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2020 Supreme(Kar) 599
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Krishna S. Dixit, J.
Smt. Kavitha and Ors. – Petitioners
Versus
The State of Karnataka-Investigating Officer through the Sub Inspector of Police, Chikkamagaluru Town Police Station – Represented By The State Public Prosecutor And Ors. – Respondents
Criminal Petition No. 2591 of 2020
Decided On : 09-06-2020
Advocate Appeared:
For the Petitioner:Sri. P.P. Hegde, Advocate
For the Respondent: Sri. K.S. Abhijith, HCGP
Headnote:
Information Technology Act - Section 66 – Indian Penal Code - Sections 406 & 420 – Criminal Procedure Code, 1973 - Sections 451 and 457 - Constitution of India, 1950 - Article 300A - Jurisdiction of Court - Possession of article - After service of notice learned HCGP having entered appearance for first respondent-State vehemently opposes petition contending that law requires custody of subject vehicles being with Police regard being had to nature of offence alleged learned Magistrate of Court below having considered all aspects of matter has made discretionary order refusing to deliver custody of subject vehicles to petitioners herein and lastly it is unsafe to place vehicles in custody of offenders who may use same for commission of other offences - Having heard learned counsel for parties and having perused Petition Papers this Court is inclined to grant custody of subject vehicles to petitioner–registered owners for following reasons and subject to conditions herein after stipulated - It is a matter of common knowledge that vehicles should not be kept unapplied for long lest their engines deteriorate during idle period secondly vehicles are owned by registered owners for purpose of putting them to regular use unnecessarily authorities retaining custody of vehicles would deprive registered owners of their right to use same and of keeping them roadworthy – Held, This jurisdiction of Court to record evidence should be exercised promptly so that there may not be further chance of tampering with articles - It needs to be borne in mind that ownership of property vehicles here is nothing but a bundle of rights of which right to use is one when right to property is guaranteed by Article 300A of Constitution of India, power of seizure & custody of property of a citizen should be judiciously exercised by authorities in a Welfare Society governed by rule of law existence of power per se does not justify its exercise to prejudice of persons however this is not to say that in no case seizure of property and its custody should be resorted to thrust of matter is that seizure and retention of custody of property/vehicles should be co-terminus with genuine requirement all these aspects have not been duly adverted to by Judge of court below - Going by pleadings of petitioners and submission of their counsel no grievance is made against direction for freezing of their bank accounts as rightly submitted by learned HCGP he is also justified in adding that even otherwise no case can be made out for invalidating such a direction either however learned HCGP is not right in seeking to sustain other part of impugned order on ground that it is a product of exercise of discretion by court below court has discretion in matters of this kind is not disputable however discretion means according to reason & justice reasons mentioned by court below now having been found fault with and impugned order being bereft of justice cannot be sustained - Petition succeeds
ORDER :
Petitioners being accused in Crime No.95/2019 registered by Chikkamagaluru Town Police for the offences punishable under Sections 406 & 420 of IPC, Section 66 of Information Technology Act, and under Sections 21 & 22 of Banning of Unregulated Deposit Schemes Ordinance 2019, are invoking the inherent jurisdiction of this Court for assailing the order dated 05.10.2019 rendered by the learned CJM, Chikkamagaluru whereby their applications filed under Sections 451 and 457 of Cr.PC, 1973 seeking release of their subject vehicles has been negatived; this apart, their bank accounts too have been ordered to be frozen.
2. After service of notice, the learned HCGP having entered appearance for the first respondent-State vehemently opposes the petition contending that: law requires custody of the subject vehicles being with the Police, regard being had to the nature of offence alleged; the learned Magistrate of the Court below having considered all aspects of the matter, has made discretionary order refusing to deliver custody of the subject vehicles to the petitioners herein; and lastly, it is unsafe to place the vehicles in the custody of the offenders, who may use the same for commission of other offences.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant custody of the subject vehicles to the petitioner–registered owners for the following reasons and subject to conditions herein after stipulated:
(a) It is a matter of common knowledge that the vehicles should not be kept unplyed for long, lest their engines deteriorate during the idle period; secondly the vehicles are owned by the registered owners for the purpose of putting them to regular use; unnecessarily authorities retaining the custody of the vehicles would deprive the registered owners of their right to use the same and of keeping them roadworthy;
(b) common sense tells us that it is difficult for the Police to preserve the vehicles in their original condition since they having been parked outside are ordinarily exposed to seasonal wear, more particularly sunheat and rains; no material is placed to show that they are parked in a safe precinct having protection against weather;
(c) theft of or damage to the valuable parts of the vehicles during the custody of the police/authorities also cannot be ruled out; further, in such circumstance, a citizen will not have a legal remedy since seizure & custody of the vehicles involved in offences is a matter of sovereign power vide Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, 1965 (1) SCR 375 and such other decisions of the Apex Court; and,
(d) the reasoning of the court below that all further criminal proceedings are stayed by this court and therefore, release cannot be sought for, is bit difficult to appreciate; similarly, lower court is not justified in saying that once vehicles are released, they cannot be retrieved from the accused; this apart, the petitioners are ready and willing to produce the subject vehicles whenever either Police or Authorities or the Court below require for inspection or otherwise;
4. The above apart, in Smt. Basavva Kom Dyamangouda vs State of Mysore, (2002) 10 SCC 283 at para 4, the Hon’ble Supreme Court observed:
“4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases.
5. The Apex Court in SunderbhaI Ambalal Desai vs State Of Gujarat, (2002) 10 SCC 283 has laid down the broad guidelines for exercising discretion u/s 451 of Cr.P.C when release of seized vehicles
