Shri. C. Srinivasa vs State of Karnataka and Dr. B.S. Manjunath Swamy

Anand Byrareddy, J.—Heard the learned counsel for the petitioner. The learned Government Pleader is directed to take notice for the first respondent. The facts are, the respondent had registered a case in Crime No. 206/2012 against the accused for offences punishable u/s 379 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC for brevity) read with Section 44 of the Mines and Minerals (Regulation and Development) Act, 1957 and had seized an excavator bearing No. EX-70-030082 and a Motor Cycle, Hero Honda Splendor, bearing registration No. KA-09 EU-406. A case was registered on the basis of a complaint filed by the Tahsildar. The accused were released on bail. The petitioner is said to be the owner of the vehicle, namely the Excavator. The petitioner had made an application for release of the vehicle. The Court of the Magistrate rejected the application seeking; interim custody of the vehicle on the footing that it did not have the power to release the vehicle. The same having been challenged by way of a Revision Petition; though the Court has held that the Magistrate would have the jurisdiction to order release of the vehicle, has opined that it is not prudent to release the vehicle in favour of the owner of the vehicle, as it was involved for the second time in such an offence and therefore, has rejected the application. It is in this background that the petitioner is before this Court.

Insofar as the exercise of discretion in the release of property, this Court in the case of K.W. Ganapathy Vs. State of Karnataka, has considered the hardship that would be caused to the owner of the property when the same is detained in custody on the footing that it would have evidentiary value and ought not to be released. In this regard, the reasoning of the court below appears to be that since the vehicle has been used in the commission of the same offence over again, the petitioner has abused the liberty given to him and therefore, would not be entitled to interim custody of the vehicle. Though this is one view of the matter, the fact remains that the property in question would deteriorate since it is left open to the elements, as claimed by the learned counsel for the petitioner and would" fall into disrepair on account of such non-user. Therefore, in order to punish the owner of the vehicle, the property being allowed to deteriorate and degenerate is hardly desirable. This Court in K.W. Ganapathy''s case supra, while dealing with the other aspect that the property may be required as it would have evidentiary value at the trial, has held thus:

The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. Many a time, we find as a routine course, the Courts impose condition of non alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their lawful ownership rights.

Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful, owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.

To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non alienation from exercise of right ownership for unreasonable length of time would be too harsh and one sided, and a non chalant approach towards the victims of crime. It may be that X require the gold jewellery for the purpose of the marriage of his daughter or may be that he may require funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non alienation.

In order to ensure the recovery of value, it is necessary that the trial Court shall take all necessary diligent steps to get the market value of the property, correctly assessed the photography of the property, properly taken depicting all its features and dimensions and before the property is delivered to the interim custody, the photographs have to be certified by the Magistrate. Further necessary bonds and security to be taken from the person to whom interim custody to be given for the value of the property in order to ensure prompt recovery of value from the person to whom interim custody is given. By following the said safeguards, it is no longer necessary to follow the archaic convention of imposing condition of non alienation. After all the Court while passing a judicial order of interim custody is guided by the investigation material and other prima facie material, which support the claim and title of the person to whom interim custody is given. Having once given the interim custody to the person who is supposed to be the owner of the property, depriving him to effectively use and exercise the lawful ownership rights would be unlawful.

In the instant case, the vehicle in question is a car and it has no evidentiary value, it is only required for the purpose of passing final orders u/s 452, Cr.P.C. Therefore, to ensure the recovery of its value, it is suffice only necessary bonds and security is to be taken from the petitioner to recover the value from him in the event of final orders going adverse to him.

In view of the reasons and discussions made above, it was not proper on the part of the trial Court and Sessions Court to have rejected the request of the petitioner more so when he makes out a grievance of accumulating debt liability.

In the light of the above reasoning, if the petitioner is placed on appropriate terms, notwithstanding that the petitioner had misused his liberty in using the said vehicle in committing yet another offence, a stringent term requires to be imposed on the petitioner, that in the event that the same vehicle is found to be used by the petitioner in committing yet another offence, the vehicle shall be seized and may even be sold forthwith at a public auction in order that it is not made available to the petitioner and ensuring that necessary steps are taken insofar as the collection of secondary evidence in identifying the property as observed by this Court in the above decision as regards photographing the vehicle and drawing up a mahazar describing the features of the property, for now the property may be released in favour of the petitioner after obtaining appropriate security for the declared value of the vehicle.

With the above conditions, the petition stands allowed. The petitioner in the meanwhile, is prohibited from disposing of the vehicle in any manner, to any third party during the pendency of the trial.