CMP 2158/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Criminal Misc. Petition No.2158/07 Suresh Mitthalal Shah Versus State of Rajasthan DATE OF ORDER : 29/04/2009 HON'BLE MR. JUSTICE S.P. PATHAK Mr. Prahlad Sharma, for petitioner Mr. N.R. Saran, P.P. *** This petition u/s.482 Cr.P.C. has been filed with the prayer to set aside the orders dt.8/3/07 passed by Additional District & Sessions Judge [Fast Track] No.4, Jaipur City, Jaipur in Revision No.40/07 whereby revision petition filed against the order dt.6/2/07 passed by Additional Chief Judicial Magistrate, Jaipur City, Jaipur in Case No.128/03, has been dismissed upholding the order passed by the Trial Court. Facts in brief are that petitioner lodged an FIR in GRP Police Station, Jaipur on 28.10.02 stating therein that he was doing business in the name & style of Rampratap Katta Jewellers, Parli 31/32, Johari Bazar, Mumbai. In connection with business he had telephonically intimated M/s. Rampratap Katta Jewellers, Jaipur that he was in need of gold biscuits and for that purpose he was CMP 2158/07 [2] sending Suresh Rawal, Dalpat Singh, Jitendra Singh, the above persons took the gold biscuits as per talks between complainant and Jeweller at Jaipur. Subsequently, one of the persons named Jitendra Singh telephoned him that they were being chased by some miscreants. It was also intimated on phone that Dalpat Singh & Suresh were taken by the miscreants with them. It is also alleged in the complaint that complainant intimated on phone that he was lodging FIR in relation to alleged robbery and also about the fact that Suresh Rawal is absconding and his brother intimated that Suresh is not a thief. On the above report, FIR No.301/02 was registered u/s.406 and after completion of investigation, charge sheet was filed against 13 accused u/ss.406, 365, 394, 392, 407, 120B IPC and also u/ss.406, 407, 365, 392, 394 & 120B IPC. After completion of trial, 12 accused have been convicted and sentenced by learned trial court vide order dt.20th January, 2007. During the pendency of trial, application was moved for Supurdagi of gold biscuits which was declined and ultimately the matter came up in revision petition filed before this court bearing No.178/03, Suresh Mitthalal Shah Vs. State of CMP 2158/07 [3] Rajasthan and the same was decided on 1st May, 2003. This Court finding that order in relation to bank guarantee for the purpose of releasing the gold biscuits in favour of petitioner, the order passed by learned trial court was not required and this court while allowing the revision petition, ordered that condition of bank guarantee stands deleted and the goods would be given on Superdagi on furnishing a surety bond of Rs.50 lacs as ordered by the trial court. The trial court was also directed to conclude the trial. It appears that again Misc. Petition No.1618/05, Suresh Mitthalal Shah Vs. State of Rajasthan came to be decided by this court on 28th February, 2006 wherein the grievance was that the trial could not be completed and as the petitioner was only the claimant of gold biscuits and he being a businessman, his capital was blocked. This court while disposing of writ petition ordered that trial be concluded within a period of six months, but, permission to sale the gold biscuits was declined. This order was passed on 28th February, 2006. The petitioner has again now first approached the trial court and the trial court vide order dt.6th February, 2007 refused to grant permission to sale the gold biscuits. The order was challenged before CMP 2158/07 [4] revisional court, but the revisional court also rejected the prayer made by the petitioner in the revision vide order dt.8th March, 2007. Hence, this petition has been filed. It has been the contention of the learned counsel that in the instant case out of 13 accused, 12 have been convicted and their appeals are pending. It is contended that there is no other claimant of the gold biscuits and the same were given to the petitioner on executing a Supurdaginama. It is also contended that conditions of Supurdaginama relating to photographs etc. have already been satisfied and now more than 7 yrs. have passed and the court below have declined permission to sale the gold biscuits for the reason that one of the accused is absconding. It is contended that for indefinite period if capital of the petitioner is blocked then this will effect the business of the petitioner. It is also contended that biscuits were purchased by him after managing finance from other persons. It is also contended that so far as one accused Mr.Babu Singh is concerned, he has gone to Bombay to earn his livelihood and his whereabouts are not known. It is submitted that so far as trial of Babu Singh is concerned, he CMP 2158/07 [5] was driver of the Jeep and recovery was not made from him. Therefore, it was only a technical objection to decline the permission to dispose of the gold biscuits when necessary photographs are already available with the trial court and on Supurdagi biscuits were handed over to him. On the other hand, learned Public Prosecutor contends that since one of the co-accused is yet to be prosecuted, therefore, permission to dispose of the gold biscuits should be declined. I have considered the submissions made before me. It appears that in the present matter by way of filing petition u/s.482 Cr.P.C. permission has been sought by the petitioner who is sole claimant of the gold biscuits to sale the gold biscuits. It cannot be disputed that after trial leaving one accused all have been convicted and sentenced. The facts further reveal that so far as recovery of gold biscuits is concerned, that is not made from the accused Babu Singh. It is also not disputed that gold biscuits were released on previous occasions in favour of the petitioner and now petitioner wants to dispose of gold biscuits. CMP 2158/07 [6] In the case of Prabhakar Vaman Pishe Vs. State of Karnataka [2001 CRI.L.J.-3568] it has been observed as under: “That apart, the scientific technology in photography has achieved tremendous progress. Hardly there is any object which can miss the eye of a camera. The present photographic techniques are quite substantially developed. The photo of any object can be taken which could reflect the designs, pattern, character and complexion of the property. The jewellery in this case, of course, could be a subject-matter of photography and by proper photographs from different dimensions, the pattern, character, the facet and the type of the jewellery can be very well taken. The said photographs can be used as a secondary evidence. Therefore, any of the properties which could be a successful subject matter of photography, the photos of which be taken and to be made a part of the record. Even at the time when interim custody is granted. When the accused is absconding, it is indefinite about the probable time frame in which the case could be concluded. The properties be given to the victim or the complainant sans any onerous condition of maintaining status quo more- so when the investigating material or the evidence adduced as the case may be supports the claim of the victim. However, to ensure the proper accountability of the value of the property, necessary indemnity bonds could be taken. Even if the property is not produced, the secondary evidence can be used in evidence and ultimately at the conclusion of trial if it is found that the victim or the complainant is not entitled to possession , the complainant may be directed to pay the value of the property. In order to ensure the assessment of the proper value, due care should be taken by the trial Courts in getting the value of the property properly assessed and necessary indemnity bonds to be taken from the victim or complainant if necessary with sureties for recovery of the value. CMP 2158/07 [7] In the result, the petition is allowed. The condition regarding maintaining the status quo by the trial court is hereby relaxed. However, the trial Court is directed to get the necessary photographs of the properties M.Os. 1 to 16 taken and its value assessed. To the extent of the value, necessary indemnity bonds be taken from the petitioner with one surety and the photographs so taken should be kept in file and the same to be used as secondary evidence in the course of trial when the absconding accused are arrested and face trial. The Registry is directed to circulate the copy of the order to all the subordinate Courts and also to place this order before the Hon'ble Chief Justice for his Lordship's consideration to bring about necessary amendments to criminal Rules of practice in this regard.” From the facts of above case, it appears that the matter was relating to a theft of gold ornaments and the present matter is also relating to permission sought by the petitioner to dispose of gold biscuits in a criminal case. After having considered the entire facts and finding that other accused have already been convicted and recovery of gold biscuits have not been made from the absconding accused Babu Singh, therefore, I deem it proper to grant permission to the petitioner to dispose of gold biscuits, if he so desires, which are already in Supurdagi under the orders of the court. The trial court CMP 2158/07 [8] during the course of trial may get photographs of gold biscuits exhibited at the time of recording evidence which are available with the court as at the time of passing order of Supurdaginama by the court condition was imposed to produce the photographs of the gold biscuits. In the result, the misc. petition is allowed. The order passed by the court below dt.6th February, 2007 & 8th March, 2007 are hereby set aside. Petitioner shall be free to sale the gold biscuits, if he so desires, which are already on Supurdagi with the petitioner. The learned trial court in the subsequent trial get the photographs of gold biscuits exhibited on tendering the same in evidence by the prosecution. [S.P. PATHAK], J. FRBOHRA2158CMP07 29-4.doc