Kailash Narayan Shivhare vs The State Of Madhya Pradesh
2023 Latest Caselaw 16988 MP

                                                               1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
                                               ON THE 12 th OF OCTOBER, 2023
                                             CRIMINAL APPEAL No. 11687 of 2023

                           BETWEEN:-
                           KAILASH NARAYAN SHIVHARE S/O LATE SHRI
                           GANGARAM SHIVHARE RESIDENT OF VILLAGE PENCH
                           AT PRESENT BEENAGANJ TEHSIL CHACHODA
                           DISTRICT GUNA (MADHYA PRADESH)

                                                                                        .....APPELLANT
                           (SHRI RAHUL BANSAL- ADVOCATE FOR APPELLANT)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH POLICE
                           STATION CHANCHODA DISTRICT GUNA (MADHYA
                           PRADESH)

                                                                                      .....RESPONDENT
                           ( SHRI A.K. SHUKLA - PUBLIC PROSECUTOR FOR RESPONDENT- STATE)

                                  This appeal coming on for admission this day, th e court passed the
                           following:
                                                                ORDER

This Criminal Appeal, under Section 454 of Cr.P.C. has been filed assailing order dated 28-11-2017 passed by Additional Sessions Judge, Chachoda, District Guna (M.P.) in Sessions Trial No.133 of 2011, on the limited point of release of seized property.

(2) The appeal memo, in brief, states as under:-

(i) On 15-03-2011,around 11:00 O'clock, when Kailash Narayan Shivhare (appellant) came out of SBI Branch Chachoda, after withdrawing an amount of Rs.4,50,000/- from his account, the unknown persons came Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-10-2023 05:40:42 AM

on motorcycle and caused gunshot injury to Kailash Narayan Shivhare. They snatched the bag containing cash amount and fled away from the spot. Kailash Narayan Shivhare reported the incident to PS Chachoda. FIR at Crime No.99 of 2011 for offence punishable under Section 394 of IPC was registered against unknown offenders.

(ii) During investigation, the amount of robbery was recovered from the possession of accused. Test Identification Parade was conducted.On completion of investigation, charge-sheet was filed before the Court. Learned Additional Sessions Judge, Chachoda conducted trial in Sessions Trial No.133 of 2011 and on conclusion of trial, passed impugned

judgment dated 28-11-2017, convicting accused Gajraj Singh, Ramcharan Singh, Kamlesh Sen and Inder Singh for offence punishable under Section 412 of IPC.

(iii) As other accused Keval Meena, Balveer Singh, Bhoora alias Yogendra Singh, Dashrath Singh, Ramavtar Singh and Shaulal were absconding on the date of judgment, the learned trial Court directed that the property seized during the investigation shall be disposed of at the time of judgment with reference to aforementioned absconding accused. (3) Feeling aggrieved by this observation of the trial Court with regard to disposal of property, this appeal has been filed under Section 454 of CrPC, on following grounds:-

(i) Learned trial Court held that the accused have looted the cash amount of Rs.4,50,000/- withdrawn by the appellant from SBI Branch Chachoda. Therefore, the money seized during the investigation, should have been released in favour of the appellant;

(ii) Learned trial Court ignored the settled proposition of law laid Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-10-2023 05:40:42 AM

down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283 in declining to release the looted property.

(4) On aforementioned grounds, it is requested that the finding of learned Additional Sessions Judge, Chachoda with regard to seized property may be set aside and the amount so seized during the investigation, may be released in favour of the appellant.

(5) Learned Counsel for the appellant further submits that the appellant is ready to abide by the conditions, as may be imposed for release of the property.

(6) Per contra, learned Counsel for State submits that accused Keval Meena, Balveer Singh, Bhoora alias Yogendra Singh, Dashrath Singh, Ramavtar Singh and Shaulal are absconding. The cash amount was seized at the instance of accused. Therefore, the learned trial Court committed no error withholding the disposal of the seized property.

(7) Heard the learned counsel for both the parties. Perused the record. (8) Paragraphs 16 to 23 of the impugned judgment show that cash amount was recovered from the possession of accused Bhoora alisas Yogendra, Balveer, Dashrath, Ramavtar, Inder Singh and Keval Meena. It was found proved that the seized amount relates to robbery of Rs.4,50,000/- from

appellant- Kailash Narayan Shivhare. Therefore, the cash amount should have been released after due verification of appellant. The original owner of the seized amount cannot be declined release of the amount for the reason that some of the accused are absconding. Therefore, the finding in paragraph 51 of the impugned judgment dated 28-11-2017 is set aside and the matter is remitted

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-10-2023 05:40:42 AM

to learned trial Court to consider release of the property under Section 452 of Code of Criminal Procedure, as per the law.

(9) Appeal is accordingly allowed.

(SANJEEV S KALGAONKAR) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-10-2023 05:40:42 AM