IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3951/2016 BETWEEN:
Smt. Lalitha Patkar Aged about 62 years W/o Devendra Patkar R/a d. no.3-126 C Onthibettu, Anjaru Village Udupi Taluk & Dist.-576 104 …Petitioner (By Sri Nataraja Ballal A., Advocate) AND:
1. The State Hiriadka P.S.
Rep. by Public Prosecutor Udupi Taluk-576 104 2. Ramadas Nayak Aged about 63 years S/o Late Venkatesh Nayak “Manjushree”, Onthibettu Post Hiriadka Udupi Taluk-576 104 ...Respondents (By Sri Vijayakumar Majage, Addl.SPP for R1; Sri H.Jayanth Poojary, Adv. for Sri K.Prasad Hegde, Adv. for R-2) This Criminal petition is filed under Section 482 of Cr.P.C., praying to quash the order dated 02.05.2016 passed by the Principal Sessions Judge, Udupi District, Udupi in Crl.Rev.Pet.No.87/2012 confirming the order of the Principal Civil Judge & JMFC, Udupi dated 16.11.2012 on application under Section 457 filed by respondent no.2 in Crime no.34/11 of Hiriyadka Police in P.C.no.16/11 etc.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioner has called in question the correctness and legality of the order passed by the learned Principal Sessions Judge, Udupi in Crl.RP No.87/2012 dated 02.05.2016, confirming the order passed by the learned Magistrate dated 16.11.2012 in Crime No.34/2011 on the application filed by accused no.1 under Section 457 Cr.P.C., directing the complainant to take back the properties seized by the police and reported in P.F.No.25/2011. The revision preferred against the said order has also been dismissed.
2. The learned counsel for petitioner submits that accused no.1 has no right to make an application under Section 457 Cr.P.C., for issuance of directions to the complainant even before the issue of process to the accused and therefore, both the courts below have committed error in allowing the said application.
3. The learned counsel for respondent has argued in support of the impugned order.
4. In order to answer the controversy, reference to Section 457 Cr.P.C., may be necessary.
Sub-section (1) of Section 457 Cr.P.C., provides that whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
Sub-section (2 of Section 457 Cr.P.C., which is relevant for our purpose reads that “if the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation”.
5. The Section does not prevent the accused from making an application nor does it specify the person who is competent to make an application for release of seized property. The section only requires the Magistrate to release the property seized by the police to the person who is entitled to the possession thereof and in cases where the person so entitled is known”, the property to be delivered to him.
6. In the instant case, the complainant set the law into motion when her household properties were stolen. The subject matter of theft was recovered by the police and was produced before the court in P.F.No.25/2011. The petitioner does not dispute the fact that the complainant was the owner of the said property. As such, she being legally entitled to said property, direction issued by the learned Magistrate is in conformity with the provision of Section 457 (2) Cr.P.C. As a result, I do not find any error or illegality in the impugned order warranting interference by this court under Section 482 Cr.P.C. Consequently, the petition is dismissed.
Np/-
Sd/- JUDGE