P. Gandhimathi vs State, Inspector of Police

S. Vimala, J.—The order passed by the XVI Metropolitan Magistrate, George Town, Chennai, in M.P. No. 412 of 2013 in C.C. No. 420

of 2013, dated 14.02.2013, is under challenge before this Court. The petitioner herein filed an application u/s 451 Cr.P.C., for return of the case

property being the gold ingot weighing about 40 grams. The learned Magistrate has chosen to dismiss the petition even though the respondent has

expressed endorsement of no objection for return of the property.

A perusal of the order, dated 13.03.2013, passed in M.P. No. 412 of 2013 reveals that the petition has been dismissed on the following two

grounds, viz., (i) the case property produced before the Court do not tally with the property alleged to have been stolen from the de-facto

complainant and (ii) there is no document to establish that the complainant is the owner of the property. This dismissal is under challenge in this

revision petition.

Learned counsel for the revision petitioner submitted that the lower court ought not to have expected the proof for identity of the property

between the one produced before the Court and the one which is alleged to have been stolen, because the property alleged to have been stolen is

admittedly melted and produced in the form of ingot; connecting the chains and the ingot, there is a, confession statement of the accused, where-

under the statement is that the chains were snatched from the de-facto complainant and later on, it has been melted and it is in the form of ingot

now and therefore, the Court cannot expect clear proof for the identity of the property; what was stolen was two gold chains and what was

produced before the Court is ingot and in between, the process of melting has taken place; the lower court has not taken note of the inter-se

process involved and has chosen to dismiss the petition.

Had the movable property like the gold chains had been of recent purchase, one can expect documents like receipt. But when the movables had

been purchased long tine back, one cannot expect any full proof documents. The prima facie proof available before the Court is that, immediately

after the chain snatching incident, the de-facto complainant has made a complaint before the police stating that the gold chains have been stolen.

Subsequently, based on the allegations made in the complaint, the accused has been arrested and a confession statement has been recorded. Even,

according to the prosecution, in the confession statement, the accused has made an admission that the chain snatched was made as an ingot (by the

purchaser of the stolen chain). Therefore, the Court ought not to have dismissed the petition on the ground that there is no proof for the ownership

of the property.

Learned counsel for the revision petitioner has produced the decision reported in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of

Gujarat, by the Honourable Supreme Court, where-under, the necessity of passing orders on the petition u/s 451 Cr.P.C., expeditiously and

judiciously has been impressed upon. The relevant observation, in paragraphs 11 to 14 of the judgment cited supra, are as follows:-

Valuable Articles and Currency Notes

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 u/s 451 Cr.P.C. at the earliest.

For this purpose, if material on 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 would be produced if required at the time of trial; and

(3) after taking proper security.

For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided u/s 451 Cr.P.C. The

bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such

articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it

would he the function of the Court under. Section 451 Cr.P.C. to impose any other appropriate condition.

In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its

claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would

be open to the SMO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced

before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating

Officer for further investigation and identification. However, in no set of circumstances the Investigating Officer should keep such articles in custody

for a longer period for the purpose of investigation and identification........

Considering the aforesaid circumstances, this Court is inclined to set-aside the order passed by the learned Magistrate and allow this Criminal

Revision Petition.

Learned Government Advocate (Criminal Side) insisted for the suitable conditions being imposed so as to secure the property, if it is required at

the time of trial.

The submission made by the learned Government Advocate (Crl. Side) merits acceptance and the learned Magistrate is directed to return the

property with the following conditions:-

(i) to prepare detailed proper panchnama of ingot;

(ii) to take photographs of ingot and a bond that such articles would be produced if required at the time of trial; and

(iii) to take proper security;

(iv) the complainant shall file an affidavit before the lower court giving en undertaking that she will not tamper with the physical features of the

property and also that, she shall not sell or pledge the property till the trial is over

(v) the de-facto complainant shall also execute a bond for a sum of Rs. 2,00,000/- (Rupees two lakhs only), which will represent the value of 40

grams of the ingot.

8.1. It is also open to the trial court to impose any other appropriate condition, as it deeps fit, depending upon the stage of investigation.

With the above observations, this Criminal Revision Case stands allowed.