1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APL) NO. 483 OF 2011 KU. SEJAL D/O SANJAY DHOLE ..VERSUS.. STATE OF MAHARASHTRA THROUGH P.S.O., P.S., KARANJA GHATGE, DIST. WARDHA AND ANR. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. -------------------------------------------------------------------------------------------------------------------------------------------- Mr. V. D. Muley, Advocate for the applicant. Mr. M. J. Khan, A.P.P. for non-applicant no.1/State. None appears for non-applicant no.2, though served. CORAM : PRASANNA B. VARALE, J. DATED : 28 th SEPTEMBER , 2011 . Heard Mr. V. D. Muley, the learned counsel for the applicants and Mr. M. J. Khan, the learned A.P.P. for non- applicant no.1/State. By this criminal application, the applicant nos.1 and 2, who are minors and under the guardianship of applicant no.3 – Smt. Pushpa Bhaurao Khuje, their grandmother, are challenging condition no.7 of the order dated 11.05.2011, passed by the learned Judicial Magistrate, First Class, Karanja (Ghadge) in Crime No.172/2010 and further direction to release the household articles. The brief facts giving rise to this criminal application are as follows : The father of applicant nos.1 and 2 namely Sanjay Dhole has been charged for the offence under Section 302 of Indian Penal Code vide Crime No. 172/2010 registered at Police Station, Karanja (Ghadge), for setting his wife namely Anita on fire by poring kerosene. The said incident took place in the official accommodation of Anita Dhole, who was working 2 as a Staff Nurse and was residing in Quarter No. 215, allotted by Primary Health Center, Karanja (Ghadge). The said quarter, where the incident took place, was sealed by the police machinery. An application under Sec.457 of Code of Criminal Procedure, dated 04.03.2011, came to be filed by the applicants before the learned J.M.F.C. seeking release of the household articles and other things, sealed in the quarter, on supratnama. It was stated in the application that from the date of the incident, applicant nos.1 and 2, the minor girls of the victim, deceased Anita, are residing with applicant no.3 i.e. their grand mother at NIT Quarter No.B-4/45, Binaki Layout, Nagpur. It was further stated in the application that the household articles and certain other things i.e. the books, documents, food grains, which are perishable articles and the other domestic articles necessary for the minor girls, are kept in the said quarter and a request was made to release those articles. The learned Magistrate, by order dated 11.05.2011, allowed that application on certain conditions. Out of those conditions, the applicants are aggrieved by condition no.7, by which the learned Magistrate has directed applicant no.3, being the guardian of applicant nos.1 and 2, to furnish Supratnama of Rs.10,00,000/-, a solvent surety in the sum of Rs.5,00,000/- and Bank Guarantee to the tune of Rs.1,00,000/- for releasing the said articles. Therefore, the applicants are before this Court. Mr. Muley, the learned counsel for the applicants has submitted that the applicants have no grievance in respect of the other conditions including the direction to the police authorities to prepare a list and inventory of the articles, verify the golden and silver articles from the Valuer, approved by the Government, classify the articles and prepare a list with photographs of the articles and assessment of value of the 3 articles. The grievance is about condition no.7 only. The learned counsel for the applicant has submitted that the said condition is a burdensome condition, which the applicant no.3 is unable to comply with. He states that the applicant no.3 is a retired teacher and a senior citizen, aged about 60 years. He further states that in view of the fact that applicant nos.1 and 2, who are minors and have lost their mother, are now under the guardianship of applicant no.3 i.e. their grand mother, are desirous of receiving the household articles as well as golden and silver ornaments of deceased Anita and non-compliance of the condition no.7 would result in denial of the request, which is otherwise reasonable and would cause prejudice to the applicants. The learned counsel further states that the quarter at Karanja (Ghadge) is a Government accommodation and the applicant nos.1 and 2 are not interested in residing in the said quarter as they are residing with their grand mother i.e. applicant no.3. The learned counsel, therefore, prayed for allowing the application. Per contra, Mr. Khan, the learned Additional Public Prosecutor for the non-applicant/State has fairly submitted that he has no objection to release the household articles and golden and silver ornaments of the deceased, but as there are certain other things also in the said quarter i.e. LIC policies as well as Sale Deeds of certain immovable properties, a reasonable apprehension is expressed that if the immovable properties are alienated or a third party interest is created, that will certainly cause hurdle to the interest of the minors. The learned APP has further submitted that there is a Will dated 09.11.2010, made at Suretech Hospital, Dhantoli, Nagpur, while victim Anita was under treatment. In the said will, victim Anitam has expressed that her brother Nilesh and sister Pooja, would take care of her minor daughters. There is 4 also a reference to the immovable properties namely two plots, one situated at mouza Wanadongari, Tah. Hingna, Dist. Nagpur and another at Butibori-Chandrapur road at mouza Dabha. There is also a reference to the two LIC policies and certain amount in bank account and golden and silver articles. Mr. Muley, the learned counsel for the applicants has submitted that the applicant no.3 is ready to submit an undertaking to the effect that no third party interest would be created in respect of the immovable properties, till applicant nos.1 and 2 attain the age of majority. He further submitted that insofar as LIC policies are concerned, applicant no.3 is not a nominee of the police holder and as such, there is no question of any interest of applicant no.3 in those LIC policies. The applicant no.3 is interested in protecting the interest of the minors in respect of those policies till they attain majority. A list of articles is placed on record along with the reply filed by the learned APP for the State. The value of the articles in the bedroom is approx. Rs.38,200/-, the value of the articles in kitchen is approx. Rs.35,550/-, the value of the articles kept in ‘varanda’ is approx. Rs.6,100/- whereas the value of golden and silver articles is approx Rs.1,00,700/-. The other articles kept in the bathroom are worth Rs.4,400/-. Considering the total value of all the articles, which is not worth more than Rs.2,00,000/- lakhs, there is substance in the argument of the learned counsel for the applicants that the condition no.7 of the order dated 11.5.2011 is a very heavy condition and it would be difficult for applicant no.3, the guardian of applicant nos.1 and 2, who is a retired teacher and a senior citizen aged about 60 years, to raise the amount as directed in condition no.7 or to comply with it. As submitted by the learned counsel for the applicants, the applicant no.3 is ready to place on record an undertaking in respect of the 5 immovable property and LIC policies and considering the worth of other articles, in my opinion, a case is made out by the applicants to exercise discretion under section 482 of Cr.P.C. Hence, in the interest of justice as well as in order to protect the interest of minor applicant nos.1 and 2, I proceed to pass the following order :- The criminal application is allowed. Condition no.7 of the order dated 11.05.2011 passed by the learned Judicial Magistrate, First Class, Karanja (Ghadge) on the application dated 04.3.2011 filed by the applicants in Crime No.172/2010, is hereby modified. Applicant no.3, being guardian of minor applicant nos. 1 and 2, is directed to submit an undertaking before the learned Judicial Magistrate, First Class, Karanja (Ghadge), within a period of two weeks from the date of this order that no third party interest will be created in respect of the immovable property as referred to above and the other articles of which a list is prepared and annexed to the reply filed by the learned APP be released on presenting Supratnama of Rs.2,00,000/- (Rupees Two lakhs only) and a surety of Rs.2,00,000/- (Rupees two lakhs only). There is no modification or alteration in the other conditions. They shall remain the same. It is made clear that on submitting the undertaking before the learned J.M.F.C., Karanja (Ghadge), the order of this Court would be effected. The criminal application is disposed of in the aforesaid terms. JUDGE Diwale