Bombay High Court
Bhanudas Pandit Dusane vs The State Of Maharashtra on 9 August, 2017
Bench: V.L. Achliya
(Judgment) (1) Cri. W.P. No. 01128 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 01128 of 2017
District : Dhule
Bhanudas Pandit Dusane,
Age : 51 years,
Occupation : Business,
R/o. Malpur,
Taluka Shindkheda,
District Dhule. .. Petitioner
versus
The State of Maharashtra,
Through Police Station Officer,
Shirpur Taluka Police Station,
Shirpur, Taluka Shirpur,
District Dhule. .. Respondent.
............
Mr. Pawan B. Pawar, Advocate, for the petitioner.
Mr. S.Y. Mahajan, Addl. Public Prosecutor, for
the respondent.
............
CORAM : V.L. ACHLIYA, J.
DATE : 09TH AUGUST 2017
ORAL JUDGMENT :
01. Rule. Rule returnable forthwith. By
consent, heard finally.
(Judgment) (2) Cri. W.P. No. 01128 of 2017
02. By the present petition, the petitioner has
raised challenge to order dated 04th July, 2017
passed by District Judge-2 & Addl. Sessions Judge,
Dhule, below Exhibit 17 in Special Case [POCSO] No.52
of 2016.
03. In view of the limited challenge raised in
the petition, it is not necessary to discuss the
facts in detail.
04. The petitioner is charge-sheeted for
committing offences under Section 363 of the Indian
Penal Code, read with Sections 4 & 7 of the
Protection of Children from Sexual Offences Act, 2012
and Section 3(1)(xi) and (xii) of the Scheduled
Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, with an allegation that he had
kidnapped a minor girl aged about 10 years from the
hostel with an intention to sexually abuse her. On
the basis of complaint lodged by father of the victim
girl, said offences came to be registered and the
petitioner was arrested. During house search of the
accused, cash amount of Rs. 4,75,000/- was recovered.
Besides cash amount, Police have also seized
motorcycle bearing no. MH-18/AB-4729 alleged to have
been used in the commission of offence.
05. The petitioner moved an application under
(Judgment) (3) Cri. W.P. No. 01128 of 2017
Section 451 of the Code of Criminal Procedure, 1973,
seeking release of the property i.e. cash amount of
Rs. 4,75,000/- as well as motorcycle. By the
impugned order, learned Addl. Sessions Judge partly
allowed the application and directed to release cash
amount of Rs. 4,75,000/- on execution of bank
guarantee of Rs. 5,00,000/- and further rejected
prayer in respect of interim custody of the
motorcycle.
06. In nutshell, it is the contention of learned
Counsel for the petitioner, that the cash amount
recovered is no way connected with the offence
registered. The condition imposed by the trial court
to release the amount subject to furnishing bank
guarantee is an onerous condition. In absence of
nexus between the offence committed and the cash
amount recovered, learned Addl. Sessions Judge should
have released the cash amount on execution of bond.
He further submits that although motorcycle is shown
to be seized as used in commission of offence, no
purpose would be served by keeping the motorcycle in
Police Station till disposal of the case.
07. Learned Addl. Public Prosecutor appearing
for the respondent, on instructions from office in-
charge of the Police Station, fairly submitted that
the amount of cash recovered has no nexus with the
offence registered against the petitioner. He
(Judgment) (4) Cri. W.P. No. 01128 of 2017
further submits that there is no dispute as to the
fact that the petitioner is registered owner of the
motorcycle.
08. Having appreciated the submissions advanced,
I am of the view that the condition imposed to
furnish the bank guarantee is an onerous condition.
In order to furnish the bank guarantee, the
petitioner will be required to arrange for the
security of more than Rs. 5,00,000/-. In absence of
nexus between the commission of offence and recovery
of cash amount, there is no justification to secure
bank guarantee. I am, therefore, inclined to modify
the condition to that effect.
09. Similarly, no purpose would be achieved by
keeping the motorcycle at Police Station pending
trial. There is no dispute as to the fact that the
petitioner is registered owner of the motorcycle in
question. Looking to the nature of offence, it is
not necessary to produce the motorcycle in court as
an evidence to prove guilt against the accused. I
am, therefore, of the view that pending disposal of
the trial, the motorcycle in question deserves to be
returned to its registered owner.
10. In the result, I am inclined to pass the
following order :-
(Judgment) (5) Cri. W.P. No. 01128 of 2017
(a) The impugned order passed by trial court and
confirmed in appeal by revisional court, rejecting
application seeking interim custody of the
motorcycle, is set aside. Pending disposal of
criminal proceedings, interim custody of the
motorcycle be handed over to the petitioner on
executing Supurtnama in the sum of Rs. 25,000/-
(Rupees twenty five thousand) with undertaking that
he shall produce the motorcycle as and when directed
by the court and further he will not sell or create
third party interest in the motorcycle till disposal
of criminal proceedings. The Supurtnama along with
the undertaking to be furnished in the trial court.
(b) The condition imposed by Sessions Court to
furnish bank guarantee of Rs. 5,00,000/- stands
relaxed. The cash amount recovered from the
petitioner be returned on execution of a bond in the
sum of Rs. 4,75,000/- by the petitioner, to produce
the cash amount as and when directed by the court and
failure to comply with the order, he shall deposit
the amount to the extent of Rs. 4,75,000/-.
(c) Copy of this order be sent to Regional / District
Transport Officer, Dhule, for taking note of the
order and not to allow transfer of ownership of said
motorcycle, during pendency of trial against the
petitioner or without prior permission of the trial
court.
(Judgment) (6) Cri. W.P. No. 01128 of 2017
11. Rule made absolute in the above terms.
( V.L. Achliya )
JUDGE
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puranik /CRIWP1128.17
