Court No. - 86
Case :- MATTERS UNDER ARTICLE 227 No. - 5203 of 2021 Petitioner :- State of U.P. Respondent :- Kamal Malhotra Counsel for Petitioner :- G.A.
Hon'ble Umesh Kumar,J.
Heard learned A.G.A. appearing for the State of U.P.- petitioner and perused the record.
This petition has been filed with the prayer to issue an appropriate order to call for records of the case and set aside impugned order dated 06.11.2018 passed by Additional Chief Judicial Magistrate-III,Bulandshahar in Criminal Case No.263 of 2012 (State Versus Kamal Malhotra) and order dated 18.07.2019 passed by Additional Sessions Judge/Fast Track Court No.02, Bulandshahar in Criminal Revision No. 438 of 2018 (State of U.P. Versus Kamal Malhotra).
The brief facts of the case in nutshell is that informant Chhavi Prakash Goel instituted a criminal case against the respondent with the allegation that informant has kept 3835 sacks of rice- paddy(Dhan) in F.C.I. godown, Bulandshahar for the purposes of taking loan from the Bank and opposite party hatching conspiracy and with ill intention, picked up aforesaid bags. For which, Case Crime No.670 of 2009 under Section 406 I.P.C. was registered against Kamal Malhotra and charge-sheet was submitted under Sections 420 and 406 I.P.C. It is further submitted that during course of investigation, the proceeding under Section 83 Cr.P.C. was initiated against opposite party and his property was attached by the police on 01.12.2011. The informant, Chhavi Prakash Goel has moved release application for release of 3835 bags in his favour which was rejected by the court on 25.01.2012. Thereafter, the accused opposite party, Kamal Malhotra appeared and moved release application which was allowed by the court and on 22.08.20212 Station House Officer, Kotwali Dehat, Bulandshahar was directed to release attached property in favour of respondent, Kamal Malhotra. Against that order, informant Chhavi Prakash Goel has moved Criminal Misc. Application (482 Cr.P.C.) No.31803 of 2012 before this Court which was disposed of on 17.02.2014 with the observation that informant can file suit for his property and order dated 22.08.2012 was maintained. Thereafter on the application of accused-opposite party, the Court concerned passed an order dated 05.05.2014 with the direction that in the light of order dated 22.08.2012 property attached be returned to opposite party. When opposite party did not receive attached property, he moved an application to return money in lieu of attached property from receiver/custodian Brijpal and investigating officer on 04.10.2016 before the court below and court below on 30.01.2017 has rejected his application. Feeling aggrieved by order dated 30.01.2017 accused-opposite party has filed Criminal Revision and revisional court vide order dated 03.04.2017 set aside order dated 30.01.2017 passed by the court below and directed the trial court to decide the application, being Application No.33-B of opposite party and thereafter on 06.11.2018 learned trial court passed the impugned order. It is further argued that before disposal of Criminal Case No.263 of 2012 learned Magistrate has directed the concerned Station House Officer to state market value of attached property and when police has not submitted its report, report was called for from District Magistrate, Bulandshahar who submitted his report on 10.01.2018 showing market value of the rice and thereafter order was passed by lower court below that market value of attached property in accordance with report of Krishi Utpadan Mandi Samiti be paid to opposite party within a month from the date of order i.e. 06.11.2018. Being aggrieved by the order dated 06.11.2018, petitioner-State filed a revision before learned Sessions Judge, Bulandshahar who without considering entire aspect of the matter dismissed revision by order dated 18.07.2019 and affirmed order of the trial court dated 06.11.2018. Hence being aggrieved by both impugned orders passed by the courts below, the petitioner has preferred present petition before this Court.
It is contended by learned counsel for the petitioner that both the courts below have erred in considering that aforesaid property was given in custody of Brijpal by court's order and same was kept in presence of Brijpal Singh in Mandi Samiti Godown, Bulandshahar on 17.03.2012 and 18.03.2012 and its report dated 02.04.2012 was already on record but the same was overlooked. It has been further argued that Brijpal Singh was custodian of the attached property who must have been summoned during course of hearing on the application of the opposite party. It is next argued that order of recovery of market value of attached property from the State Government is not in accordance with law and same is arbitrary and illegal. Therefore, the impugned orders passed by the courts below may be set aside by this Court.
A perusal of the record shows that the informant had lodged a First Information Report against the opposite party, which was registered as Case Crime No.670/209/2009, under Sections 406 and 420 I.P.C., at P.S. Nayi Mandi Kotwali Dehat, District Bulandshahar. In reference to the above case, to secure the arrest of the accused, the property was attached in proceedings under Section 83 of Cr.P.C. After the accused had appeared before the court, he applied for release of the said property. The informant, Chhavi Prakash Goel applied for release of the property in his own favour on ground that he is the owner of the property. By the order impugned, the learned Magistrate has rejected the application of the informant on the ground that the property was attached for securing the presence of the accused -opposite party and since the property is not a case property, therefore, the property cannot be released in favour of the informant. The property was not seized as a case property but was attached for securing presence of the accused-opposite party-Kamal Malhotra. As the accused had appeared before the court, the same has to be released in favour of the accused- opposite party. By the aforesaid impugned orders, the market value of the attached property was rightly directed to be paid to the opposite party-Kamal Malhotra.
In the light of above discussion, the petition under Article 227 of Constitution of India has no force and it is hereby dismissed.
Order Date :- 7.10.2021 MN/-