IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER 2019 BEFORE:
THE HON’BLE MR.JUSTICE H.P. SANDESH CRIMINAL APPEAL No.1983 OF 2017 BETWEEN SRI. MOHAMMED PEER, S/O. MOHAMMED GHOUSE, AGED ABOUT 55 YEARS, RESIDENT OF MAGGADA BEEDHI, GUBBI TOWN, TUMKUR DISTRICT-572 101.
[BY SRI. H.P. LEELADHAR, ADVOCATE] ... APPELLANT AND 1. STATE BY GUBBI POLICE, TUMKUR DISTRICT, REP:SPP, HIGH COURT BUILIDINGS, BENGALURU-560 001.
2. NASEEMA TAJ, W/O. MOHAMMED PEER, MAJOR IN AGE, MUNSIFF MOHALLA, GUBBI TOWN, PRESENTLY R/AT 5TH CROSS, SADASHIVANAGARA, TUMKUR DISTRICT-572 101. ... RESPONDENTS [BY SRI. K.NAGESHWARAPPA, HCGP FOR R1.
R2 - SERVED] * * * THIS CRL.A IS FILED U/S 454 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.11.2017 REJECTING THE APPLICATION FILED BY THE APPELLANT UNDER SECTION 451/452 OF CR.P.C. IN S.C. NO.4/2006, SEEKING FOR RELEASE OF THE PROPERTIES SEIZED IN THE ABOVE CASE IN PF. NO.77/2005 AND ALLOW THE ABOVE APPEAL BY DIRECTING III ADDITONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU TO RELEASE M.Os.1,2 AND 3 IN FAVOUR OF THE APPELLANT IN THE ABOVE CASE.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of both the learned counsel, the same is taken up for final hearing.
2. This Court had issued notice against respondent No.2 and in spite of service of notice, respondent No.2 did not choose to appear before this Court.
3. The appellant is accused No.1 before the Court below. He has filed an application under Section 451/452 of Cr.P.C., before the Sessions Court in S.C. No.4/2006 seeking for release of M.Os.1 to 3. The Court below vide Order dated 04.11.2017 rejected the application on the ground that the case has already been disposed off. The Court below in its order observed that in a disposal case it is not proper to discuss that who is entitled for the custody of that properties. Further it is observed that full fledged enquiry is necessary in this regard. It is also observed that whether the complainant is entitled to the custody of the property or accused No.1 is entitled for the custody of that property can be seen by holding separate enquiry. With the said observation, the application was rejected.
4. Being aggrieved by the said order, the present appeal is filed by the appellant/accused No.1 contending that the Court below failed to see that M.Os.1 to 3 have been seized from his possession. When that being the case, after acquittal, the appellant is entitled for the material objects which were seized from his possession. The recovery of M.Os.1 to 3 at the instance of the accused is not in dispute and they were recovered from the appellant on his voluntary statement and the same is not disputed by respondent No.2. That being the case, the Court below ought to have passed an order to release M.Os.1 to 3 in favour of the appellant. The learned counsel appearing for the appellant also in his argument would contend that the Court below has committed an error while adjudicating the matter.
5. The learned HCGP appearing for the State would submit that while acquitting the appellant herein, the Court below has made an observation that the complainant and her brother-P.W.10 were failed to prove that M.Os.1 to 3 were given to the accused by them. Therefore, M.Os.1 to 3 were to be returned to accused No.1 from whom they were seized but, after the appeal period is over. When such direction was given by the Sessions Court to release M.Os.1 to 3, there was no need for filing one more application. When there was already a finding, this appeal may be disposed off considering the direction already given by the Court below.
6. In reply to the argument, the appellant’s counsel would submit that the State also filed an appeal numbered as Crl.A. No.325/2011 against the acquittal and the said appeal was dismissed vide Judgment dated 03.11.2014 itself and hence prays this Court to pass an order to release M.Os.1 to 3 in favour of the appellant.
7. Having heard the arguments of the learned counsel for the appellant and also the learned HCGP for the State, the points that arise for my consideration are as under:
1) Whether the Court below has committed an error in dismissing the application filed under Section 451/452 of Cr.P.C. by the appellant and it requires interference by this Court?
2) What Order?
8. Having considered the submissions of the learned counsel for the appellant and also the learned HCGP., and also considering the Judgment of the Sessions Court in S.C. No.4/2006, there is a finding in para No.22 that it is not proper to consider his [P.W.8] evidence to come to the conclusion that prosecution has proved the seizure of M.Os.1 to 3 and drawing up of mahazar-Ex.P7. The Court below also while passing the operative portion of the Judgment made an observation that the complainant and her brother-P.W.10 have failed to prove that M.Os.1 to 3 were given to the accused by them. It is further ordered that M.Os.1 to 3 shall be returned to accused No.1 i.e., appellant herein from whom they were seized, but after the appeal period is over. It is brought to my notice that Crl.A. No.325/2011 has already been dismissed by this Court vide Order dated 03.11.2014 and nothing is pending to consider the same. In view of definite finding of the Court below that the complainant has not proved that M.Os.1 to 3 were given by them to the accused and when a specific direction was given to release M.Os.1 to 3 in favour of accused No.1 i.e., appellant herein, the Court below ought not to have been rejected the application, which was filed in the year 2017 i.e., after disposal of the appeal. When the appeal against the acquittal was also dismissed in the year 2014 itself, there was no need to conduct a detailed enquiry. Though, definite finding was already given, the Court below while passing an order on the application has not noticed the same. Hence, the order of the Court below require interference by this Court. In view of the discussion made above, I pass the following:
ORDER The appeal is allowed. The impugned order is set aside.
The Court below is directed to release M.Os.1 to 3 in favour of the appellant/accused No.1 as already decided in terms of the Order passed in S.C. No.4/2006, on proper identification.
Sd/- JUDGE Ksm*