: 1 : R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 820/2016 BETWEEN State by Puttur Town Police Station D.K. District Mangaluru Rep. by State Public Prosecutor High Court Building Bengaluru-574201.
(By Sri. Thejesh .P, HCGP) AND Vinaya Krishna Khandige S/o Ramakrishna Bhat Aged 36 years R/at Shridurga Kanadamoole Perla Post Kasaragod Taluk-671552.
(By Sri Rahul Rai .K – Advocate for Sri Aruna Shyam .M - Advocate) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 08.01.2016 passed in Crl.RP.No.5046/2015 passed by the court of V-Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, sitting at Puttur, Dakshina Kannada and confirm the order dated 17.10.2015 passed by the Prl. Senior Civil Judge and A.C.J.M, Puttur, Dakshina Kannada, in C.C.No.1575/2015 by allowing this petition.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER Heard learned HCGP for the Petitioner – State and learned counsel for the respondent. Perused the entire records.
2. This petition is filed by the petitioner – State challenging the order dated 8.1.2016 passed by the V-Addl. District and Sessions Judge, D.K. Mangaluru sitting at Puttur, D.K. in Cr.R.P.No.5046/2015 allowing the revision petition and setting aside the order passed by the trial Court in C.C.No.1575/2015 dated 17.10.2015.
3. Respondent herein had filed an application under Section 457 of Cr.P.C. before the Prl.Senior Civil Judge and ACJM, Puttur in C.C.No.1575/2015 stating that the petitioner is the absolute owner of shop premises bearing D.No.20-1-17-8D/A-0-1 of Puttur TMC situated in Vailankani complex, Darbe, Puttur, purchased by him and after purchase he made interior decoration and installed electronic items detailed in the schedule of the lease deed dated 10.1.2014. Further, it is stated that on 10.1.2014 the petitioner leased the said premises to one Balakrishna Bhat and by taking the premises on lease, Balakrishna Bhat was carrying out jewelry business under the name and style M/s.Srivara Jewelers and recently the police had registered a case for the offence under Section 420 of IPC. It is stated that during the course of investigation, police had seized the schedule articles and the premises in question on 7.7.2015. It is further submitted that, the police had unauthorisedly seized the premises where the accused was running the jewelry business and the premises belonged to the petitioner and it was fetching rent of Rs.50,000-/- p.m. It is further stated that the articles detailed in the schedule belonged to the petitioner and the same were let out to the accused for carrying out his business and if the said electronic items are kept with the police for long time, they will become scrap and useless. On all these grounds urged in the application, the applicant was seeking release of the items shown in the schedule.
4. The said application filed u/s 457 of Cr.P.C. was opposed by the State contending that the accused persons have cheated the public to the tune of Rupees one crore eighty lakhs and the investigation was not yet completed. Further, it was contended that the rent agreement was between the accused persons and the applicant and that the charge sheet is filed by the complainant police for the offence punishable under Sections 420, 403, 406 IPC and under Section 9 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004. Based on the contention and rival contention of the parties, the trial Court vide order dated 17.10.2015 had rejected the application filed by the applicant under Section 457 of Cr.P.C.
5. Aggrieved by the said order, the respondent herein filed criminal revision petition in Crl.RP.No.5046/2015 before the V-Addl.District and Sessions Judge, D.K. Mangaluru, sitting at Puttur, D.K. The Court below vide order dated 8.1.2016 allowed the revision petition and set-aside the order passed by the trial Court in C.C.No.1575/2015 dated 17.10.2015. Consequently, Srivara Jewelers Shop was ordered to be released from attachment. However, the other items, i.e., computer and electronic devices seized under mahazar dated 7.7.2015 was ordered not to be released and they were to be kept intact till the disposal of the case. The petitioner shall not alienate or transfer title of Srivara Jewelers Shop building to any third parties till the disposal of the case and he shall execute indemnity bond not to sell or transfer ownership of Srivara Jewelers Shop building to any third parties till disposal of the case. Being aggrieved by the said order the Petitioner – State is before this Court in the present criminal revision petition by urging various amongst other grounds.
6. Learned HCGP contends that the impugned order passed by the learned Sessions Judge is illegal, improper and unjustifiable. The learned Sessions Judge has grossly erred in reversing the findings of the trial Court and the oral approach of the Sessions Judge has resulted in miscarriage of justice. It is contended that the Court below while allowing the Revision petition has failed to consider the fact that the petition filed by the respondent herein is not maintainable either in law or on facts. The order passed under Section 457 of Cr.P.C. cannot be subject matter of revision and it is an interim order as per Section 397 (2) of Cr.P.C. and the revision petition does not lie against the interim order.
7. Further, it is contended that as per Section 4(2) investigation and trial of a special case should be under the Special Act and not under Cr.P.C., any case registered under the Karnataka Protection of Depositors in financial Establishment Act, 2004 is to be tried in a Special Court which is having equal jurisdiction of the District and Sessions Court and original proceedings on any application should be filed to the Special Court and the order on the said application is to be challenged in Revision before the High Court. The impugned order is in utter violation of Sections 10 and 12 of the said Act. On all these grounds, learned HCGP sought for setting aside the order passed by the Court below in Crl.R.P.No.5046/2015 and to confirm the order passed by the trial Court in C.C.No.1575/2015.
8. Learned counsel for the respondent contends that the respondent is the owner of premises according to the sale deed dated 22.3.2013 for having purchased the building premises, where Srivara Jewelry is running. The premises is a commercial premises and he has leased out the premises to accused No.1 on 10.1.2014. From 22.3.2013 till 10.1.2014 the petitioner had fully furnished the premises and the same was given in lease to accused No.1 for a monthly rent of Rs.50,000/-. He contends that at the time of seizure, no notice was issued to the respondent and respondent is son-in-law of Accused No.1 and the said business is not a partnership firm. The petitioner has given consent to TMC, Puttur to issue license and the offence is not committed in the premises. The first application was rejected on 28.10.2015 on the ground that charge sheet was not filed but the charge sheet was filed on 26.9.2015. Then the second application came to be filed. The police filed the charge sheet before the Court which had no jurisdiction and the said Court took the cognizance. Only the DC is the competent authority for investigation but the police have attached the property of the third party. Section 6 of the said Act delegates the powers and duties of competent authority. The Court below by considering all these aspects has rightly allowed the application filed by the respondent and there are no reasons for this court to interfere with the impugned order. Accordingly, he sought for dismissal of the petition.
9. In this context of the contentions as taken by learned HCGP and so also, the counter made by learned counsel for the respondent, it is relevant to state that there is no dispute that respondent herein had filed an application under Section 457 of Cr.P.C. before the trial Court in C.C.No.1575/2015 for release of items indicated in the schedule to his interim custody. But the trial Court rejected the said application against which revision petition was filed before the Revisional Court in Cr.RP.No.5046/2015 where the revision petition came to allowed and the scheduled property was ordered to be released from attachment.
10. It is the contention of learned HCGP for the State that under Section 11 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004, only the Special Court is having jurisdiction and got powers to release the properties seized under this Act. Further, under Section 10 of the Act, the Sessions Court is having power to try the offence. Even though the earlier application filed by the applicant was rejected by the trial Court, no revision or appeal is filed against the said order passed by the trial Court but filed successive application under Section 457 Cr.P.C. for second time even though the trial Court did not had jurisdiction neither to try the offence nor to release the properties.
11. It is relevant to notice here that respondent is not accused for the alleged offences, further, the respondent is the owner of shop premises of Srivara Jewelers which was purchased by him on 22.3.2013 through registered sale deed. Accused No.1 is the father-in-law of the petitioner who had let out the shop premises for rent through lease agreement. Accused No.3 is the wife of petitioner and admittedly, there is no partnership firm or business in the said jewelries. Admittedly, the case is registered for the offence under Section 420 of IPC and before filing the charge sheet, shop premises, computers and other electronic devices were seized by the police in the absence of the petitioner. Without giving notice to the petitioner, the police had conducted the seizure mahazar and sealed the building premises of petition in his absence. There is no rival claim of accused persons on the building premises. If the trial Court did not had the jurisdiction to entertain the application filed under Section 457 of Cr.P.C as contended by the learned HCGP, the same should have been returned on the ground of lack of jurisdiction. But the trial Court on two occasions has received the application under Section 457 of CRPC and objections were called for from the prosecution and the same were considered on merits by rejecting them. If the trial court did not had jurisdiction, it should not have ventured to consider the application on merits instead of returning the same for filing before the Special Court. Therefore, I find no justifiable ground to interfere with the order passed by the Sessions Court. Time and again this Court in various decisions has held that revision lies under Section 397 of CR.PC both before this Court as well as Sessions Court as they have concurrent jurisdiction to exercise power of revision. Therefore, keeping in view the scope and object of Sections 10 and 11 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004, the reasons and findings given by the Sessions Court while allowing the revision petition appears to be just and reasonable and in accordance with law and the same does not call for interference of this Court. Consequently, the petition being devoid of merits, is liable to be dismissed.
Accordingly, the criminal revision petition is dismissed. The order passed by the Court below in Crl.RP.No.5046/2015 dated 8.1.2016 is confirmed.
DKB Sd/- JUDGE