Madras High Court

S.Balaji vs The State Rep By on 1 December, 2023

                                                                         Crl.R.C.(MD).N0.524 of 2023

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated : 01.12.2023

                                                        CORAM

                            THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                             Crl.RC(MD)No.524 of 2023

                S.Balaji                                  ... Petitioner/Defacto Complainant
                                                  Vs.
                The State rep by
                The Inspector of Police,
                Airport Police Station,
                Trichy District.
                (Cr.No.350 of 2017)                       ... Respondent/Respondent

                PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401
                of Cr.P.C., to allolw the above Criminal Revision Case thereby setting aside the
                order dated 05.03.2019 passed in Crl.M.P.No.4598 pf 2018 in Crime No.350 of
                2017 in R.P.No.448 of 2017 dated 05.03.2019 on the file of the Judicial
                Magistrate No.6, Trichy.
                                      For Petitioner    : Mr.S.Deepak
                                      For Respondent    : Mr.E.Antony Sahaya Prabahar
                                                          Additional Public Prosecutor

                                                        ORDER

This petition has been filed to set aside the order passed by the learned

Judicial Magistrate No.6, Trichy, in Crl.M.P.No.4598 pf 2018 in Crime No.350

of 2017 in R.P.No.448 of 2017 dated 05.03.2019.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

2.(i) The petitioner is the defacto complainant in Crime No.350 of 2017.

One Karthick @ Muthu Vairavan and Anbazhagan approached the petitioner

herein for purchasing of gold from the Trichy Airport Customs Officials. On

believing their words, on 17.05.2017, the petitioner along with the amount of

Rs.22,60,000/- contacted the said persons for purchasing of 1 kg of gold. In the

Trichy Airport, one other person received the said amount from the petitioner

and asked the petitioner and the Anbazhagan to get into a Skoda Car. When the

Car was going to 2 kilometre away from the Trichy Airport, a Bolero Car

intercepted the Skoda Car and 5 persons from the Bolero Car snatched the said

amount by threatening and assaulting the petitioner.

(ii) Based on the complaint lodged by the petitioner, a case has been

registered in Crime No.350 of 2017 for the offences punishable under Sections

420, 323, 506(ii) of IPC. On enquiry, it was found that from the above said

amount, the accused persons purchased the material objects namely, a white

colour swift Car in the name of one Amutha, two Gold Biscuits weighing about

100 grams and 48 grams each. The Investigating Agency arrested the accused

and recovered the following items from the accused:-

“A white colour swift Car, a Skoda Car, Sticker Plate, a gold biscuit weighing 100 grams, a gold biscuit weighing 48 grams, a Number Plate and a Weight Machine.”

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

(iii) Thereafter, the defacto complainant filed a petition under Section 457

of Cr.P.C., in Crl.MP.No.4598 of 2018 before the Judicial Magistrate No.6,

Trichy District, seeking interim custody of the above items. The said petition was

dismissed by the learned trial Judge.

3. Challenging the same, the petitioner filed this Revision before this

Court.

4. The learned counsel for the petitioner submitted that on the complaint

given by the petitioner, the respondent police registered a case in Crime No.350

of 2017 and recovered all the items belongs to the accused persons. He placed

reliance of the judgment of the Hon'ble Supreme Court reported in Sunderbai

Ambalal Desai V. The State of Gujarat and General Insurance Council V.

State of AP. In view of the above law laid down by the Hon'ble Supreme Court,

he entitled to interim custody of the material objects in order to promote his

business. So, the learned counsel for the petitioner seeks interim custody of the

material objects and seeks indulgence of this Court to allow this petition.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

5. The learned Additional Public Prosecutor also obtained a written

instructions from the Investigating Officer and the same as follows:-

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

6. The learned Additional Public Prosecutor appearing for the State

submitted that the petitioner is a business man. The learned trial Judge dismissed

the petition filed by the petitioner on the grounds that the case is pending for trial

and if the properties are returned to the revision petitioner, he would sold the

same or he would not produce the same before the Court at the time of trial. The

learned trial Judge rightly dismissed the petition filed by the petitioner and he

prayed for dismissal of this Revision.

7. This Court considering the rival submissions and perused the records

and the impugned order passed by the learned trial Judge.

8. The learned Additional public Prosecutor on instructions, submitted that

all the recovered items are belongs to the revision petitioner. In the said

circumstances, the petitioner is entitled to interim custody.

9.The Honourable Supreme Court in the case of Sunderbai Ambalal

Desai V. The State of Gujarat, reported in (2002) 10 SCC 283, issued following

guidelines.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

10.To avoid such a situation, in our view, powers under Section 451 CrPC should be exercised promptly and at the earliest.

11.With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest.

12.For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:

(1) preparing detailed proper panchnama of such articles;

(2) (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) (3) after taking proper security.

13.For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition

14.In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed.

18.In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

10.As per the judgment of the Hon'ble Supreme Court reported in

Sunderbhai Ambalal Desai v. State of Gujarat, reported in (2002) 10 SCC 283,

and unreported judgment of this Court in Crl.O.P.No.5254 of 2021 in M/s.PMJ

Gems and Jewellers Pvt.Ltd., v. The Inspector of Police, Sankakiri Police

Station, Salem District and Crl.R.C(MD).No.802 of 2023, the petitioner's right

to claim the return of gold biscuits and vehicle is no longer res integra.

Therefore, the petitioner is entitled to get the relief prayed in Crl.M.P.No.4598 of

2018 on the file of the trial Court. Hence, the finding of the learned trial Judge

that the petitioner has not produced any documents to prove ownership is

perverse and hence, this Court is inclined to set aside the same.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

11.It is settled principle that the pendency of the criminal case has not

deprived the complainant/owner of the property, who has nothing to do with the

alleged offence to deal with the property. Even according to the investigating

officer, the petitioner is the owner of the gold biscuits and vehicle. Therefore,

the petitioner is entitled to get back the above said properties.

12.Accordingly, the impugned order passed by the learned Judicial

Magistrate No.6, Trichy, in Crl.M.P.No.4598 of 2018 in Crime No.350 of 2017 in

R.P.No.448 of 2017 dated 05.03.2019, is set aside and this Criminal Revision

Case is allowed with the following terms:

(I)(a). The learned trial Judge is hereby directed

to hand over the two Gold Biscuits weighing about 100

grams and 48 grams, recovered by the investigating

agency after preparing the Panchanama in the

presence of the accused by taking photograph of the

gold biscuits in accordance with the Rule 257 of the

Criminal Rules of Practice, 2019 framed by this Court.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

(I)(b). The petitioner is hereby directed to

furnish the bank guarantee for the value of the gold

biscuits to the satisfaction of the learned Judicial

Magistrate.

(II). The white Shift Car stands in the name of

Amutha Chandrasekar, is hereby directed to handover

to the petitioner with the following conditions:

(II) (a). The learned Judicial Magistrate No.6,

Trichy, is directed to release the vehicle by following

the procedure stated in Rule 257 of the Criminal Rules

of Practice, 2019.

(II) (b). The petitioner should execute an own

bond of sum of Rs.3,50,000/- (Rupees Three Lakhs

and Fifty Thousand Only) to the satisfaction of the

learned Judicial Magistrate No.6, Trichy District.

(II) (c). The petitioner shall furnish an affidavit

of undertaking to the effect that he shall not alienate

the properties in any manner till the disposal of the

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).N0.524 of 2023

case.