Calcutta High Court (Appellete Side)

Rogina Bibi @ Rezina Bibi @ Bibi ... vs The State Of West Bengal & Ors on 25 November, 2022

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                             CRR 240 of 2019

                 Rogina Bibi @ Rezina Bibi @ Bibi Rejina

                                      Vs.

                      The State of West Bengal & Ors.



For the Petitioner           : Mr.Prosenjit Mukherjee.



For the Opposite Parties     : None
No. 2 & 3




For the State                : Mr. Binoy Panda,
                               Ms. Puspita Saha




Heard on                     : 16.11.2022




Judgment on                  : 25.11.2022
                                      2




Shampa Dutt (Paul), J.:



     The revisional application is against an Order dated 07.04.2017

passed by the learned Additional Chief Judicial Magistrate, Rampurhat,

Birbhum in G.R Case No. 307 /17 relating to Rampurhat Police Station

Case No. 109/17 under Sections 448/394/506/34 of the Indian Penal Code

and adding Section 411 of the I.P.C and quashing of the charge-sheet in the

said case.

     As seen from the FIR the petitioner Rogina Bibi is the complainant

and the opposite party No. 2 and 3 are the accused persons in this case.

Charge-sheet has been submitted against the opposite party No.2 and 3 for

offence punishable under Sections 448/394/411/506/34 of the IPC as

such prayer for quashing of the charge-sheet appears to be misconceived.

     The relief prayed for by the petitioner is against the Order dated

07.04.2017

passed by the learned Additional Chief Judicial Magistrate,

Rampurhat, Birbhum in G.R Case No. 307/17 relating to Rampurhat P.S

Case No. 109/19.

Vide the said Order, the learned Magistrate considered the prayer of

the petitioner /de facto complainant herein praying for return of the seized

cash. The learned Magistrate passed an Order stating that till the closing of

the trial the seized cash could not be returned.

It is found that the said Order contains no reasons nor any findings

as to why the seized cash is required to be retained.

Mr. Prosenjit Mukherjee, learned counsel for the petitioner

submits that the petitioner in this case had filed the written complaint with

Rampurhat P.S on 04.04.2017 stating that when she was alone in her

house at 14:30 hrs the accused persons entered the house forcefully and

took away Rs.2,10,000/- in cash from her almirah by holding a knife to her

neck. During investigation the police arrested the accused persons and on

search recovered Rs.1,28,000/- cash from the bag of accused Shilpa

Mondal @ Momtaz (opposite party no. 2) and the same was seized under

proper seizure list.

Learned Counsel for the petitioner has relied upon Section 457 of the

Code of Criminal Procedure and has submitted that the petitioner/de facto

complainant is entitled to get the seized cash back on proper undertaking.

It is further submitted that the petitioner is facing severe financial crisis

and the said cash is required for her personal use.

Mr. Binoy Panda, learned counsel for the State submits that the

Court may consider the materials on record and pass necessary Orders.

In the present case the charge-sheet has been submitted against the

accused persons/ O.P No. 2 and 3. Cognizance has been taken by the

learned Magistrate. As such the proceedings before the Trial Court is in the

stage of commencement of trial.

In Ramparkash Sharma-Vs- State of Haryana reported in (1978)

AIR 1282 the Supreme Court on 18.04.1978 considered the procedure

under Section 437 of the Code of Criminal Procedure.

Justice Krishna Iyer, V.R. while deciding the said case observed;

"....Where property has been seized and/or otherwise produced before the Court, the manner to dispose of such property is governed by Sec. 451...."

"....Whenever the claimant asks for the property back, it does not mean that he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the Court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized- articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return."

The Court relied upon the decision cited in (1997) 4 SCC 368 in

Smt. Basava Kom Dyaman Gond Patil-Vs- State of Mysore & Ors.

Justice Krishna Iyer further held;

"....Chapter 34 of the Criminal Procedure Code deals with disposal of property. There is a trichotomy in the sense that where property has been seized by the police, but not produced before the Court, the power to

dispose it of is covered by Section 457. Where property has been seized and/or otherwise produced before the Court, the manner to dispose of such property is governed by Sec. 451. If the question of disposal arises after the enquiry or trial in any criminal court is concluded, the disposal of the property involved in the case is governed by Sec. 452."

Section 457 of the Cr.P.C covers the facts of the present case.

Admittedly the police have recovered a considerable sum of money from the

O.P. No. 2/accused and has seized the same in connection with the present

case registered against O.P. No. 2 and 3/accused, on the basis of a

complaint filed by the petitioner/ defacto complainant herein. The

investigation in the case is over. Charge-sheet has been filed and

cognizance has been taken.

In view of the guidelines in the decision of Justice Krishna Iyer,( in

Ram Parkash Sharma-Vs- State of Haryana (supra) the decision of the

learned Magistrate vide Order dated 07.04.2017 is set aside as the learned

Magistrate has passed the said Order without any findings and without

giving proper reasons. The learned Magistrate failed to decide the prayer of

the petitioner/defacto complainant on its own merit. Every case has to be

decided on its own merit and discretion of the Court has to be exercised

after due consideration, in the interest of justice including the prospective

necessity of the production of the seized articles at the time of the trial (as

in the words of Justice KrishnaIyer).

The Court in Ram Parkash Sharma (supra) further held....

"....if the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return ...".

In such cases where such prayer is either allowed or rejected the

same has to be reasoned and with clear findings.

Justice Krishna Iyer further held;

"All that we, need do at the moment is to uphold the power of the Court to release the property and direct the Special Judge to hold an investigation into, the necessity for the notes seized to be retained with the police or in the Court for future use at the time of the inquiry or trial. If he is of the opinion that the notes are so required, the property shall not be released. If, on the other hand, the notes are not needed in any manner in the later stages of the inquiry or trial, it will be proper for the Court to release the property on the appellant furnishing adequate security."

Accordingly on setting aside the Order dated 07.04.2017 of the

learned Magistrate in G.R. Case No. 307/17 relating to Rampurhat P.S

Case No. 109/17 this Court directs the learned Magistrate to consider the

materials on record and hear all the stakeholders regarding the necessity

for the seized cash to be retained and come to a definite finding either to

release the cash or retain the same in accordance with law. The learned

Magistrate will accordingly consider the prayer of the petitioner for return of

the seized cash afresh and pass appropriate Orders under Section 457 of

the Code of Criminal Procedure and will dispose of the said matter within

a month from the date of communication of this Order.

Criminal Revision No. 240 of 2019 is accordingly allowed.

The learned Magistrate will act as per the observation and directions