CRIMINAL PETITION NO. 7105 OF 2022
Star India Private Ltd Vs 7Movierulz TC & Ors
DATE OF ORDER:
2 September 2022
HON'BLE MR JUSTICE M.NAGAPRASANNA
Petitioner: M/S NAMBOOR JEWELLERS
Section 451 of CrPC and its application.
Code of Criminal Procedure, 1973
Section 451- Order for custody and disposal of property pending trial in certain cases.—When any property is produced before any Criminal Court during any 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 purposes 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.
457. Procedure by police upon seizure of property.—(1) Whenever the seizure of property by any policeofficer is reported to a Magistrate under the provisions of this Code, and such property is not produced before aCriminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposalof such property or the delivery of such property to the person entitled to the possession thereof, or if such personcannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on suchconditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall,in such case, issue a proclamation specifying the articles of which such property consists, and requiring any personwho may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
- The petitioner by this petition seeks to challenge and prays for setting aside an order dated 19.01.2022 passed in Crl.R.P.No.32/2020, by the VI Additional District and Sessions Judge, Mysuru which confirmed the order dated 10.11.2020, passed in Crime No.34/2020, by the IV Additional Senior Civil Judge and JMFC, Mysuru, registered for offences punishable under Sections 406 and 420 of the IPC whereby the Ld. Magistrate turned down the application filed by the petitioner u/s 451 and 457 Cr.P.C. seeking inter-alia the custody of gold bullion seized in P.F.No. 31//2020.
- The petitioner claims to be the victim in the complaint registered against Hameed Ali (accused no. 1) which culminated in the FIR in Crime No. 34/2020.
- During the course of the investigation, the police recovered half kg of gold from the petitioner’s shop which was reported before the court as P.F. No. 31/2020.
- The issue in the present petition is not the merit of the case bearing Crime No. 34/2020 but that the petitioner claims to be the victim of the fraudulent transaction undertaken by accused no. 1 hence seeking interim custody of Gold Bullion.
ARGUMENTS BY PETITIONER
- The Ld. Counsel for the petitioner contended that being the victim, the petitioner is entitled in law to interim custody of the gold bullion which in terms of investigation also belongs to the petitioner.
- The reason given by the Ld. Magistrate for rejecting the application is contrary to the judgment of the Hon’ble Supreme Court in SUNDERBHAI AMBALALDESAI v. STATE OF GUJARAT(2002) 10 SCC 283.
ARGUMENTS BY REPONDENTS
- The Ld. High Court Government Pleader appearing on behalf of the respondent/state though admitting that gold (P.F. No. 31/2020) belongs to the petitioner, contends that it cannot be released from police custody until the final disposal of the case and sought dismissal of the present petition.
ANALYSIS BY THE COURT
- The court diligently analyzed the judgment relied upon by the petitioner.
- In the above-mentioned judgment, it was held by the Hon’ble Supreme Court that the powers granted u/s 451 Cr.P.C. should be exercised judiciously and expeditiously. The court laid down the purpose this section sought to achieve. It held that the section aimed to ensure that the owner should not suffer due to non-use or misappropriation of the article.
- Court of police is not required to keep the article in safe custody.
- In paragraph 11 of the above-mentioned judgment, it was stated that in case of valuable articles like gold and silver ornaments, there is no need to keep them in police custody for many years till the trial is over.
- In the light of above judgment, the Hon’ble High Court held that the order of the magistrate is erroneous. The petition was allowed.
The court ordered handing over the interim custody of PF No.31/2020to the petitioner on the following conditions:
- The prosecution was directed to prepare a panchnama of articles
- Photographs of the articles along with the undertaking that such articles shall be produced as and when required during the course of the trial.
- Proper and adequate security shall be taken by I.O.
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