Criminal Application (Apl) No.702 of 2014

17th February, 2015

Petitioner Counsel: Mr. P.B. PATIL
Respondent Counsel: Mr. A.K. BANGADKAR, A.P.P.

Cases Cited:
Sunderbhai Ambalal Desai Vs. State of Gujarat,, 2003 ALL MR (Cri) 363 (S.C.)=AIR 2003 SC 638(1) [Para 5,6]

JUDGMENT

JUDGMENT :- Heard learned counsel for the applicant and learned Addl. Public Prosecutor for the respondent/State.

2. Admit.

3. Heard finally by consent.

4. This application has been opposed by learned Additional Public Prosecutor for the respondent/State on the ground that earlier application filed by the applicant for release of stolen valuable property in his favour was rejected by the trial Court and that order of rejection passed on 18th August, 2005 was also confirmed by the Revisional Court on 5th February, 2008 and as such now, no new ground has been made out by the applicant to stake his claim to receive the custody of the stolen valuable property.

5. According to the learned counsel for the applicant, the trial is not proceeding further as the accused persons have consistently remained absent before the Court and as per his instructions, they are also absconding. He submits that in such a case, the complainant is entitled to receive interim custody of the valuable property. For this submission, he places reliance upon the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in AIR 2003 SC 638(1) : [2003 ALL MR (Cri) 363 (S.C.)].

6. It is not in dispute that the trial of the case pending before the Judicial Magistrate, First Class, Malkapur has been stalled because of the consistent absence of the accused persons. It appears that so far no witnesses have been examined by the trial Court. It is also not known as to when this case would be finally disposed of on merits by the trial Court. In such a situation, it would be necessary to consider the aspect of balance of convenience for holding the interim custody of the property, as held in the case of Sunderbhai Ambalal Desai, [2003 ALL MR (Cri) 363 (S.C.)] (supra).

7. On going through the description of the stolen gold and silver articles as appearing in the recovery panchanama under Section 27 of the Indian Evidence Act, I find that prima facie, the gold and silver articles broadly match with the description of alleged stolen articles given in the First Information Report dated 7.4.2002. Then, the trial of the case is pending and it is not known as to when it would be finally over. In such a case, without commenting upon the ownership of the articles, it would be just and proper to release the articles into the custody of the applicant till the trial of the case is over on certain conditions. If such valuable property is allowed to be retained in the custody of the Court, the Court would be required to spend some amount of public money for taking its proper care, which may not be in the interest of public. In such a case balance of convenience would lie in favour of the complainant.

8. In this view of the matter, I find that the application deserves to be allowed and it is allowed accordingly.

9. It is directed that the valuable property as mentioned in the recovery panchanama dated 10.4.2002 be released into the custody of the applicant-complainant on execution of supratnama of Rs.50,000/- on the conditions that the applicant shall not change the nature and character of the property, that the applicant shall produce the property before the Court as and when required by the Court, shall abide by the order of trial Court as regards it's final disposal and shall not dispose it of in any manner till trial of the case is over.

Application allowed.