y^ HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I Cri. WI.P. No. 441 of 2008 APPLICANT Mohan Lal Agrawal RESPONDENT iggS3?!g|^ ?"""' :" ' "sr" »':7 VERSUS State of Chhattisgarh Post for pronouncement of ocdecpn _^ -2-2009 Sd/- T.P. Sharma Judge IS£yafc^^,^2. '^fi -!S" "^^'/ —•-a?3'" y y ^ HIGH COURT OF CHHATTISGARH AT BILASPUR IS&lion'bJeMr,T.P.Sharma,J.l Cr.M.P.No. 441 of 2008 APPLICANT VERSUS RESPONDENTS Mohan Lal Agrawal aged about 58 years son of Banshidhar Agrawal, by caste Agrawal, R/o Laluram Colony,City Kotwali, Korba, Tahsil and District Korba (CG) State of Chhattisgarh through the District Magistrate, Korba, Tahsil and District Korba, CG. Mr. Sourabh Sharma counsel for the petitioner. Mr. Ajay Dwivedi, Dy. GA for the respondent/State. PETITION UNDER SECTION 482 OF CODE OF CRIMINALPROCEDURE 1973. (OR D E R (^ .02.2009) This petition is directed against the order dated 22.8.2008 passed by Sessions Judge, Korba in Criminal Revision No. 51/2008 affirming the order dated 14.7.2008 passed by the Chief Judicial Magistrate, Korba in an unregistered application for interim custody of the property. 2. The order is challenged on the ground that the learned court below has committed an illegality by denying the interim custody of the valuabte property including the currency notes to the applicant who is the owner of the same and at whose instance an offence punishable under Section 395 of the Indian Penal Code has been instituted. 3. Heard counsel for the parties and perused the documents available on record including the order impugned. 4. Counsel for the applicant submits that on 9.6.2008 dacoity was committed in the house of the applicant and the dacoits took away the ..£>-"'"'^ /•^••3s!k, currency notes, gold and silver articles, gold rings containing precious stones as well as the other articles. The applicant lodged the report. Charge sheet has been filed before the Chief Judicial Magistrate, Korba in Criminal Case No. 805/2008. The applicant applied for interim custody of the articles under Section 451 of the Code of Criminal Procedure which has been rejected by the Chief Judicial Magistrate, Korba. Against the said order of the Magistrate, revision was preferred before the Sessions Judge, Korba which was also dismissed by the order impugned. 5. It is submitted by the counsel for the applicant that the applicant is the owner of the valuable articles as well as the currency notes taken away by the dacoits from his house. It is further submitted that since the said articles are lying unused there may be every likelihood of there misappropriation and the applicant is also not able to use the same. The applicant is ready and willing to furnish the security bonds for the production of the articles before the Court whenever directed to do so by the Court. It is submitted that the articles belonging to the applicant cannot be retained by the police or the Court. It is submitted that a detailed Panchnama may be prepared which may be used in evidence to establish the factum of dacoity of the alleged articles. Reliance is placed on the decision of the Supreme Court in the matter of Sunderbhai Ambalal Desai v. State of Gujarat in which it has been held that the powers under Section 451 of the Code of Criminal Procedure should be exercised expeditiously and judiciously. Court is required to pass appropriate orders immediately and articles are not to be kept for a long time at Police Station, in any case for not more than 2002 AIRSCW 5301 :i^-"s. %'v fifteen days to one month. The relevant portion of the order reads thus:- 7. In our view, the powers under Section 451, Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. Court or fhe po//ce would not be required to keep the articles in safe custody; 3. If the proper panchnama before handing o\ier 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 ofthe property in detail: and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampehng with the articles. 6. Counsel for the respondent/State submits that it is a serious case of dacoity committed in the house of the present applicant. Currency notes and other valuable gold and silver articles including the ring containing precious stones have been taken away by the dacoits which will be required in evidence. He submits that the said articles may be given to the interim custody of the applicant after their identification in the Court. 7. Section 451 of the Code of Criminal Procedure deals with the interim custody and disposal ofthe property during the pendency ofthe trial when the same are produced before the criminal Court. Section 451 reads as under: "451.0rder for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation. - For the purpose of this section, "property" includes- (a) Property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence." 8. For production of the property before the Criminal Court virtually production of property is not required and control over the property by way of symbolical production would be sufficient for exercising the powers under section 451 of the Code of Criminal Procedure. In accordance with Section 102 of the Code of Criminal Procedure the police officer is competent to seize the property which may be alleged or suspected to have been stolen or which may be found under such circumstances which creates suspicion for commission of any offence and the police officer is required to report the seizure forthwith to the Magistrate having jurisdiction. When seizure is reported to the Magistrate, the property shall be deemed to have been produced before the Magistrate symbolically and then the Magistrate is competent to exercise the jurisdiction under Section 451 of the code of criminal procedure. Admittedly the property seized is required only for evidence with a view to establish the case of the prosecution. While dealing with the question of interim custody of the property in the matter of Sunderbhai Ambalal Desai (supra) it has been held by the Supreme Court that the police should not retain the property for a long time and the owner of such property would not suffer because of its remaining unused or by its misappropriation. While dealing with the same question in the matter of Smt. Basavva Kom Dyamangouda Patil v. State of Mysore and another, in which it has been held by the Supreme Court that the property which has been the subject matter of an offence is seized by the police, ought not to be retained in the custody of the Court or the Police for any time longer than what is absolutely necessary. Relevant portion reads as under: "The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matfer ofan offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entmstment of the property to a Govemment servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be retumed to the owner. In the first p/ace it may be returned during any inquiry or trial. 777/s may particularly be necessary where the property concemed is sought to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest ofjustice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Cocfe /s that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court eifher directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a chminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the Police Officers in every case where it has taken cognizance." 9. In the instant case the property has been seized at the instance of accused Ajay Chouhan, Anand Ram and Biren alias Biran Singh. Order dated 14.7.2008 passed by the Chief Judicial Magistrate shows that no opportunity of hearing has been provided to the persons at whose instance the property has been recovered. Revisional Court has (1977) 4SCC 358 also not afforded the opportunity to these persons before passing the order. At this stage it is not possible to infer that the persons from whose possession the property has been recovered will not claim their right over the same. 10. In case of interim custody of the property under the provisions of Section 451 ofthe code of Criminal Procedure the Court is required to satisfy itself that the claimant is the owner of the property or the person best entitled for possession of the same and after preparing detailed panchnama in presence of the applicant and the persons facing accusation which may be used in evidence, property may be given in interim custody of the applicant or the person best entitled for its possession on furnishing security or bond with or without surety with a condition to produce the same as and when directed by the Court. In the instant case the property has not been deposited by the police in the Court. Court has also not provided an opportunity of hearing to the accused persons and the application has been dismissed only on the ground that the property may be required at the time of evidence. 11. For the foregoing reasons, l am of the view that the order impugned is not sustainable and accordingly the same is set aside. The court before which the case is pending is directed to consider the application if filed on behalf of the applicant for interim custody of the property after affording an opportunity of hearing to the applicant as also to the persons at whose instance the property was recovered and decide as to who is the owner of the property or the person best entitled for possession of the same after preparing detailed panchnama and the photographs of the property, if necessary, which may be used in evidence and pass the order of interim custody of the property.. '.••!s2ts!>, '9 I ^ ^ 'ha»<?". ,<^ '^ 12. It appears that the charge sheet has been filed and if during the course of hearing on the application the trial has already commenced, it would be preferable to examine the witnesses of seizure and identification and pass the order afresh regarding interim custody of the property. • Sd/- 13. Aecordingly, the petition is disposed of. Judge