Thursday 15 December 2022

Whether the court can permit test identification parade of seized property after it was released on Supratnama?

 It has been submitted that briefly the allegations are that the Contractor/consigners-Jai Mata Di Logistics Pvt. Ltd. was carrying the gold, diamond and silver articles and a robbery was conducted. During the course of the investigations, recovery was effected. Pursuant to the recovery been effected an application was moved by Sh. Sunil Kumar, Proprietor of Jai Mata Di Logistics Pvt. Ltd for release of the articles. The State gave its no objections on the basis of which learned ACMM-01 vide order dated 13th September, 2022 ordered for release of the articles subject to certain conditions as contained in order dated 13th September, 2022. {Para 3}


4. On 30th September, 2022, the State moved an application for conducting TIP of the case property. This application was rejected by the learned MM inter alia on the ground that once the articles have been ordered to be released to the person who was in lawful custody of the articles, there is no reason whatsoever for identification of the articles.

11. The judicial TIPs are conducted under Section 9 of the Indian Evidence Act, 1872. It is a settled proposition that the TIP is not a substantive piece of evidence and it is only a relevant fact which is taken into the account during the appreciation of the evidence.


12. This Court is of the considered opinion that investigating agency, unless found to have committed some illegality should be given a free hand for the purpose of conducting the investigation. Investigating officers or their supervisory officers are expected to take the best decision for the purpose of ensuring that the guilty persons are brought to the book and justice is dispensed to the complainant.


13. Perusal of the order of the learned MM dated 30th September, 2022 indicates that even learned MM was of the view that the application for TIP should have been moved earlier. This might have been a slip on the part of the IO but for this the right of the investigating officer to get the TIP conducted cannot be taken away.


14. Thus, I consider that the order of the learned MM and learned ASJ denying the right to conduct the TIP is not in accordance with law. Hence, the order dated 30th September, 2022, 21st November, 2022 and 26th November, 2022 are bound to be set aside, however the order dated 13th September, 2022 is to be given effect immediately without any further delay.

 IN THE HIGH COURT OF DELHI

Crl. M.C. No. 6494/2022 and CM Appl. 25282/2022

Decided On: 02.12.2022

State (NCT of Delhi)  Vs.  Sunil Kumar

Hon'ble Judges/Coram:

Dinesh Kumar Sharma, J.

Citation: MANU/DE/4940/2022

1. The present petition has been filed for the following prayers:


"Quash and/or modify the impugned orders dated 13.09.2022, 30.09.2022 and 21.11.2022 passed by Ld. ACMM-01 (Central), Ld. MM Mahila Court-04, Central and MM-06 (C) respectively and order dated 26.11.2022 passed by Ld. ASJ (02) Central, Tis Hazari Courts, Delhi in FIR no. 402/22 under Sections 92/394/506/34 IPC, PS Paharganj"


2. Learned Standing Counsel for the State submits that initially a case FIR No. 402/2022 was registered under Sections 392/394/506/34 IPC PS Paharganj.


3. It has been submitted that briefly the allegations are that the Contractor/consigners-Jai Mata Di Logistics Pvt. Ltd. was carrying the gold, diamond and silver articles and a robbery was conducted. During the course of the investigations, recovery was effected. Pursuant to the recovery been effected an application was moved by Sh. Sunil Kumar, Proprietor of Jai Mata Di Logistics Pvt. Ltd for release of the articles. The State gave its no objections on the basis of which learned ACMM-01 vide order dated 13th September, 2022 ordered for release of the articles subject to certain conditions as contained in order dated 13th September, 2022.


4. On 30th September, 2022, the State moved an application for conducting TIP of the case property. This application was rejected by the learned MM inter alia on the ground that once the articles have been ordered to be released to the person who was in lawful custody of the articles, there is no reason whatsoever for identification of the articles. Learned MM took a view that the articles were ordered to be released upon production of original bills by the consignor. Learned MM was also of the view that the application for TIP had to be moved prior to the order of release of articles and the IO should have raised an objection at the time of reply to the superdari application, if the articles had not been identified. The application was inter alia also dismissed on the ground that it was moved at the belated stage, and may also potentially lead to an inconsistency.


5. Learned MM also inter alia held that in contract of consignment, now it is up to the jewellers/jewellery shop owners, to claim the articles back from the consignor, as the articles were allegedly stolen while being in the custody of the consignor. It was inter alia held that the TIP at this stage, would be an exercise in futility, as the same is now a matter between the consignor and the concerned jewellery shop owners.


6. Learned Standing Counsel for the State states that subsequent another application for TIP was moved which was also dismissed vide order dated 21st November, 2022.


7. The State then invoked the revisional jurisdiction and learned ASJ vide his impugned order dated 26th November, 2022 dismissed the revision petition predominantly on the ground that the recovered stolen articles are easily identifiable through the bills and the photographs which were issued by their respective owners before they were handed over to the consignor for their delivery to their respective destinations. Learned ASJ is of the view that the documents the attested copies of which have been directed to be supplied to the IO can be used for the purpose of identification of the recovered jewellery articles by comparing and matching them with the said documents.


8. The State has assailed the impugned order predominantly on the ground that in many of the bills only weight and value has been given and description of the articles has not be provided. Learned standing counsel has also states that even some of the bills are not supported by photographs. Learned standing counsel has also submitted that a judicial TIP carries more evidentiary value as compared to the panchnama for the purpose of the evidence.


9. Learned counsel for the respondent-Jai Mata Di Logistics Pvt. Ltd has vehemently opposed the revision petition on the ground that conducting of the TIP would in fact damage the case of the prosecution. Learned counsel has also submitted that the consignor is in best position to identify the recovered articles and it would be totally impractical to call 89 different owners for the purpose of identification of the case property. Learned counsel submits that the order dated 13th September, 2022, 21st November, 2022 of learned MM and 26th November, 2022 of learned ASJ needs no interference.


10. Chapter XII of the Cr.PC includes Sections 154 to 176. This chapter deals with the information to the police and their power to investigate. Upon registration of FIR on receipt of information of cognizable offence, the duty of the investigating agency to conduct the investigation commences. It is a settled proposition that the investigation agency has to be given a free hand for the purpose of conducting the investigation except in the cases where there is violation of principle of natural justice or some illegality has been conducted. Except in the exceptional cases, the domain of the investigation remains with the investigating agency.


11. The judicial TIPs are conducted under Section 9 of the Indian Evidence Act, 1872. It is a settled proposition that the TIP is not a substantive piece of evidence and it is only a relevant fact which is taken into the account during the appreciation of the evidence.


12. This Court is of the considered opinion that investigating agency, unless found to have committed some illegality should be given a free hand for the purpose of conducting the investigation. Investigating officers or their supervisory officers are expected to take the best decision for the purpose of ensuring that the guilty persons are brought to the book and justice is dispensed to the complainant.


13. Perusal of the order of the learned MM dated 30th September, 2022 indicates that even learned MM was of the view that the application for TIP should have been moved earlier. This might have been a slip on the part of the IO but for this the right of the investigating officer to get the TIP conducted cannot be taken away.


14. Thus, I consider that the order of the learned MM and learned ASJ denying the right to conduct the TIP is not in accordance with law. Hence, the order dated 30th September, 2022, 21st November, 2022 and 26th November, 2022 are bound to be set aside, however the order dated 13th September, 2022 is to be given effect immediately without any further delay.


15. SI Sanjay Kumar-IO of the investigation undertakes that the TIP shall be conducted positively on or before 15th December, 2022 and the order dated 13th September, 2022 shall be implemented on or before 17th December, 2022.


16. With these observations, the present revision petition along with pending application stands disposed of.


 

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