Criminal Application (APL) No. 499 of 2011

22nd November, 2011

Petitioner Counsel: Mr. S. S. Dhengale
Respondent Counsel: Mr. A. S. Sonare

Cases Cited:
Sunderbhai Ambalal Desai Vs. State of Gujarat, 2003 ALL MR (Cri) 363 (S.C.)=AIR 2003 SC 638 [Para 2,4]
D'damas Jewellery India Pvt. Ltd. Vs. State of Maharashtra and Ors., 2008 ALL MR (Cri) 2127=2008(2) Bom.C.R. (Cri.) 381 [Para 3]

JUDGMENT

JUDGMENT :- By this application under Section 482 of the Code of Criminal Procedure, the applicant prayed to quash and set aside the order dated 05/03/2011, passed by learned Additional Sessions Judge, Yavatmal, below Exh. 1, in Criminal Revision No. 10/2011 and, further prayer to quash and set aside the order dated 30/12/2010, passed by learned Chief Judicial Magistrate, Yavatmal, below Exh. 66 in Crime No. 128/2010. It is grievance of the applicant herein that the property which was owned by him was purchased out of agricultural income namely; household articles belonged to him were seized during the course of inquiry and investigation in connection with the criminal case arising out of crime No. 128/2010, reported at City Police Station, Yavatmal. The learned advocate for the applicant submitted that the police had seized those articles from the possession of the applicant on the alleged ground that these articles were purchased out of stolen amount. It is specific case of the applicant that he is a farmer by profession and the articles were purchased under invoices, copies of which are annexed with the application and, therefore, the seized property produced before the learned trial Magistrate ought to have been returned to the applicant particularly when there was no any other claimant to claim the property pending hearing and final disposal of the criminal case.

2. Learned Advocate for the applicant placed reliance in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in AIR 2003 SC 638 : [2003 ALL MR (Cri) 363 (S.C.)] in order to submit that the Apex Court while considering the powers under Section 451 of the Code of Criminal Procedure, observed, that they shall be exercised expeditiously and judiciously to serve various purposes namely; (1) Owner of the article would not suffer because of its remaining unused or by its misappropriation. (2) Court or the police would not be required to keep the article in safe custody. (3) If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and (4) The jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

3. In other words, it is submitted that discretion ought to have been exercised by the learned trial Magistrate by keeping these principles in mind by directing an appropriate panchnama to be drawn in respect of the articles in order to ensure that the proper care and custody may be ordered pending hearing of the case to prevent the articles from being tampered with or otherwise wasted or destroyed. Learned Advocate for the petitioner also criticized the order passed by the learned Additional Sessions Judge in Criminal Revision on the ground that revision was held not maintainable because, according to revisional Court, the impugned order passed by the learned trial Magistrate was interlocutory. Reference is made to D'damas Jewellery India Pvt. Ltd. Versus State of Maharashtra and ors reported in 2008(2) Bom.C.R. (Cri.) 381 : [2008 ALL MR (Cri) 2127] in order to submit that the order passed in respect of application under Section 457, 452 of the Code of Criminal Procedure can not be considered as an interlocutory order in view of the ruling. Learned APP do not dispute this position but, submitted that the trial Magistrate may be directed to dispose of the case as early as possible.

4. I think, considering the statements as well as rulings cited (supra), it is true that the order passed by the learned Additional Sessions Judge, is unsustainable as the impugned order passed by the learned Magistrate cannot be labelled as interlocutory order in true sense of the term as it is affecting right of the person claiming the property. It can be considered as an interim order. It is necessary in such cases that discretion has to be proper and judicial and not arbitrary because the order passed by the Magistrate is nothing but an interim tentative arrangement pending decision in the criminal case as to possession of the property or right to possession of the seized property. If, there are complicated questions of law, or as to title of the property or right to possession thereof, it would be subject to the decision by the competent Civil Court. However, the learned trial Magistrate is required to decide as to which of the claimant is entitled to possess the seized property pending final decision and after considering the right to possess or claim by the claimant concerned, appropriate, proper and judicial order may be passed keeping in mind principles mentioned by the Apex Court in Sunderbhai Ambalal Desai's case referred above. In these circumstances, the following order is passed.

"ORDER"

(a) Application is allowed.

(b) The impugned orders are quashed and set aside.

(c) The learned trial Magistrate is directed to consider the application afresh in the light of the decision in Sunderbhai Ambalal Desai v. State of Gujarat reported in AIR 2003 SC 638 : [2003 ALL MR (Cri) 363 (S.C.)], and shall also endeavour to dispose of the pending criminal case No. 128/2010, reported at City Police Station, Yavatmal, as expeditiously as possible.

Application allowed.