Allowed

Smt Chithralekha v. State of Karnataka

Karnataka HC19 Nov 2020CRL.RP/1063/2016

Case brief

AI extract

What is this about?

A single-judge bench allowed criminal revision petitions against the High Court of Karnataka. The court set aside the trial court's order rejecting interim custody of seized properties and defreezing bank accounts, ruling that gravity of the offence is irrelevant and security suffices to prevent tampering.

What did the court decide?

The impugned order rejecting applications for interim custody of properties and defreezing bank accounts is set aside; applications are allowed subject to furnishing security, indemnity bonds, and mai

Smt Chithralekha Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2020)

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.1060/2016 C/W CRIMINAL REVISION PETITION NOS.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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CRL.R.P.NO.1060/2016:

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BETWEEN :

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SHRI RAGHAVA PATALI S/O AITHA PATALI AGED ABOUT 63 YEARS R/AT NO.2-70/5, SANNIDHI NEAR NAGAKANNIKA TEMPLE DEREBAILU KONCHADI MANGALURU-575 008 (BY SRI SHANKAR P HEGDE, ADVOCATE)

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…PETITIONER

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CRL. R.P. NO.1061/2016:

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BETWEEN :

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SMT SHARADA W/O RAGHAVA PATALI AGED ABOUT 57 YEARS R/AT NO.2-70/5, SANNIDHI NEAR NAGAKANNIKA TEMPLE DEREBAILU KONCHADI MANGALURU-575 008 …PETITIONER

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(BY SRI SHANKAR P HEGDE, ADVOCATE)

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CRL. R.P. NO.1062/2016:

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BETWEEN :

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SRI GANESH PRASAD S/O RAGHAVA PATALI

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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AGED ABOUT 32 YEARS R/AT NO.2-70/5, SANNIDHI NEAR NAGAKANNIKA TEMPLE DEREBAILU KONCHADI MANGALURU - 575 008 …PETITIONER (BY SRI SHANKAR P HEGDE, ADVOCATE)

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CRL. R.P. NO.1063/2016:

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BETWEEN :

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SMT.CHITHRALEKHA D/O RAGHAVA PATALI AGED ABOUT 30 YEARS R/AT NO.2/16, PRATHANA, PRASHANTH NAGAR PO:ASHOK NAGAR, DEREBAIL MANGALURU – 575 006 …PETITIONER (BY SRI SHANKAR P HEGDE, ADVOCATE)

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CRL. R.P. NO.1064/2016:

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BETWEEN :

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SMT.GEETHA LAXMI W/O HARISH AGED ABOUT 34 YEARS R/AT NO.2/16, PRATHANA PRASHANTH NAGAR PO:ASHOK NAGAR, DEREBAIL MANGALURU – 575 006 …PETITIONER

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(BY SRI SHANKAR P HEGDE, ADVOCATE)

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CRL. R.P. NO.1065/2016:

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BETWEEN :

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SRI SUBBA PATALI S/O LATE SRI MAHALINGA KOMARA AGED ABOUT 62 YEARS R/AT GOSADA HOUSE MOVAAR POST, KUMBDAJE VILLAGE KASARAGOD TALUK, KERALA …PETITIONER (BY SRI SHANKAR P HEGDE, ADVOCATE)

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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AND :

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STATE OF KARNATAKA BY LOKAYUKTA POLICE KARNATAKA LOKAYUKTA MANGALURU-575 008 REPRESENTED BY STATE LOKAYUKTA GOVT. ADVOCATE HIGH COURT OF KARNATAKA OFFICE AT MS BUILDING AT BENGALURU – 560 001

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…RESPONDENT (COMMON)

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(BY SRI B.S.PRASAD, ADVOCATE)

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THESE CRIMINAL REVISION PETITIONS ARE FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 18.06.2016 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, AND SPECIAL COURT FOR TRIAL OF CASES RELATING TO THE PREVENTION OF CORRUPTION ACT, 1988, D.K., MANGALORE IN SPL.C.NO.32/2013 ON I.A.NOS.1 TO 6.

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THESE CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11^TH NOVEMBER 2020, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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O R D E R

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These petitions arise out of the common order dated 18.06.2016 in Special Case No.32/2013 passed by the III Additional District and Sessions Judge and Special Court for trial of cases relating to the Prevention of Corruption Act – Dakshina Kannada, Mangaluru on IA Nos.I to VI.

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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By the impugned order, the trial Court has rejected the applications of the petitioners filed under Sections 451 and 457 of Cr.P.C. read with Section 5 and 22 of the Prevention of Corruption Act, 1988 and Section 132A of the Income Tax Act, 1961 for interim custody of the properties and for defreezing their bank accounts.

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Petitioner in Crl.P.No.1061/2016 is the wife, petitioner in Crl.P.No.1062/2016 is the son, petitioners in Crl.P.Nos.1063/2016 and 1064/2016 are the daughters and petitioner in Crl.P.No.1065/2016 is the brother in law of the petitioner in Crl.P.No.1060/2016. The petitioner in Crl.P.No.1060/2016 was the accused in Crime No.11/2011

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of Lokayukta Police Station, Mangaluru. He will be referred to henceforth as accused.

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In the year 1980 the accused joined the

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service in the forest department, Mangaluru Division as Forest Guard. In the year 2011 he was serving as the Range Forest Officer in Belthangady, Mangaluru, Dakshina Kannada. On the basis of the allegations of he acquiring assets disproportionate to his known sources of income,

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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raid was conducted in his residence, office, and other connected places. During such raid and search, LIC policies, share certificates, fixed deposit receipts, driving license, registration certificates of the vehicles standing in the name of the accused and other petitioners and cash were seized.

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Respondent-Police charge sheeted the accused

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in the said case for the offences punishable under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘the PC Act’ for short). It was alleged that the accused acquired the assets in his name and in the names of his relatives disproportionate to his known source of income to the extent of Rs.53,06,113/-. On the direction of the Investigating Officer, the petitioners’ Bank accounts, FDRs etc. were freezed.

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Therefore, accused and the other petitioners filed I.A.Nos.I to VI seeking release of the properties as mentioned in the table below and the direction to Bank Manager to defreeze their accounts.

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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Sl. No.	Applicant	Particulars
1	Accused	Pass books relating 10 SB accounts, 1FDR, driving licence, 6 life Insurance Policies, 1 certificate of his share in the partnership in Government employees Cooperative society.
2	Petitioner in Crl.P.1061/16	Pass books relating to 4 bank accounts, 5 FDRs and cash of Rs.23,93,870/-.
3	Petitioner in Crl.P.1062/16	Pass book relating to 1 bank account, 1 FDR and a bond certificate of a private company
4	Petitioner in Crl.P.1063/16	Pass book relating to 1 bank account, 1 FDR and one LIC Policy
5	Petitioner in Crl.P.1064/16	Pass books relating to 2 bank accounts, 2 FDRs and one debit card
6	Petitioner in Crl.P.1065/16	RC book, 2 Insurance premium paid receipts, Life time tax paid receipt in respect of Alto Car No. KA-19 Z 7888 and pass books relating to 2 bank accounts

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The prosecution opposed the said applications.

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The trial Court by the impugned common order rejected the said applications on the following grounds:

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(i) That the offences alleged against the accused are serious in nature;

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(ii) If the interim custody of the properties is granted and the accounts are defreezed, applicants may

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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tamper the documents and thereby the entire case of the prosecution will be defeated;

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(iii) The accused and the petitioners have failed to submit proper explanation for acquisition of those properties;

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(iv) The interest of the petitioners can be safeguarded by reinvesting the proceeds of the fixed deposits and LIC policies on their maturity and investing the cash in fixed deposit.

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Learned counsel for the petitioners reiterating the grounds of the petition submits that while considering the application under Sections 451 and 457 of Cr.P.C., the gravity of offence is not relevant. He further submits that since the seizure of the articles/documents and their identity was not disputed, there was no question of the petitioners tampering or changing the identity of the properties.

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In support of his arguments, learned counsel for the petitioner relies upon the following judgments:

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(i) Shri.Gonugunta Brahmaiah and another Vs. State of Karnataka by CBI Police [Crl. R.P

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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No.2281/2013 c/w Crl.R.P. No.2280/2013, D.D. 13.12.2013]

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(ii) Sunderbhai Ambalal Desai vs. State of Gujarat (AIR 2003 SC 638)

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(iii) The State Vs. Sree Rama Reddy [(2003) ILR Karnataka 5132]

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(iv) Smt.B.R.Tanuja Vs. State of Karnataka by Lokayuktha Police (Crl.R.P.No.516/2009, D.D. 02.12.2009]

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(v) Sri.Sanjay S Patil and others Vs. State of Karnataka by Lokayuktha Police (Crl.R.P Nos.2200, 2201, 2202 & 2203 of 2010 (D.D.24.06.2010)

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(vi) Smt.Puttagowramma and others Vs. State of Karnataka by Lokayuktha Police. [Crl.R.P.Nos.417, 418 and 419 of 2010, D.D. 15.07.2010]

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(vii) Mrs.Ayeesha Shareef and another Vs. State of Karnataka by Lokayuktha Police. Crl.R.P.Nos.961 & 962 of 2009, D.D. 04.01.2010]

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(viii) Kumari Jayalaxmi Vs. State of Karnataka by Lokayuktha Police (Crl.R.P. No.435/2011, D.D. 13.07.2011)

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(ix) Kumari Jayalaxmi Vs. State of Karnataka by Lokayuktha Police. [Crl.R.P.No.776/2011, D.D. 02.08.2011)

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(x) B.Nagaratna and another Vs. State of Karnataka By Lokayuktha Police. Crl.P.Nos.11239 & 11240 of 2012, D.D. 25.09.2012]

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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(xi) T.K.Lakshminarayana Reddy Vs. State of Karnataka (Crl.R.P.No.129/2019, D.D. 27.03.2019)

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(xii) Sri.C.Mruthyunjaya Swamy and others Vs. State of Karnataka and others [W.P.Nos.21782,38450,38451,38498 of 2014, & Crl.P.No.7166/2015, D.D.22.08.2016)

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(xiii) Smt.Prathiba R and others Vs. State of Karnataka [Crl. R.P. No.1068/2014 D.D. 23.03.2015]

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(xiv) Smt.Shanta @ Kamla W/o Kariyappa Karnal Vs. State of Karnataka [2019 1 KarLJ 823;]

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(xv) Sri.V.Gopikrishna Vs. State of Karnataka [Cri.P.No.4681/2016 D.D.28.07.2016)

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Per contra, Sri B.S.Prasad, learned counsel for

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the respondents justifying the order of the trial Court submits that apparently, the accused had acquired the properties disproportionate to his known source of income in his own name and on the names of other petitioners. He further submits that the trial was about to be concluded, therefore at this stage, it may not be proper to release the properties.

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In support of his contentions, he relies upon the following four judgments.:

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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i) Smt.Rajeshwari vs. State by Lokayukta Police (Crl.R.P.No.563/2012 D.D. 28.02.2013)

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ii) State of Karnataka vs. K.Borappa & Anr. (Crl.R.P.No.817/2018 DD 31.05.2019)

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iii) Sri Gopal B.G. @ Venugopal vs. State of Karnataka (Crl.P.No.1395/2014 DD 05.04.2014)

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(iv) State of T.N. v. N.Suresh Rajan (2014) 11 SCC 709)

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A perusal of Sections 451 and 457 of Cr.P.C. which govern the interim custody of the properties seized in the criminal case indicate that whenever an application is made for interim custody of the properties, they may be returned to the person from whose custody the properties were seized or to the person who is entitled to the same.

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The only concern in such cases is that the properties shall be produced before the Court as and when required for identification in the trial and the applicant shall not tamper the properties. If at all the properties are liable for confiscation, the Court shall be in a position to recover the same.

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Though both side relied upon several judgments, the principles relating to granting of interim custody of the property in a criminal case was dealt with

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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elaborately and the guidelines were issued by the Hon’ble Supreme Court in the case of Sundarbhai’s case referred to supra . In para 7 of the aforesaid judgment, it was held as follows:

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“7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously . It would serve various purposes, namely:-

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Owner of the article would not suffer because of its remaining unused or by its misappropriation;

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Court or the police would not be required to keep the article in safe custody ;

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If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial . If necessary, evidence could also be recorded describing the nature of the property in detail; and

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The jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tempering with the articles.”

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(Emphasis supplied)

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Further in para 8 of the said judgment it was

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held that the object of Sections 451 and 457 of Cr.P.C. seems to be that any property which is in control of the

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed regarding the disposal of the property.

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In para 21 of the judgment it was held that

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the power of the Magistrate for disposal of the property shall be promptly exercised and the properties not kept for a long time in the Police Station in any case for not

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more than 15 days to one month .

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As can be noticed from the judgment in Sunderbai’s case and Sections 451 and 457 Cr.P.C., gravity of the offence is not relevant in considering the application for interim custody of the seized properties.

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The other ground of rejection by the Trial Court was that the petitioner was likely to tamper the documents/properties sought to be released and that works out fatal to the prosecution case. The properties sought to be released were the documents like Registration certificates, Vehicle Tax Paid receipts, Driving Licence, Fixed Deposit receipts, Bank passbooks etc. Atleast the documents like Registration certificates, Vehicle

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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Tax Paid receipts, Driving Licence and bank pass books were required for day today use of the petitioners.

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The petitioners have admitted seizure of the documents/properties and their identity. Therefore, it was open to the trial Court to make an inventory of the documents, prepare a mahazar, keep the attested copies of those documents and return the originals following the guidelines issued in Sunderbhai’s case. In such event, there is no scope for the petitioners to dispute the identity of the properties during trial and remedy the apprehension of the prosecution in that regard.

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So far as the apprehension of the trial court that if the bank accounts are defreezed and cash is released, it may not be possible for the prosecution to retrieve the money. Admittedly, freezed bank accounts were not attached invoking the provisions of Criminal Law Amendment Ordinance, 1944. Therefore, those properties were not liable for confiscation.

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At the most, in the event of conviction of the accused under Section 13(1)(e) read with Section 13(2) of

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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the PC Act, he would be liable to the sentence of imprisonment for seven years and fine. The Court can decide the amount of fine taking into consideration the factors enumerated in Section 16 of the PC Act.

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Freezing of the bank accounts , FDRs and stagnation of the cash seized not only causes inconvenience to the petitioners, but also affects the economy and runs contrary to the spirit of the judgment in Sunderbhai’s case. Though both counsels relied on several other judgments of this Court, since the judgment of the Hon’ble Supreme Court in Sunderbhai’s case covers all aspects, it is not necessary to refer to each of the judgments again. The Supreme Court judgment in N.Suresh Rajan’s case relied upon by the Special Public Prosecutor dealt with the issue of discharge of the accused. Therefore the said judgment is not applicable.

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21. For the aforesaid reasons, the impugned order

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of rejection of the applications of the petitioner for grant of interim custody of the properties and defreezing of the accounts is unsustainable in law. Therefore, the petitions

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Crl.R.P.No.1060/2016 C/w Crl.R.P.Nos.1061/2016, 1062/2016, 1063/2016, 1064/2016, 1065/2016

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are allowed. The impugned order of Trial Court rejecting

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IA Nos.I to VI is hereby set aside.

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I.A.Nos.I to VI filed in Spl.C.No.32/2013 before the

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trial Court for grant of interim custody of the properties and for defreezing the accounts are hereby allowed subject to the following conditions:

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i) The trial Court shall direct the prosecution to give an inventory of the properties seized.

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ii) Obtain photograph of the properties wherever required.

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iii) Release the properties to the applicants on their executing indemnity bonds and furnishing security to the extent of the value of the properties and also furnishing the bonds undertaking to produce the properties as and when required.

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akc

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Sd/JUDGE

Smt Chithralekha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Chithralekha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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