JUDGMENT M.C. Jain and K.K. Misra, JJ.
1. We have heard Sri Viresh Misra assisted by Sri A.K. Gaur for the complainant Naipal Singh and Sri G.S. Chaturvedi, learned Sr. Advocate for the accused appellant Rambir Rana and Miss N.A. Moonis for the State.
2. Criminal Appeals No. 190 of 2005, 99 of 2005 and. 405 of 2005 are connected with each other, having arisen out of the judgment and order dated 5.1.2005, passed by Additional Sessions Judge, Fast Tract Court No. 1, Ghaziabad in Sessions Trial No. 1033 of 2002, 1034 of 2002 and 1035 of 2002 which were tried together. The appellant in the present Criminal Appeal No. 190 of 2005 is Rambir Rana. Criminal Appeal No. 99 of 2005 has been filed by Ashok and Satish whereas the third connected Criminal Appeal No. 405 of 2005 has been filed by Vikky alias Vikendra alias Virendra.
3. The facts so far as necessary for the decision of the application in question are these: All the four accused appellants have been convicted inter alia under Section 364A read with Section 34 I.P.C. with sentence of life imprisonment awarded to each of them with certain amount of fine. The incident related to the kidnapping of one Vishal son of the complainant Naipal Singh on 12.6.2002. Ransom of Rs. 2 crores was demanded for his release through a letter got sent by the accused through the kidnapee to his father. The demand was narrowed down to Rs. 32 Lacs by coversation with the accused persons on phone and this amount was paid by the kidnapee's father to the accused Rambir Rana at House No. K.L. 153, Kavi Nagar, Ghaziabad on 14.7.2002. Kidnapee and Rs. 31,70,000/- were recovered by the police from the said house of Rambir Rana who, too, was arrested.
4. On trial being held, the accused persons including Rambir Rana were convicted and sentenced. The trial court directed that the recovered amount of Rs. 31,70,000/- be given to the complainant Naipal Singh after the expiry of the period of filing of appeal. Since the appeals have been filed (including by Rambir Rana), the complainant Naipal Singh (father of the kidnapee) has applied to this Court for the release of the said amount in his favour. It has been averred by him through affidavit that the currency notes given by him as ransom money are presently kept in Malkhana at police station Kavi Nagar, Ghaziabad and he is prepared to abide by the conditions to be stipulated by this Court for the release of the amount. It has further been urged that since the son of the complainant had been kidnapped, there was constant threat from the side of the accused that if the amount of ransom was not paid within time, the kidnapee would be killed. In order to save his son, he managed the demanded amount of ransom by selling landed property and by borrowing money from friends and relatives. The details of the same have been given in paragraph 11 of the affidavit accompanying the application of the complainant Naipal Singh. It has been submitted that the decision of the appeal may take a few years and he would be at a great loss if deprived of his money which he, in great distress, somehow managed to save the life of his son.
5. The amount in question has been claimed by the accused Rambir Rana also as belonging to him. The objection put forth by means of affidavit of his brother Krishna Bir Rana is that the amount of Rs. 31,70,000/- actually belongs to him (Rambir Rana). The finding of the trial court regarding the ownership of the said money has been challenged by him. He has prayed for rejection of the said application made by the complainant.
6. A technical objection has been put forth from the side of the State also through a counter affidavit of Pankaj Tripathi, S.I. of P.S. Kavinagar, District Ghaziabad that it has not been disclosed as to under what provision of law the release application has been made for the release of the money. Sections 451 and 452 Cr.P.C. are said to be not at all applicable when the appeal is pending.
7. We have gone through the impugned judgment of the lower court and have considered the respective submissions of the contending parties.
8. It is not disputed that the amount in question of Rs. 31,70,000/- was recovered from the possession of the accused Rambir Rana. The complainant Naipal Singh as PW 2 deposed about the giving of ransom money to the accused on 14.7.2002 at house No. K.L. 153, Kavi Nagar, Ghaziabad. He has also given the details of the manner in which the ransom money was raised by him by way of selling plots, borrowing money from relatives/friends. It would be recalled that full details of the manner of the raising of the ransom money have been given by the complainant before this Court also through his affidavit and annexures. On the other hand, there was no evidence from the side of the accused Rambir Rana in support of the claim for the amount of Rs. 31,70,000/-. Rambir Rana's father Suraj Mai was examined as DW 2 before the lower court who stated that he had 100 Bighas land, Kolhu, brick kiln and business of cattle selling. According to him, his saving was about Rs. 5 Lacs per year. He claimed that he had initially given Rs. 20 Lacs to Rambir Rana to start a brick kiln. The brick kiln went in loss and on further demand of his son Rambir Rana, he gave to him further amount of Rs. 25 Lacs two years back. However, he gave no proof at all in support of such claim. There was nothing to indicate that he withdrew any such amount from any Bank to finance his son Rambir Rana, though it came down from him that there was a Bank in his village. It was illogical that such a huge amount could be kept by him at his house, unmindful of security. Further, if the initial amount of Rs. 20 Lacs given to his son was got lost because of adversity in brick-kiln business of his son Rambir Rana, then there could be no possibility of the recovery of Rs. 31,70,000/- from the rented house of his son Rambir Rana on 14.7.2002. Further, a sum of Rs. 25 Lacs had allegedly been given by Rambir Rana's father to him in June. He would not have been keeping the same idly at his house to be recovered on 14.7.2002. Moreover, nothing was stated by the accused Rambir Rana about this recovered amount in his bail application moved before the Magistrate. Instead, in his bail application dated 24.8.2002 moved before the Sessions Judge, it was alleged that no recovery was made from him. In his statement under Section 313 Cr.P.C. he stated that he had been called at the Police Station and put behind the bars. He did not say that while going to the Police Station, he had Rs. 31,70,000/- on his person or that the police had picked up the said amount from his house.
9. The respective contentions being taken note of, the claim of the accused Rambir Rana to the amount of Rs. 31,70,000/- was unfounded.
10. Sri G.S. Chaturvedi arguing for the accused appellant made reference to the discussion of a press conference (recorded on internal page Nos. 41 to 43 of the impugned judgment). It is wholly irrelevant to beam light on the matter in decision.
11. The learned Counsel for the complainant has cited the case of Sunder Bhai Ambalal Desai v. State of Gujarat 2003 (46 ACC) 223 in support of his prayer for the release of the amount in question to him.
12. The argument from the side of the State as to the non-application of Sections 451 and 452 Cr.P.C. during the pendency of the appeal cannot meet approval as such. The provisions contained in the Code of Criminal Procedure are aides to advance the cause of justice instead of creating obstruction in achieving the goal. In a sense, an appeal is continuation of trial. A logical and reasonable view has to be taken in such matters instead of being hypertechnical.. It would be most unfair to let the amount of Rs. 31,70,000/- lie in the custody of the State for no fault of the complainant, who, to save the life of his kidnapped son arranged this huge amount from various sources. Keeping of such huge amount at the Police Station or otherwise under State custody for a long period is not at all justified. Of course, care should be taken to maintain proper balance even while releasing this amount in favour of the complainant. We are of the opinion that the same should be released in favour of the complainant Naipal Singh on certain conditions.
13. It is, therefore, ordered that the amount of Rs. 31,70,000/- recovered from the accused appellant Rambir Rana on 14.7.2002 kept in Malkhana of Police Station Kavi Nagar, District Ghaziabad shall be released in favour of the complainant Naipal Singh son of Late Sher Singh, R/o R-6/18, Raj Nagar, P.S. Kavi Nagar, District Ghaziabad on the following conditions:
1. The complainant Naipal Singh shall give a personal bond in the sum of Rs. 31,70,000/- before the Chief Judicial Magistrate, Ghaziabad, binding himself to deposit the said amount, depending upon the final decision of the criminal appeal in question.
2. The complainant Naipal Singh shall furnish security of immovable property in the sum of Rs. 31.70 Lacs in favour of the Chief Judicial Magistrate, Ghaziabad. The property to be offered as security may either belong to the complainant himself or any other major person(s). The said immovable property shall be mortgaged in favour of the Chief Judicial Magistrate, Ghaziabad in his official capacity. The owner of the immovable property offered as security shall be mortgaged by the real owner and shall be registered as simple mortgage according to the Transfer of Property Act in favour of Chief Judicial Magistrate, Ghaziabad. The source of the ownership of the property so offered shall be disclosed. Further, a declaration to this effect shall also be made that the same is free from encumbrances.
3. A draft of the mortgage deed shall be first presented before the Chief Judicial Magistrate, Ghaziabad for approval, giving complete details of the property offered as security for mortgage, i.e., its area in meters, existing constructions, boundaries, its circle rate etc and disclosing its present estimated value. If need be, Chief Judicial Magistrate, Ghaziabad shall get the valuation of the same estimated through Court Amin of Civil Court Ghaziabad, also verifying the circle rate from Registration office. After such formalities, on approval of the draft by the Chief Judicial Magistrate on being fully satisfied about the sufficiency of the security, the property offered as security shall be mortgaged in favour of Chief Judicial Magistrate by registered deed to be executed before the Sub-Registrar, Ghaziabad as per condition No. 2 above.
4. On acceptance of the personal and security bonds to be furnished in the manner aforesaid, the amount of Rs. 31, 70,000/- shall be released in favour of the complainant aforesaid.
5. A copy of the personal bond and registered security bond (Mortgage Deed) shall be sent by Chief Judicial Magistrate, Ghaziabad to this Court as well within ten days after registration and acceptance.