IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON' BLE MR. JUSTICE B.A.PATIL CRL.R.P NO.947/2019 BETWEEN:
SRI. KRISHNEGOWDA, S/O LATE BETTEGOWDA, AGED ABOUT 33 YEARS, R/AT MANIKUPPE VILLAGE GUBBI TALUK, TUMAKURU DISTRICT 572216. REPTD. BY GPA HOLDER SMT. ERAMMA, W/O LATE BETTEGOWDA, AGED ABOUT 53 YEARS, R/AT MANIKUPPE VILLAGE, GUBBI TALUK, TUMAKURU DISTRICT.
... PETITIONER (BY SRI. K T VASUDEVA IYENGAR, ADVOCATE) AND:
STATE OF KARNATAKA BY RAJAGOPALANAGARA POLICE STATION BENGALURU – 560058.
... RESPONDENT (BY SRI. M.DIVAKAR MADDUR, HCGP) THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 26.06.2019 PASSED BY THE LEARNED LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH:65), BENGALURU IN S.C.NO.182/2018 AND FURTHER BE PLEASED TO DIRECT THE LEARNED SESSIONS JUDGE TO RELEASE THE ORIGINAL SALE DEED WHICH IS SEIZED IN P.F.NO.336/2016 TO INTERIM CUSTODY OF PETITIONER CONDITIONALLY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING;
ORDER The present revision is filed by the petitioner/accused No..13 being aggrieved by the order passed by the LXIV Additional City Civil and Sessions Judge, Bengaluru in S.C.No.182/2018 vide order dated 26/06/2019 whereunder the application filed by the petitioner/accused under Section 451 and 457 of Cr.P.C. has been dismissed.
2. I have heard learned counsel for the revision petitioner and the learned H.C.G.P for the respondent- State.
3. The gist of the prosecution is that on 05/10/2016 accused No.13 to 15 hatched a criminal conspiracy and sent accused Nos.3 and 4 to the house of the complainant claiming to be that they are Election Census Officers. At that time, accused Nos.1, 2, 5. 7 and 8 trespassed into the house of the complainant holding deadly weapons and threatened the driver of the complainant and tied the hands with screen cloths and demanded money. When the complainant refused, they threatened and assaulted on his face and hands and took cash of Rs.60,000/- and gold ornaments and silver articles. On the basis of complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner/accused that during the course of investigation, police have seized the original sale deed dated 18/08/2010 under P.F.No.336/2016 registered as document No.2802/1-11 at Book -1 in the office of the Sub-Registrar, Dasanapura, Bengaluru North Taluk. It is further submitted that the petitioner being the absolute owner of the said sale deed has filed an application under Section 451 and 457 of Cr.P.C., seeking interim custody of the said document. He submitted that the learned Sessions Judge has erred in observing that the said original sale deed is required for the purpose of marking and as such that the reason assigned is not correct. He submitted that if the original sale deed belonging to the petitioner/accused No.13 is kept in the custody of the police or Court, there is likelihood of missing of the original document and there are chances of destruction of the same by rats and other insects. He further submitted that if the original sale deed is destroyed, it is very difficult to obtain the said document. He submitted that petitioner/accused is ready to abide by the conditions imposed by the Court and ready to offer surety. On these grounds, he prayed to allow the revision petition and set aside the impugned order dated 26/06/2019 and release the original sale deed in his favour.
5. Per contra, learned HCGP vehemently argued and submitted that on the basis of the voluntary statement of accused Nos.13 and 14, he has given the original records relating to the site in a financial matter and that the said document is required for the purpose of consideration before the Court for leading evidence. He further submitted that accused should not be disputed for marking of the said document or certified copy of the same and with reasonable conditions, the said document may be released in favour of the petitioner/accused No.13. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and perused the records.
7. Before going to consider the facts of the case on hand, it is relevant to quote the decision of the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in AIR 2003 SC 638, wherein the Hon’ble Apex Court at para No.7 has observed as under;
“ The powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously, it would serve various purposes, namely -
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. “ 8. The learned Session Judge without following the guidelines issued by the Hon’ble Apex Court and has rejected the said application. Time and again this Court as well as the Hon’ble Apex Court has directed that the documents or any articles seized should not be kept with the custody of the police or the Court and that there is likelihood of they being misused or missing or that it can be misappropriated or damaged. Further, the Hon’ble Apex Court has directed that expeditiously such applications have to be disposed and the articles have to be released on ascertaining the ownership and entitlement of such property.
9. On perusal of the records, the order of the trial Court discloses that on the basis of the voluntary statement given by accused Nos.13 and 14 during the course of custodial interrogation, accused No.13 informed that he had given original records relating to site in a financial matter to Cw.13, the father of Cw.1. In that light, the said document has been seized from the possession of accused No.13.
10. It is the specific contention of the learned counsel for the petitioner/accused No.13 that he is ready to furnish certified copy of the said sale deed and he will also not object for marking of the said document during the course of trial before the court below. He further submitted that till the disposal of the case on merits, he will not sell, pledge or create any encumbrance on the basis of said sale deed.
11. Keeping in view the ratio laid down in the above said decision and the facts and circumstances of the case, the petition is allowed.
The impugned order dated 26/06/2019 passed by the LXIV Additional City Civil and Sessions Judge, Bengaluru in S.C.No.182/2018, dated 26/06/2019 is set aside.
The trial Court is directed to release the original sale deed in respect of property bearing Katha No.105/7, Assessment No.105/7, situated at Shivanapura Village, Dasanapura Hobli, Bengaluru North Taluk, subjected to PF No.336/2016 to the interim custody of the Power of Attorney Holder of petitioner/accused No.13 on proper identification and acknowledgment with following conditions;
i) Petitioner/accused No.13 or his General Power of Holder shall not create any encumbrance or pledge or create any charge by using the original sale deed till the disposal of the criminal case ii) The trial court is directed to keep certified copy of the sale deed and place it on record by taking an affidavit of the accused No.13 to the effect that during the course of evidence, he will not dispute the said document and he will not be objected for marking the same document.
iii) Petitioner/accused No.13 shall not create any charge or encumbrance or sell the said property and under takes to produce the said original sale deed as and when it is required before the Court, failing which, he has to compensate an amount of Rs.5,00,000/-.
iv) The trial Court also directed to create encumbrance on the said property till the trial is concluded.
Sd/- JUDGE Msu