ORDER :

“Whether the trial Court committed any illegality in rejecting the applications of the petitioners for interim custody of the properties?” is the question involved in these cases.

2. The petitioner in Crl. RP. No.507/2018 is the wife and petitioner in Crl. RP. No.508/2018 is son of one Venkataramu. Said Venkataramu was working in Silk Factory, Chamarajanagar as Marketing Assistant. Karnataka Lokayukta, Chamarajanagar, charge sheeted him in Crime No.5/2013 for the offences punishable under Sections 13[1][e] read with Section 13[2] of the Prevention of Corruption Act, 1988 alleging that being a public servant during the check period 1977 to 2013, he acquired the assets worth Rs.3,10,10,967/-[144.50%] disproportionate to his known sources of income.

3. During the course of investigation, the Investigating Officer seized certain gold jewellery and silver articles. The petitioners filed application before the trial Court under Section 457 of Cr.PC claiming interim custody of certain gold and silver articles.

4. Petitioner-Pradeep Kumar claimed interim custody of articles at Sl. Nos.1 to 26 which were seized under Mahazar Nos.131-156 subjected to PF No.16/2013. Petitioner-Sudhamani sought interim custody of articles at Sl. Nos.1 to 40 which were seized under Mahazar Nos.81-120 in PF No.16/2013.

5. The prosecution claimed that those properties were acquired by accused Venkataramu by corrupt means, whereas the petitioners claimed that they acquired those properties out of their independent income. They claimed that the said articles were required for their day to day use and they were ready to produce them whenever required.

6. The prosecution opposed the applications claiming that the said properties are liable for confiscation, if the charges are proved. The prosecution also claimed that if the properties are disposed of by the petitioners and the proceedings end in conviction, it would be difficult to retrieve the properties.

7. The trial Court, by the impugned order rejected both the applications on the ground that as per the Ordinance No.38/1944 and the provisions of the Prevention of Corruption Act, 1988, the said properties are liable for confiscation. The trial Court further held that while considering the amount of fine to be imposed as per section 16 of the PC Act, the value of the properties has to be taken into consideration.

8. Sri. P. Nataraju, learned counsel for the petitioners submits that the properties were not attached invoking Ordinance No.38/1944. He further submits that if at all the prosecution succeeds, the petitioners are ready to produce the properties whenever required. He submits that rejection of the applications of the petitioners for interim custody of the properties is contrary to the ratio of the following Judgments of the Hon’ble Supreme Court and of this Court:

[a] ‘SUNDERBHAI AMBALAL DESAI vs. STATE OF GUJARAT’ [2002] 10 SCC 283

[b] ‘GONUGUNTA BRAHMAIAH vs. STATE BY CBI POLICE’ [Crl. RP. No.2381/2013 C/w. Crl. RP. No.2280/2013 – DD 13.12.2013]

9. Sri. Venkatesh S. Arbatti, learned Special Public Prosecutor opposes the petitions on the following grounds:

[i] The petitioners did not produce any material to show that they had independent income to acquire the properties in question;

[ii] The prosecution at any stage can invoke the provisions of Ordinance No.38/1944 and attach the properties and in such event the properties are liable for confiscation;

[iii] The Judgments relied upon by the learned counsel for the petitioners are not applicable;

[iv] The trial is about to be concluded. At this stage, the applications need not be considered.

10. There is no dispute that the properties in question were seized from the custody of the accused. The identity of the property is also not in dispute. The very question for consideration in the trial is whether the properties were acquired by known sources of income of the accused. Therefore, even if the petitioners claimed that they acquired them out of their income,