Judgment:
ORDER
Fakhruddin, J.
1. Respondent No. 2 is also present.
2. Heard.
3. Applicant Bharatlal Sahu whose daughter was to be married sold the agricultural land for about Rs. 1,46,000 and he kept the money in his house, theft was committed. He lodged the report regarding the theft of Rs. 1,45,000/-. Offence was registered. During the investigation it was revealed that his son Parmeshwar had committed theft and after committing the theft he handed over it to various persons including respondent No. 2. Certain recoveries have been made. The applicant filed application for releasing the amount recoverd. State alone objected. Even the respondent No. 2 did not raise any objection. Learned Magistrate in its impugned order dated 6-7-2002 has held that prima fade the amount appears to be that of the applicant but the learned Magistrate rejected the prayer on the ground that the applicant has not mentioned in the FIR the numbers of currency notes which bear. Then the applicant filed a revision again for handing over the amount. Here the State again objected through A.G.P. Not only that, the Counsel for respondent No. 2 also objected. The Revisional Court in Para 7 also reiterated the same by observing that the Trial Court in its order has rightly held that the applicant did not give the numbers of currency notes in the FIR. Thereafter, the revision has been filed.
4. This Court heard the matter and recorded a detailed order on 6-1-2003 and time was granted to the State to seek definite instruction from the prosecutor regarding the objection. Then on 8-1-2003, A.G.P. Shri R.D. Rai, A.D.P.O. Shri S.K. Mishra and G.P. Shri Marko appeared and addressed the Court on the question. On that date, the notice was also issued to the respondent No. 2. The respondent No. 2 duly identified remained present through out hearing. He submits that so far as he is concerned, in fact he himself had produced the currency notes before the police and had stated that he has no objection. He had instructed his Counsel to state so. But somehow or the other, his Counsel raised the objection which he never wanted. Respondent No. 2 as well as Shri Rakesh Kashyap, Counsel for respondent No. 2 stated that the respondent No. 2 has no objection and he had given the affidavit to this effect. The original affidavit was shown to him. He states that the affidavit bears his signatures. He again reiterated that the amount may be handed over to applicant.
5. So far as the Supurdnama is concerned, the matter is simple. The applicant had sold the property and he got the amount for the marriage of his daughter. The amount is alleged to have been stolen by his son who kept it in different places. The objection made by the prosecution and the observation made by the Courts below in that respect that number of the notes have not been mentioned in the FIR, prima facie appear to be unnatural and impracticable in the facts and circumstances of the case, because normally persons do not note down the numbers. It is a currency and changes hand to hand. Even otherwise, one does not know as to whether it will be lost in theft and he will be required to make a report. The approach adopted does not appear to be practicable and if such observations are allowed to remain in the order, it may prejudice the trial. They are accordingly expunged.
6. So far as the question of handing over the property to the complainant is concerned, the Hon'ble Supreme Court in a decision Sunderbhai Ambalal Desai v. State of Gujarat, reported in 2002 AIR SCW 5301, has also dealt with the powers of the Court under Section 451 of Cr.PC regarding disposal of the property pending trial. The Hon'ble Court has observed that power under Section 451 should be exercised expeditiously and judiciously and the Court should pass appropriate orders immediately and article are not to be kept for a long time at the police station, in any case, for not more than 15 days to one month. Paragraphs 10 to 12 of the judgment are relevant and quoted below:--
'10. To avoid such a situation in our view, powers under Section 451, Cr.PC should be exercised promptly and at the earliest. Valuable Articles and Currency Notes :
11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451, Cr.PC at the earliest.
12. For this purpose, if material or record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after,--
(1) preparing detailed proper Panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles should be produced if required at the time of trial; and
(3) after taking proper security.'
7. Having considered the facts and circumstances of the present case, material on record and in view of the position of law declared by the Supreme Court in case of Sunderbhai Ambalal Desai (supra), it is directed that the currency notes be handed over to the complainant after preparing detailed proper Panchnama and photographs of such notes and articles. The complainant shall furnish personal bond of the amount being handed over to him to the satisfaction of the Trial Court. This be done at the State expenses and the Court concerned may pass appropriate order in respect of these expenses at the time of final judgment/order regarding the liability to pay or reimburse amount.
Accordingly, this petition and LA. No. 5070/2002 stand disposed of.
Record of the Courts below be sent back with copy of this order.
Copy of this order be also sent to the Trial Court and Revisional Court.
C.C. as per rules.