court under Section 452
of the Code of Criminal Procedure, after going into merits of the
application cannot be treated as interlocutory order particularly when
the property was seized by the police during the course of the
investigation and seizure was reported to the Magistrate though
Cr. Appln.237/2008
seized property was not produced before the Criminal Court during
the inquiry into an application by the claimant.
8] I have perused rulings cited above and also heard
learned A.P.P., who opposes this application. According to the learned
APP, learned Judicial Magistrate First Class, Court No.4, Nagpur had
considered merits of the claim by the present applicant. The present
applicant although stated on oath that he is owner of 798 grams
ingot gold seized from his possession in the course of the
investigation into crime, the applicant Navin had not produced
documentary evidence to establish prima facie ownership of the gold
recovered from his possession. According to the learned APP, copy of
the Item Register filed by the present applicant was also considered by
the Magistrate and it did not reveal as to how the applicant can claim
lawful possession of the said gold. Thus, the learned Magistrate was
left with version of the Investigating Officer at that prima facie stage
and according to the Investigating Officer, the prime accused Manish
had delivered 1200 grams of gold to the co-accused Sachin Sutone
while said Sachin Sutone sold 800 grams out of the said gold to
present applicant Navin at low price. Thus, 798 grams gold was
seized from the present applicant pursuant to the disclosure statement
made by co-accused Sachin Sutone. Thus, according to the
Cr. Appln.237/2008
Investigating Officer, the present applicant Navin was prima facie a
purchaser of the stolen property and was not in legal possession of the
same. Thus, according to learned APP, provisional conditional order
to return the seized property in favour of claimant Vishalbhai was
rightly passed by the learned Judicial Magistrate First Class, Court
no.4, Nagpur, subject to further orders of the Court. For these
reasons, learned APP submitted that the contention as to whether
impugned common order is interlocutory or not goes into oblivion as
it was provisionally passed subject to reasonable conditions to ensure
its production at trial and is, therefore, subject to final outcome of the
case pending with the learned Judicial Magistrate First Class, Court
No.4, Nagpur.
9] Considering the contention of the learned APP, it may be
noted that Section 451 of Code of Criminal Procedure would operate
pending investigation or inquiry when property is produced before the
Court. While Section 457 of Code of Criminal Procedure is a
residuary provision which would operate pending inquiry or trial
when property is not produced before the Court. While Section 452 of
the Code of Criminal Procedure would operate at the time of
conclusion of the trial when property produced before the Trial Court
is directed to be delivered to the person who is entitled to lawful
Cr. Appln.237/2008
possession of the same with or without conditions. It must be further
noted that the Magistrate concerned has wide discretion to pass an
order, which may be proper, use of discretion which has to be
exercised judicially after due consideration of the interest of justice
including the prospective necessity of the production of the seized
property at the time of the trial. Therefore, it is not advisable to
return the seized property if it is likely to be required for identification
and use at the time of the trial but the Trial Court has discretion to
release seized property conditionally considering the merits of the
claim upon exercise of judicial discretion considering the prospective
necessity of the seized property at the time of the trial. It is open for
the Criminal Court to exercise its discretion to dispose of the property
at the time of conclusion of the trial with or without condition. That
would be necessarily on the basis of evidence led before it in the main
case. The Criminal Court would not enter into the complicated
questions of title to the property which shall always be decided by the
competent Civil Court. The Trial Court would as a general rule return
the property to the person from whom it was seized provided that the
Trial Court may by way of an exception decide the question of
possession of the seized property while considering as to which of the
claimant is best entitled to the lawful possession of the property.
Cr. Appln.237/2008
10] Considering these settled principles and the fact that the
trial is still pending and that it is open for the present applicant to
appear before the Trial Court and pray for return of the property upon
adducing necessary evidence before it and fact that the the Trial Court
can consider such application under Section 452 of the Code of
Criminal Procedure; this Court need not enter into merits of the
controversy as to which of the applicant is best entitled to lawful
possession of the seized property. The factum of lawful possession can
be decided by the Trial Court under Section 452 of the Code of
Criminal Procedure at the time when trial concludes.
11] For all these reasons since power under Section 482 of
the Code of Criminal Procedure is to be exercised sparingly and
exceptionally, no ground is made out to exercise inherent powers.
Criminal Revision Application is, therefore, dismissed. The applicant
is at liberty to prefer an appropriate application before the appropriate
Court.
JUDGE
Ambulkar.
