Madras High Court

S.Tamilarasan vs The Inspector Of Police on 23 April, 2025

                                                                       Crl.R.C.(MD)Nos.1261 and 1315 of 2024

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           Reserved on              : 19.03.2025

                                           Pronounced on            : 23.04.2025

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

                                       Crl.R.C.(MD)Nos.1261 and 1315 of 2024


                    S.Tamilarasan                                                       ... Petitioner in
                                                                                            both the petitions



                                                              Vs.


                    The Inspector of Police,
                    Dhalavaipuram Police Station,
                    Virudhunagar District.
                    (Crime No.119 of 2024)                                             ... Respondent in both
                                                                                           the petitions

                    Common Prayer : These Criminal Revision Cases filed under Sections
                    438 r/w 442 B.N.S.S., to call for the records relating to the impugned
                    orders dated 08.08.2024 made in Crl.M.P.Nos.5088 of 2024 and 5089 of
                    2024 on the file of the learned Judicial Magistrate, Rajapalayam,
                    Virudhunagar District and to set aside the same by allowing the revision
                    petitions.


                    1/14



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                                                                           Crl.R.C.(MD)Nos.1261 and 1315 of 2024



                              (in both the petitions)

                                    For Petitioner         : Mrs.J.Priscilla Pandian

                                    For Respondent         : Mrs.M.Aasha
                                                             Government Advocate (Crl. Side)

                                                     COMMON ORDER

These Criminal Revisions are directed against the orders passed in

Crl.M.P.Nos.5088 of 2024 and 5089 of 2024 dated 08.08.2024 on the file

of the Court of Judicial Magistrate, Rajapalayam, in dismissing the

petitions filed under Sections 451 and 457 of the Code of Criminal

Procedure seeking return of cash of Rs.28,000/- and Rs.2,80,000/- seized

from the petitioner.

2. The petitioner is the first accused in Crime No.119 of 2024 for the

offences under Sections 171(E), 188 and 511 IPC.

3. The case of the prosecution is that when the defacto complainant,

who was the then Zonal Deputy Thasildhar / Election Flying Squad

Officer – 1, 202 - Rajapalayam Assembly Constituency and 37 - Tenkasi

Parliamentary Constituency, Rajapalayam, on 18.04.2024 at about 07.40

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a.m. was on patrol duty nearby Pudhurvilakku 1.5 km south-west side, the

petitioner with two other accused were found in possession of the gift

articles, namely, Exam Pad – 4 Bundles, files, booth slips – 19 bundles,

loose slip, badges, Bharatiya Janata Party (BJP) booth level agent list –

3 Nos., Srivilliputhur Assembly booth agent details, 8 covers each

containing Rs.35,000/- cash with slips and loose amount of Rs.28,000/-,

totalling Rs.3,08,000/- in a Innova Crysta car bearing Registration

No.TN-02-CP-0007 by violating the election rules and they have seized

the above articles and handed over the same to the respondent police and

that on the basis of the said complaint, FIR came to be registered in Crime

No.119 of 2024 for the offences under Sections 171(E), 188 and 511 IPC.

4. It is not in dispute that the above properties were produced before

the jurisdictional Magistrate Court and the same came to be received and

remanded in P.R.No.66 of 2024. It is also not in dispute that the

respondent police, after completing the investigation, has filed the final

report and the learned Magistrate has taken the case on file in S.T.C.No.

6647 of 2024 and is pending on the file of the Judicial Magistrate,

Rajapalayam.

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5. It is also not in dispute that the petitioner has already filed a

petition seeking interim custody of the Innova Crysta car and the learned

Magistrate has also granted interim custody. The petitioner has then

moved two petitions seeking return of cash of Rs.28,000/- and

Rs.2,80,000/- allegedly seized from him and the said petitions were taken

on file in Crl.M.P.Nos.5088 of 2024 and 5089 of 2024. The respondent

police has filed counter statement raising objections. The learned

Magistrate, after enquiry, has passed the impugned orders separately dated

08.08.2024 dismissing the petitions. Challenging the said dismissal orders,

the present revisions came to be filed.

6. The case of the petitioner is that the petitioner is the owner of the

Innova Crysta car, for which, the vehicle permission was granted by the

Election Officer for the election campaign in Tenkasi Parliamentary

Constituency till 17.04.2024, that on 18.04.2024 at about 07.30 a.m., the

petitioner with the help of other accused distributed the payments to the

election booth agents of Rajapalayam and Srivilliputhur Assembly

Constituencies and at about 07.40 a.m., when they reached the place near

Pudhurvilakku, 1.5 km on south-west side, No.202 Rajapalayam Assembly

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Constituency, they possessed the money of Rs.2,80,000/- for distributing

to the remaining election booth agents located in Rajapalayam and

Srivilliputhur Assembly Constituencies, which is permitted under the

election rules, that the petitioner was also having Rs.28,000/- amount for

his own business purposes, that BJP has declared Thiru.B.John Pandian as

their Lok Sabha candidate for Tenkasi Parliamentart Constituency, that the

said John Pandian is the founder of Tamilaga Makkal Munnetra Kalagam,

that the said candidate has opened Savings Bank account bearing No.

41820570420 on 22.03.2024 in his name for the purpose of maintaining

the election account at State Bank of India, Sankarankovil Branch, that the

District Collector / Returning Officer has passed an order dated

16.03.2024 fixing the rate for the commodities, articles including for

distribution of amounts to various election booth agents in Rajapalayam

and Srivilliputhur Assembly Constituencies, that as per the order of the

Returning Officer, maximum amount fixed as daily allowance to election

booth agent is Rs.1,000/-, that the Returning Officer has issued a receipt

for a sum of Rs.13,500/-, which is a security deposit paid by the said

candidate, that the second accused is the car driver and the said candidate

has appointed one Arumughanainar as an additional agent for dealing

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expenditure matter, that the said candidate has withdrawn a sum of

Rs.5 lakhs on 03.04.2024 from his account towards various election

expenditure including for distributing a sum of Rs.2,99,750/- to 262

election booths located at Rajapalayam Assembly Constituency and 283

election booths located at Srivilliputhur Assembly Constituency at the rate

of Rs.550/- to each election booth agent and a total amount of

Rs.2,99,750/- was given by the said candidate to the first accused for

distributing the same to 545 total election booth agents, that the said

candidate has maintained a register right from the date of election

campaign for maintenance of day to day expenditure through the

additional election agent and the said account was properly submitted to

the Returning Officer, Tenkasi District, that the said candidate has

properly mentioned the seizure amount of Rs.1,44,100/- as the expenditure

amount given for distributing 262 election booths located at Rajapalayam

Assembly Constituency and sum of Rs.1,55,650/- for distributing 283

election booths located at Srivilliputhur Assembly Constituency at the rate

of Rs.550/- each, that the petitioner has also given two vouchers dated

17.04.2024 for acknowledging the said amount of Rs.1,44,100/- and

Rs.1,55,650/-, which is attested by the agent of the said candidate and that

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since the respondent police received the case properties from the Election

Flying Squad Officer and produced the same before the jurisdictional

Magistrate Court, the petitioner was constrained to file the above petitions

seeking return of the money.

7. The respondent police in their counter statement filed before the

learned Magistrate Court has stated that a case came to be registered for

violating the election rules and the Election Flying Squad has seized the

articles including cash and handed over the same to the respondent police

and that in case, if the cash property is returned to the petitioner, he will

not produce the same before the Court at the time of trial and the property

in question, being subject to confiscation, cannot be released.

8. 8. The learned counsel for the petitioner would submit that

payments to election agents and for maintaining poll order do not

constitute bribery, and the articles seized do not come under the category

of gifts, making Section 171E IPC inapplicable. Additionally, since the

petitioner never disobeyed a public servant's order, Section 188 IPC does

not arise, and consequently, Section 511 IPC also does not apply.

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9. The learned Government Advocate (Criminal Side) appearing for

the respondent would submit that if the interim custody of the currency

notes is given to the petitioner, he may spent the currency notes and then it

would not serve any purpose and it would hamper the trial, that after

completion of trial, based on its outcome only the ownership of the seized

articles and the currency notes can be determined and as such, interim

custody cannot given to the petitioner as it would affect the trial and that

therefore the petitions are liable to be dismissed.

10. Before entering into further, it is necessary to refer the judgment

of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai Vs. State of

Gujarat reported in 2002 Supp (3) SCR 39,

“The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

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

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Valuable Articles and Currency Notes With regard to valuable articles, such as golden or sliver 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, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.

For this purposes, 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 panchanama of such articles:

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

For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or 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

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be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.”

11. The learned counsel appearing for the petitioner would rely on a

decision of the Hon'ble Supreme Court in Ram Parkash Sharma Vs.

State of Haryana reported in AIR 1978 SC 1282, wherein, the Hon'ble

Apex Court has held as follows:-

“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.”

12. In the present case, the amount was seized from the

petitioner/first accused. The prosecution doesn't allege that the seizure

occurred during voter bribery. According to the petitioner, the seized

amount was for election booth agents, drawn from the candidate's official

election account. The Flying Squad recovered cash, including Rs. 2,80,000

and Rs. 28,000 (claimed as personal business funds), along with BJP

booth agent lists and other documents. As rightly contended by the learned

counsel for the petitioner, they sought interim custody and are ready and

willing to produce case properties if directed by the trial court.

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13. The learned Magistrate, by observing that whether the petitioner

has violated the election rules or not and whether the offences are made

out or not can only be decided at the trial and that if the property is

returned to the petitioner, that might be used/spent by the petitioner, has

chosen to dismiss the petitions.

14. At this juncture, it is necessary to refer the judgment of this

Court in Panneer Selvam Vs. The State of Tamil Nadu, Inspector of

Police, Sivakasi East Police Station and others passed in Crl.R.C.

(MD)No.449 of 2015 dated 10.08.2016, wherein, a learned Judge of this

Court has observed,

“25. But, as on date, all the accused are presumed to be innocent. Trial is pending. They are not convicted. We are not the Trial Court. We cannot prejudge the case. Therefore, whatever said here are made only for the limited purpose of deciding the property return petition. This has nothing to do with the trial of the case.

26. The principles laid down by the Hon'ble Apex Court in Sunderbhai Ambalal Desai (supra) squarely applies to this case. Petitioner can keep the recovered 7 s soverigns of jewels in his possession and he should

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produce them before the Trial Court as and when so ordered by the Court. The cash Rs.14,25,000/- is his money. Simply, asking him to keep the cash and count and see the currency notes will not serve his purpose.”

15. Considering the foregoing facts and circumstances and given the

pending trial and the judgment of the Hon'ble Supreme Court in

Sunderbhai Ambalal Desai's case above referred, the impugned orders

dismissing the petitions for return of money cannot be sustained and the

property in dispute is ordered to be returned to the petitioner subject to

necessary conditions.

16. In the result, these Criminal Revision Cases stand allowed and

the impugned orders dated 08.08.2024 passed in Crl.M.P.Nos.5088 of

2024 and 5089 of 2024 are hereby set aside and the property in dispute is

ordered to be returned to the petitioner for interim custody forthwith on

the following conditions:-