Friday, 10 May 2013

Whether magistrate can release gold ornaments on supratnama in the absence of documentation in respect of it?

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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