Patel Vishnubhai Karsanbhai vs State Of Gujarat

Vipul M. Pancholi, J

Rule. Learned APP, Mr.Ronak Raval waives service of notice of Rule on behalf of respondent-State.

This application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, for the following relief/s:

"(A) xxx xxx

(B) YOUR LORDSHIPS be pleased to call for the record and proceedings of Criminal Misc. Application No.956/2019 from the Court of learned 2nd Addl. Sessions Judge, Mehsana;

(C) YOUR LORDSHIPS be pleased to quash and set aside the impugned order dated 05.07.2019 passed by learned 2nd Additional Sessions Judge, Mehsana, in Criminal Misc. Application No. 956/2019 below Exh.1 and further be pleased to handover the muddamal to the applicant;

(D) Pending admission, hearing and final disposal of this application, YOUR LORDSHIPS may be pleased to stay the execution and implementation of the impugned order dated 05.07.2019 passed by learned 2nd Additional Sessions Judge, Mehsana, in Criminal Misc. Application No. 956/2019 below Exh.1 and pass appropriate interim order in the interest of justice;

(D) xxx xxx"

Heard learned advocate Mr.Brahmbhatt for the applicant and learned APP Mr. Ronak Raval for the respondent - State.

Learned advocate for the applicant has submitted that applicant has lodged the FIR being C.R.No.I-174 of 2018 before Langhnaj Police Station for the offence punishable under Sections 395, 397, 120B of the Indian Penal Code. It is further submitted that police has arrested the accused persons and recovered the muddamal from the said accused persons. Thereafter, applicant has applied for handing over the muddamal before the learned Judicial Magistrate First Class, Mehsana. The learned JMFC, Mehsana, after considering report of the concerned police authority, has passed an order to handover the muddamal to the applicant, for which, he has produced relevant material. However, since the pavati of certain muddamal was not there and therefore applicant could not make an application to handover the said muddamal to him.

Learned advocate for the applicant thereafter contended that thereafter charge-sheet came to be filed and the case was committed to the Sessions Court. Therefore, applicant has preferred an application being Criminal Misc. Application No.956 of 2019 under Section 451 of the Code of Criminal Procedure, 1973 before the concerned Sessions Court for handing over the said muddamal. However, though the concerned police officer has given positive opinion that he has no objection if the said muddamal is handed over to the applicant, without appreciating the factual aspect of the case, the concerned Sessions Court has rejected the said application vide impugned order dated 05.07.2019.

Learned advocate for the applicant has, thereafter referred the additional affidavit, which is placed at page 15 of the compilation and submitted that in the said affidavit, applicant has given an undertaking to the effect that in future, if any person raises any claim over the said muddamal, he will obey the order passed by this Court. It is further stated in the said affidavit that till date, nobody has claimed for the muddamal in question. Learned advocate for the applicant, thereafter, referred various undertakings given by the partners of the applicant, which are placed on record at page 18 onwards, whereby they undertake that for the muddamal in question, except applicant and other partners, nobody has raised any claim. Learned advocate for the applicant, thereafter, referred 'No Claim Pursish' dated 28.12.2018 filed by the accused, which is placed at page 13 of the compilation.

Learned advocate for the applicant, therefore, has urged that the order dated 05.07.2019 passed by the concerned Sessions Court be quashed and set aside and the muddamal in question may be handed over to the applicant.

On the other hand, learned APP, relying upon the opinion given by the Investigating Officer, submitted that if the muddamal in question is handed over to the complainant - applicant on certain conditions, he has no objection.

Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it is revealed that the applicant has lodged the FIR being C.R.No.I-174 of 2018 before Langhnaj Police Station for the offence punishable under Sections 395, 397, 120B of the Indian Penal Code against the concerned accused persons. The police authority has arrested the accused persons and recovered the muddamal from the said accused persons. The applicant has, therefore, preferred an application being Criminal Misc. Application No.956 of 2019 under Section 451 of the Code of Criminal Procedure, 1973 before the concerned Sessions Court for handing over the said muddamal. However, the said application came to be dismissed by the concerned Court.

Further, it appears that the partners of the applicant have filed undertakings, wherein it is stated that till today, for the muddamal in question, nobody has raised any claim. Moreover, the concerned Investigating Officer has also opined that if the muddamal in question is handed over to the applicant, he has no objection. It also appears that applicant has also filed an affidavit wherein he has stated that if in future anyone raise claim over the muddamal in question, he will abide by the terms of the order that may be passed by this Court. The concerned accused persons have also given No Claim Pursish before the Concerned Court that they are not claiming that muddamal.

In view of the aforesaid discussion, the application is allowed. The order dated 05.07.2019 passed by learned 2nd Additional Sessions Judge, Mehsana, in Criminal Misc. Application No. 956/2019 below Exh.1 is hereby quashed and set aside and the interim custody of the muddamal in question is ordered to be handed over to the applicant, pending the trial, on the terms and conditions that the petitioner shall :-

(i) submit an application mentioning the number of currency notes as well as stolen articles as stated in the application filed under Section 451 of the Criminal Procedure Code before the Hon'ble District Judge, Mehsana, copy of which is produced on record at Annexure-B at Page No.7 of the compilation;

(ii) file an undertaking on oath before the trial Court that he shall not sell and/or dispose of the stolen articles without prior permission of the Court, which are being handed over to the applicant by the present order till the conclusion of the trial;

(iii) produce the muddamal articles as and when the authority or the Court concerned directs him to do so.

If, the Investigating Officer finds it necessary, Videography of the muddamal articles shall be done. Expenses towards the photographs and the videography shall be borne by the petitioner.

Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/ authority forthwith.