Bombay High Court
Jaikisan S/O Gopikisan Dhoot vs The State Of Maharashtra, Thr. ... on 7 October, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.671 OF 2016
Jaikisan s/o. Gopikisan Dhoot,
Aged about 59 years,
Occupation : Business,
R/o. House No.5, Madhuban Colony,
Dhamangaon Road, Yavatmal,
Tq. & Distt. Yavatmal : PETITIONER
...VERSUS...
The State of Maharashtra,
Through Police Station Officer,
Police Station Yavatmal City,
Yavatmal, Tq. & Distt. Yavatmal. : RESPONDENT
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Shri A.A. Naik, Advocate for the Petitioner.
Shri H.D. Dubey, Additional Public Prosecutor for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 7
OCTOBER, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent.
3. Learned Magistrate by his order dated 2 nd March, 2016
refused to release the gold ornaments seized at the instance of the
accused No.1 but from the custody of the accused No.2 saying that the
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applicant is not prima facie entitled for the custody of the seized
ornaments. The ground of refusal was that there was no documentary
evidence on record showing the ownership of the ornaments to be with
the petitioner. The criminal revision being Revision No.22/2016 filed by
the petitioner to seek relief from his suffering in this case, was also
rejected by the learned Sessions Judge, Yavatmal by his order passed on
13.7.2016. Learned Sessions Judge reiterated the same reason as given
by the learned Magistrate in refusing respite to the petitioner.
4.
Learned counsel for the petitioner submits that the
ornaments have been admittedly identified by the petitioner and his wife
at the police station and that was the reason why the Investigating
Officer in his reply to the concerned Court of the Magistrate stated that
he had no objection in handing over the custody of the ornaments
conditionally to the petitioner. He states that this reply of the
Investigating Officer was not considered at all by the Courts below and it
shows perversity and arbitrariness on their part.
5. Learned A.P.P. submits that an appropriate order in the
interest of justice be passed.
6. On going through the record of this case, I find that there is
great substance in the argument of learned counsel for the petitioner.
The investigating officer had given his no objection for releasing the
custody of the gold ornaments in favour of the petitioner. The impugned
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orders do not say even a word about no objection given by the
Investigating Officer. The Courts below have only insisted upon the
documentary proof of ownership. It is well-known that in most of the
cases, the victims of the crime, who are robbed of their valuable articles
like gold ornaments, are not in a position to submit to the Court any
documentary proof of their ownership. The reason being that the
ornaments are handed down from one generation to another and
traditionally, the receipts of the bills are not preserved. Therefore, it
becomes the duty of the Court to consider all the facts and circumstances
of the case to arrive at a prima facie conclusion regarding ownership of
the ornaments or in some cases about the person having a better claim
over the ornaments. In this case, admittedly, both the accused have not
claimed custody of the ornaments. Obviously, they being accused, they
would not be claiming custody of the ornaments, lest some adverse
inference would be drawn against them. The investigating officer has
also given his no objection in the matter. Then, the ornaments have been
identified by the petitioner and his wife. In such cases, the conclusion
should have been that the petitioner is having a better claim over the
ornaments and same having been not been drawn, by ignoring the
material facts and circumstances of this case, I find that the impugned
orders are illegal and perverse. They cannot be sustained in the eye of
law. The petition is, therefore, allowed.
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7. The impugned orders are quashed and set aside.
8. The application filed for release of the custody of the seized
gold ornaments (Exh.-3) during the pendency of the trial is allowed.
9. All the seized articles be released into the custody of the
petitioner on his executing a supratnama of Rs.2/- lakhs on condition
that the petitioner shall not dispose of or transfer or deal with the seized
articles in any manner, shall preserve them in their present form and
shall produce them before the trial Court, if required so by that Court, till
final disposal of the case.
10. Rule is made absolute in these terms.
JUDGE
okMksns
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CERTIFICATE
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Uploaded by : D.W. Wadode, P.A.
Uploaded on : 13.10.2016.
