Bombay High Court
Mr. S. S. Dhengale vs Unknown on 22 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Application (APL) No. 499 of 2011
Madhukar Motiram Manohare,
Aged about 59 years, Occu : Agriculturist,
R/o. Ashok Nagar, Tiosa, P. S. & Tq. Tiosa,
Distt. Amravati.
V e r s u s
State of Maharashtra
Through P.S.O. City Police Station,
Yavatmal
.........................................................................................................................................
Mr. S. S. Dhengale, Advocate for the Applicant
Mr. A. S. Sonare, APP for the Respondent
.........................................................................................................................................
CORAM : A. P. BHANGALE, J.
DATE : 22ND NOVEMBER, 2011.
ORAL JUDGMENT:
By this application under Section 482 of the Code of Criminal
Procedure, the applicant prayed to quash and set aside the order dated
05/03/2011, passed by learned Additional Sessions Judge, Yavatmal,
below Exh. 1, in Criminal Revision No. 10/2011 and, further prayer to
quash and set aside the order dated 30/12/2010, passed by learned
Chief Judicial Magistrate, Yavatmal, below Exh. 66 in Crime No.
128/2010. It is grievance of the applicant herein that the property which
was owned by him was purchased out of agricultural income namely;
household articles belonged to him were seized during the course of
inquiry and investigation in connection with the criminal case arising out
of crime No. 128/2010, reported at City Police Station, Yavatmal. The
learned advocate for the applicant submitted that the police had seized
those articles from the possession of the applicant on the alleged ground
that these articles were purchased out of stolen amount. It is specific case
of the applicant that he is a farmer by profession and the articles were
purchased under invoices, copies of which are annexed with the
application and, therefore, the seized property produced before the
learned trial Magistrate ought to have been returned to the applicant
particularly when there was no any other claimant to claim the property
pending hearing and final disposal of the criminal case.
2. Learned Advocate for the applicant placed reliance in the
case of Sunderbhai Ambalal Desai v. State of Gujarat reported in AIR
2003 SC 638 in order to submit that the Apex Court while considering
the powers under Section 451 of the Code of Criminal Procedure,
observed, that they shall be exercised expeditiously and judiciously to
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) The jurisdiction
of the Court to record evidence should be exercised promptly so that
there may not be further chance of tampering with the articles.
3.
In other words, it is submitted that discretion ought to have been
exercised by the learned trial Magistrate by keeping these principles in
mind by directing an appropriate panchnama to be drawn in respect of
the articles in order to ensure that the proper care and custody may be
ordered pending hearing of the case to prevent the articles from being
tampered with or otherwise wasted or destroyed. Learned Advocate for
the petitioner also criticized the order passed by the learned Additional
Sessions Judge in Criminal Revision on the ground that revision was held
not maintainable because, according to revisional Court, the impugned
order passed by the learned trial Magistrate was interlocutory. Reference
is made to D'damas Jewellery India Pvt. Ltd. Versus State of
Maharashtra and ors reported in 2008(2) Bom.C.R. (Cri.) 381 in
order to submit that the order passed in respect of application under
Section 457, 452 of the Code of Criminal Procedure can not be
considered as an interlocutory order in view of the ruling. Learned APP
do not dispute this position but, submitted that the trial Magistrate may
be directed to dispose of the case as early as possible.
4. I think, considering the statements as well as rulings cited (supra),
it is true that the order passed by the learned Additional Sessions Judge,
is unsustainable as the impugned order passed by the learned Magistrate
cannot be labelled as interlocutory order in true sense of the term as it is
affecting right of the person claiming the property. It can be considered
as an interim order. It is necessary in such cases that discretion has to be
proper and judicial and not arbitrary because the order passed by the
Magistrate is nothing but an interim tentative arrangement pending
decision in the criminal case as to possession to the property or right to
possession of the seized property. If, there are complicated questions of
law, or as to title of the property or right to possession thereof, it would
be subject to the decision by the competent Civil Court. However, the
learned trial Magistrate is required to decide as to which of the claimant
is entitled to possess of the seized property pending final decision and
after considering the right to possess or claim by the claimant concerned,
appropriate, proper and judicial order may be passed keeping in mind
principles mentioned by the Apex Court in Sunderbhai Ambalal Desai's
case referred above. In these circumstances, the following order is
passed.
"ORDER"
(a) Application is allowed.
(b) The impugned orders are quashed and set
aside.
(c)
ig The learned trial Magistrate is directed to
consider the application afresh in the light of
the decision in Sunderbhai Ambalal Desai v.
State of Gujarat reported in AIR 2003 SC 638,
and shall also endeavour to dispose of the
pending criminal case No. 128/2010, reported
at City Police Station, Yavatmal, as
expeditiously as possible.
JUDGE
Punde
