Kaberi Bhattacharya vs State

Madhumati Mitra, J

This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioner Smt. Kaberi Bhattacharya challenging the impugned order dated 9th March, 2018 passed in connection with Sessions Trial No. 2(1) of 2018. The present petitioner is facing trial for commission of an offence punishable under Section 302/34 of the Indian Penal Code pending before the Learned Additional Sessions Judge, 9th Court, Alipore, South 24 Parganas.

During the pendency of the trial, the petitioner filed an application before the learned trial court seeking a direction upon the Investigating Officer of the case for a report regarding retention of the key of the house at 48/C, Fakir Para Raod, Police Station Parnashree, Kolkata - 700034.

From the materials placed on record as well as the submission made by the learned advocate appearing for the parties, it appears that the person who had been murdered was none but the mother of the present petitioner. On the basis of the prayer of the petitioner the learned trial judge called for the investigating officer and heard him in connection with the prayer of the present petitioner. From the impugned order, it appears that the present petitioner is the daughter of the victim lady and the property in question belonged to the father of the accused petitioner.

The learned Trial Judge after considering the submission made by the learned Public Prosecutor in charge who is conducting the trial before the learned court below was pleased to reject the prayer of the petitioner on the ground that if the petitioner is allowed to reside in the house in question before completion of evidence then there is every possibility of gaining over of the prosecution witnesses who are yet to be examined.

The impugned order has been assailed by the learned advocate appearing for the petitioner mainly on the ground that the I. O. has no power to seize any immovable property under Section 102 of the Code of Criminal Procedure.

In support of his contention, learned advocate appearing for the petitioner has placed his reliance on the report of Justice V. S. Malimath Committee as well as the decision of Sudhir Vasant Karnataki V. State of Maharashtra reported in 2010 SCC OnLine Bom 1808 and another reported in 2018 SCC OnLIne Bom 625: (2019) 1 Bom 629 ( Jaya Talakshi Chheda V. Tanuja Jayantilal Bhagat.

On the other hand, learned Public Prosecutor appearing for the State of West Bengal opposes the prayer of the petitioner on the ground that the learned Trial judge rejected the prayer of the petitioner for the time being as the trial is continuing and the private witnesses are yet to be examined. During the course of hearing, learned Public Prosecutor appearing for the State has drawn the attention of the court to the provision of Section 25 of the Hindu Succession Act, 1956 and submitted that the petitioner is facing trial for the murder of her own mother and she would be disqualified to inherit the property if she is convicted.

Learned advocate appearing for the opposite party no. 2/de facto complainant has strongly objected the prayer of the petitioner and has tried to impress upon the court by drawing attention of this court to Section 102 of the Code of Criminal Procedure and submitted that the Investigating Officer has every authority to attach the immovable property in connection with an investigation. He has contended that in the instant case the alleged offence was committed at the residence in question. He has further contended that most of the prosecution witnesses reside in and around the locality where the property in question is located. If the petitioner is given possession of the residence at this stage that is before conclusion of the evidence of the prosecution witnesses then there may be the possibility of the witnesses being gained over. The question of disqualification of the petitioner to inherit the property in question cannot be dealt with at this stage. But the fact remains that the petitioner is facing trial for commission of murder of her own mother and the alleged offence was committed in the property in question and the learned Trial Judge having regard to the submissions made by the learned Public Prosecutor and considering the entire factual situation rejected the prayer of the petitioner for the time being as the examination of prosecution witnesses is going on.

I do not find any reason to interfere with the impugned order passed by the learned trial judge as there is no infirmity in the impugned order.

The revisinal application CRR 1399 of 2018 is devoid of merit and stands dismissed.

The copy of the case diary produced in court has been handed over to the learned Public Prosecutor.

Certified copy of this order be immediately made available to the parties subject to compliance with all requisite formalities.