As far as respondent No.1 is concerned, it may be stated here
that it is the case of respondent No.1 itself that the seized property
mentioned in the petition belongs to the petitioner. The whole case of
prosecution is based on recovery of the property, which according to the
prosecution, belongs to the petitioner.
8. In view thereof, it was not necessary for the learned Magistrate
to ask for production of documents in respect of the ornaments claimed by
the petitioner. The learned Magistrate should have taken note of the legal
position that the custody, if any, would have been an interim custody subject
to final order of the Court to be passed under Section 452 of the Code of
Criminal Procedure at the conclusion of trial.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.538 OF 2012
Smt. Alka Shivram Fating VState of Maharashtra,
CORAM : M.L. TAHALIYANI, J.
DATED : 4th JANUARY, 2013.
1. Heard learned Counsel Mr. K.B. Zinjarde for the petitioner and
learned Additional Public Prosecutor Mr. S.S. Doifode for respondent No.1.
2. Rule. Rule returnable forthwith. Heard finally by consent of
learned Counsel for the parties.
3. The petitioner claims to be the owner of part of the property
seized by police during the course of investigation of Crime No.130/2012 of
Hudkeshwar Police Station, Nagpur. The investigation of the case started
from recording of First Information Report of Vipin Shivram Fating, aged 36
years. Vipin Fating was staying at Plot No.13, Old Subhedar Extension,
Behind Kamble Nursing Home, Nagpur24 along with his family members.
The alleged incident had occurred on 5th July, 2012 in the afternoon. The
complainant Vipin Fating and his wife were out. His son had gone to School.
His grandfather Mansaram Tulshiram Barjurkar, aged about 82 years, his
maternal aunt Smt. Lata Rambhau Shaniware, aged about 50 years and
daughter Adhira, aged about 9 months were at home. The incident had
occurred during the course of the day. It is the case of prosecution that
respondent No.2 Lata, who is real sister of petitioner Smt. Alka Fating, was
staying with the complainant at above said address. It may be stated here
that the petitioner is mother of complainant Vipin Fating. During course of
the day, theft of valuable ornaments worth Rs.3,70,000/ had taken place.
First Information Report was recorded against unknown persons.
4. During course of investigation, it was revealed that respondent
No.2 had committed theft of the property. The property has been recovered
by the police during the investigation. Part of the property recovered by the
police is claimed by the petitioner and rest of the property is claimed by
daughterinlaw of the petitioner, who is the petitioner in Criminal Writ
Petition No.539/2012. The chargesheet has been filed and an application
was made by the petitioner for grant of custody of seized ornaments during
the pendency of trial. The petitioner claimed 4 Gold Bangles weighing 70
grams and 2 Bentex Bangles weighing 55 grams. It may be stated here that
Bentex Bangles are not made of pure gold. The petitioner stated in her
application that the value of property was about Rs.2,00,000/. The learned
Magistrate after hearing the petitioner and Investigating Officer rejected the
application on the ground that the description of the property seized by the
police did not tally with the property claimed by the petitioner and that the
petitioner had not been able to produce documents in support of her claim.
5. The petitioner filed the revision application before the Sessions
Court. The learned Sessions Judge while disposing of Criminal Revision
Application No.325/2012 took the similar view and rejected the revision
application.
6. The learned Counsel Mr. K.B. Zinjarde is heard on behalf of the
petitioner. Learned Additional Public Prosecutor Mr. S.S. Doifode is heard on
behalf of respondent No.1. Respondent No.2, who is accused in the charge
sheet before the trial Court, was later on added as respondent No.2 and has
been served. She has chosen to remain absent. It can, therefore, safely be
said that she does not want to oppose the claim of the petitioner for custody
of property during the pendency of trial.
7. As far as respondent No.1 is concerned, it may be stated here
that it is the case of respondent No.1 itself that the seized property
mentioned in the petition belongs to the petitioner. The whole case of
prosecution is based on recovery of the property, which according to the
prosecution, belongs to the petitioner.
8. In view thereof, it was not necessary for the learned Magistrate
to ask for production of documents in respect of the ornaments claimed by
the petitioner. The learned Magistrate should have taken note of the legal
position that the custody, if any, would have been an interim custody subject
to final order of the Court to be passed under Section 452 of the Code of
Criminal Procedure at the conclusion of trial.
9. For all these reasons, I pass the following order.
Criminal Writ Petition is allowed.
The orders passed by the Courts below are set aside.
The property mentioned in the petition i.e. 4 Gold Bangles
weighing 70 grams and 2 Bentex Bangles weighing 55 grams worth about
Rs.2,00,000/ shall be released to the petitioner by the trial Court on
execution of her Personal Bond of Rs.2,00,000/ with following conditions.
(i) She will not change the description of property.
(ii)She will not dispose of the property or part with the
property in any manner without prior permission of the trial Court.
(iii)She shall produce the property as and when required by the
trial Court during the course of trial.
Rule is made absolute in above terms.
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that it is the case of respondent No.1 itself that the seized property
mentioned in the petition belongs to the petitioner. The whole case of
prosecution is based on recovery of the property, which according to the
prosecution, belongs to the petitioner.
8. In view thereof, it was not necessary for the learned Magistrate
to ask for production of documents in respect of the ornaments claimed by
the petitioner. The learned Magistrate should have taken note of the legal
position that the custody, if any, would have been an interim custody subject
to final order of the Court to be passed under Section 452 of the Code of
Criminal Procedure at the conclusion of trial.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.538 OF 2012
Smt. Alka Shivram Fating VState of Maharashtra,
CORAM : M.L. TAHALIYANI, J.
DATED : 4th JANUARY, 2013.
1. Heard learned Counsel Mr. K.B. Zinjarde for the petitioner and
learned Additional Public Prosecutor Mr. S.S. Doifode for respondent No.1.
2. Rule. Rule returnable forthwith. Heard finally by consent of
learned Counsel for the parties.
3. The petitioner claims to be the owner of part of the property
seized by police during the course of investigation of Crime No.130/2012 of
Hudkeshwar Police Station, Nagpur. The investigation of the case started
from recording of First Information Report of Vipin Shivram Fating, aged 36
years. Vipin Fating was staying at Plot No.13, Old Subhedar Extension,
Behind Kamble Nursing Home, Nagpur24 along with his family members.
The alleged incident had occurred on 5th July, 2012 in the afternoon. The
complainant Vipin Fating and his wife were out. His son had gone to School.
His grandfather Mansaram Tulshiram Barjurkar, aged about 82 years, his
maternal aunt Smt. Lata Rambhau Shaniware, aged about 50 years and
daughter Adhira, aged about 9 months were at home. The incident had
occurred during the course of the day. It is the case of prosecution that
respondent No.2 Lata, who is real sister of petitioner Smt. Alka Fating, was
staying with the complainant at above said address. It may be stated here
that the petitioner is mother of complainant Vipin Fating. During course of
the day, theft of valuable ornaments worth Rs.3,70,000/ had taken place.
First Information Report was recorded against unknown persons.
4. During course of investigation, it was revealed that respondent
No.2 had committed theft of the property. The property has been recovered
by the police during the investigation. Part of the property recovered by the
police is claimed by the petitioner and rest of the property is claimed by
daughterinlaw of the petitioner, who is the petitioner in Criminal Writ
Petition No.539/2012. The chargesheet has been filed and an application
was made by the petitioner for grant of custody of seized ornaments during
the pendency of trial. The petitioner claimed 4 Gold Bangles weighing 70
grams and 2 Bentex Bangles weighing 55 grams. It may be stated here that
Bentex Bangles are not made of pure gold. The petitioner stated in her
application that the value of property was about Rs.2,00,000/. The learned
Magistrate after hearing the petitioner and Investigating Officer rejected the
application on the ground that the description of the property seized by the
police did not tally with the property claimed by the petitioner and that the
petitioner had not been able to produce documents in support of her claim.
5. The petitioner filed the revision application before the Sessions
Court. The learned Sessions Judge while disposing of Criminal Revision
Application No.325/2012 took the similar view and rejected the revision
application.
6. The learned Counsel Mr. K.B. Zinjarde is heard on behalf of the
petitioner. Learned Additional Public Prosecutor Mr. S.S. Doifode is heard on
behalf of respondent No.1. Respondent No.2, who is accused in the charge
sheet before the trial Court, was later on added as respondent No.2 and has
been served. She has chosen to remain absent. It can, therefore, safely be
said that she does not want to oppose the claim of the petitioner for custody
of property during the pendency of trial.
7. As far as respondent No.1 is concerned, it may be stated here
that it is the case of respondent No.1 itself that the seized property
mentioned in the petition belongs to the petitioner. The whole case of
prosecution is based on recovery of the property, which according to the
prosecution, belongs to the petitioner.
8. In view thereof, it was not necessary for the learned Magistrate
to ask for production of documents in respect of the ornaments claimed by
the petitioner. The learned Magistrate should have taken note of the legal
position that the custody, if any, would have been an interim custody subject
to final order of the Court to be passed under Section 452 of the Code of
Criminal Procedure at the conclusion of trial.
9. For all these reasons, I pass the following order.
Criminal Writ Petition is allowed.
The orders passed by the Courts below are set aside.
The property mentioned in the petition i.e. 4 Gold Bangles
weighing 70 grams and 2 Bentex Bangles weighing 55 grams worth about
Rs.2,00,000/ shall be released to the petitioner by the trial Court on
execution of her Personal Bond of Rs.2,00,000/ with following conditions.
(i) She will not change the description of property.
(ii)She will not dispose of the property or part with the
property in any manner without prior permission of the trial Court.
(iii)She shall produce the property as and when required by the
trial Court during the course of trial.
Rule is made absolute in above terms.
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