Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : In Theft Case Owner Is Entitled To Custody Of Ornaments During The Pendency Of The Case.
JUDGEMENT TITLE : Vijay Kumar Vs. State Of U.P. On 28/09/2007 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 14331 OF 2006
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 36


Criminal Misc. Application No. 14331 Of 2006

Vijay Kumar Vs. State Of U.P.

 

Hon'ble R.K.Rastogi,J

This Is An Application Under Section 482 Cr.P.C. To Quash The Order Dated 20.11.2001 Passed By The Addl. Chief Judicial Magistrate, Allahabad Relating To Case Crime No. 254 Of 2001 Of Police Station Kydganj District Allahabad Under Sections 380/411 I.P.C. And The Judgement And Order Dated 15.5.2002 Passed By The Addl. Sessions Judge , Allahabad In Criminal Revision No. 245 Of 2002 Which Was Filed Against The Aforesaid Order Of The C.J.M. Allahabad.

The Facts Relevant For Disposal Of This Application Under Section 482 Cr.P.C. Are That On 27.10.01 The Applicant Vijay Kumar Lodged An F.I.R. At Police Station Kydganj District Allahabad Against The Accused Renu And Pintoo ( Opp. Parties No. 2 And 3 In The Present Case) With These Allegations That Vijay Kumar On The Death Of His Mother Had Gone To Jasra Along With His Family . When He Returned Back To His House, He Noticed That Some Cash And Ornaments Were Missing From A Box In His House No. 168B Krishna Nagar Kydganj Allahabad Whereas Other Items Lying In The House Were Untouched. He Had Suspicion Upon Renu And Pintoo, Who Had Distant Relationship With Him . Thereafter He Went To The Police Station To Lodge The Report.

On The Basis Of Above Report The Police Registered The Case Under Section 380 I.P.C. And Investigated The Same. It Is Alleged That On 2.11.2001 Mr. Awanish Kumar, S.I. Received Information From An Informer That Two Culprits, Who Had Thrown Bombs On Police Party On 30.10.2001 At Mohalla Garhaiya, Were Waiting For Some Vehicle Near Bagar Dharmshala. When They Reached That Dharmshala Along With The Police Party On Jeep , Those Two Persons Tried To Run Away And Then They Were Arrested And On Seeing Them Head Constable Naseemuddin And Constable Vidyasagar Shukla Told The S.I. That These Very Persons Had Thrown Bombs Upon Them On 30.10.2001 And That Their Names Were Pintoo And Anju Sonkar . A Search Was Taken And Upon Search 18 Silver Lakshas And One Golden Chain Were Recovered From The Back Pocket Of Pintoo. The Other Person Told His Name Anju Sonkar And Upon His Search A Potali Was Recovered From His Possession And In That Potali One Silver Belt , One Golden Chain, 46 Coins Of Rs. 5/- Denomination Each , 18 Coins Of Rs. 2/- Denomination Each , 230 Coins Of Re.1/- Domination Each , 74 Coins Of 50 Paise Denomination Each, 11 Coins Of 25 Paise Each , Total Rs. 659/- And 75 Paise Were Recovered From Him, And Upon Interrogation They Allegedly Confessed To Have Stolen These Ornaments And Cash From The House Of Vijai Kumar On 26.10.01. A Large Number Of Persons Had Collected There, And Out Of Them One Person With His Wife Came Out And Told That His Name Was Vijay Kumar And His Wife's Name Was Kusum Who Identified All The Ornaments And Stated That These Ornaments Belonged To Her . The Recovery Memo Was Prepared In The Presence Of One Raj Kumar Sonkar .

Thereafter Vijay Kumar Moved An Application For Release Of The Above Ornaments . This Application Was Rejected By The A.C.J.M. Allahabad Vide His Order Dated 20.11.01 Mentioning Therein That The Applicant Had Adduced A Receipt Of The Ornaments But It Was Not Prima Facie Proved That The Applicant Was Owner Of The Recovered Ornaments. Aggrieved With That Order The Applicant Filed Criminal Revision No. 245 Of 2002 Before The Learned Sessions Judge Which Was Heard And Decided By Sri P.K. Srivastava Addl. Sessions Judge, Court No.17, Allahabad Vide His Judgement And Order Dated 15.5.2002. He Was Of The View That It Was Not Sufficiently Proved That The Applicant Was Owner Of The Ornaments And That The Ornaments Were Case Property And They Will Be Required To Be Produced Before The Court At The Time Of Hearing Of The Case , Hence There Was No Justification For Releasing Those Ornaments. The Revision Was Therefore Dismissed. Aggrieved With These Two Orders The Applicant Filed The Present Application Under Section 482 Cr.P.C.

I Have Heard The Learned Counsel For Applicant As Well As The Learned A.G.A. For The State.

In This Case Renu And Pintoo Were Impleaded As Opposite Parties No. 2 And 3. Renu Was Served Personally But Pintoo Was Not Served And A Report Was Received That Smt. Renu, Who Is Sister Of Pintoo, Had Told That Pintoo Was Not Residing With Her And There Was No Information As To Where Pintoo Was Residing. It Further Appears From Perusal Of The Order Sheet Of The Case Pending Before The Magistrate That A Charge Sheet Has Already Been Submitted In The Above Case Against These Persons But Pintoo Is Not Appearing Before The Court And Non Bailable Warrants Are Repeatedly Being Issued Against Him, And As Such I Am Disposing Of This Application Under Section 482 Cr.P.C. After Hearing The Learned Counsel For The Applicant As Well As The Learned A.G.A. For The State.

It Is To Be Seen That The Applicant Had Moved An Application Before The Trial Court For Release Of The Ornaments Claiming That He Is Owner Of These Ornaments. It Has Also Been Alleged That These Ornaments Were Recovered From Possession Of The Accused On The Public Way . A Crowd Had Collected There And Vijay Kumar And His Wife Kusum Were Also Present In That Crowd And At That Time Kusum Identified All These Ornaments As Of Her Own. It Is To Be Seen That Theft Of These Ornaments Was Reported At The Police Station On 27.10.2001 And This Recovery Had Taken Place On 2.11.2001 And The Accused At The Time Of Their Arrest Allegedly Confessed To Have Stolen These Ornaments And Cash From The House Of The Applicant Vijay Kumar. It Is Also To Be Seen That Soon After The Above Recovery The Applicant Had Moved An Application For Release Of These Ornaments Supported With The Receipt Which Contained Description Of Those Ornaments, And An Affidavit In Support Of The Application Was Also Filed .
It May Be Mentioned That The Accused From Whose Possession These Ornaments Were Recovered Has Not Made Any Counter Claim So Far Though The Period Of About Six Years Has Elapsed From The Date Of Recovery . The Claim Of The Applicant Was Disallowed By The Courts Below Mainly On Two Grounds . The First Ground Was That The Applicant Had Not Satisfactorily Proved His Title To The Ornaments, And The Second Ground Was That These Ornaments Were Case Property And Those Were To Be Produced In Court At The Time Of Evidence. Now It Is To Be Seen That So Far As The Question Of Title Is Concerned, The Applicant Had Filed The Receipt And The Affidavit Of The Goldsmith To Show His Title To The Ornaments. His Title Has Not Been Denied By Any Person, Nor Any One Else Claimed Title To These Ornaments. As Such When There Is No Other Claimant Except The Applicant, The Ornaments Should Be Given Into His Supurdagi After Requiring Him To Execute A Personal Bond With Two Sureties Of The Amount To Be Fixed By The Court Concerned After Having An Undertaking From The Applicant That During The Pendency Of The Case He Will Keep The Ornaments In Safe Custody And Will Not Transfer Them In Any Manner And Will Produce The Same Before The Court Whenever Required To Do So; And That If Any Other Claimant Appears And If That Claim Of That Person Is Found To Be Genuine By The Court , He Shall Return These Ornaments For Being Delivered To That Person. This Undertaking Shall Also Fulfil The Requirement Of Production Of These Ornaments At The Time Of Evidence And The Prosecution Case Shall Not Suffer Because The Applicant Shall Be Bound To Produce The Ornaments At The Time Of Evidence.
It Is Also To Be Seen That A Perusal Of Order Sheet Of The File Of The Trial Court Reveals That Even After Lapse Of Six Years The Charge Has Not Yet Been Framed In The Case, And The Accused Pintoo Is Still Not Appearing, And So There Is No Possibility Of Early Disposal Of The Case. Under These Circumstances There Is No Justification For Keeping These Ornaments In Malkhana.
The Application Under Section 482 Cr.P.C. Is, Therefore, Allowed And It Is Hereby Ordered That The Ornaments Which Were Recovered From Custody Of The Accused Persons May Be Given Into The Supurdagai Of The Applicant On Execution Of Personal Bond With Two Sureties Of The Amount To The Satisfaction Of The Trial Court Concerned, And On His Giving An Undertaking To The Effect That He Shall Keep All These Ornaments In The Present Form During The Pendency Of The Criminal Case And Shall Not Transfer The Same In Any Manner And Shall Produce Them Whenever Required By The Court, And That If Any Other Claimant Appears To Claim These Ornaments, And If His Claim Is Found To Be Genuine By The Court , The Applicant Shall Deposit These Ornaments In The Court For Being Handed Over To That Claimant.

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