Prasanna v. State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2016
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH Crl.OP.Nos.7571 & 7593 of 2016 Prasanna ...
Petitioner in both Crl.OPs Vs State, represented by The Inspector of Police, Puduchathiram Police Station, Namakkal District.
(Crime N0.305 of 2015) ...
Respondent in both Crl.OPs Prayer in Crl.OP.No.7571 of 2016 :- Criminal Original Petition filed under Section 439(1)b of Cr.P.C. to modify the condition imposed in Crl.M.P.No.601 of 2016 dated 5.2.2016 on the file of the Judicial Magistrate-II, Namakkal, on condition that the petitioner shall not make any change regarding model, colour or parts of the vehicle and not to make sale or mortgage. Prayer in Crl.OP.No.7593 of 2016 :- Criminal Original Petition filed under Section 439(1)b of Cr.P.C. to relax the condition to keep the articles in tact not to use the same in C.M.P.No.1294 of 2016 dated 5.3.2016 on the file of the Judicial Magistrate No.II, Namakkal.
For Petitioner :Mr.R.Sankarasubbu For Respondent :Mr.C.Emalias Additional Public Prosecutor
ORDER
These Criminal Original Petitions have been filed to modify the conditions imposed in CMP.No.601 of 2016 dated 5.2.2016 and CMP.No.1294 of 2016 dated 05.03.2016 on the file of the Judicial Magistrate Court No.II, Namakkal.
2. On the complaint lodged by Prasanna, the petitioner herein, the respondent-Police registered a case in Crime No.305 of 2015 on 01.11.2015 for an offence under Section 379 IPC against Pandian. The allegation in the complaint is that Prasanna is the owner of a lorry bearing Registration No.TN70A6305 and that he had parked the lorry on 12.10.2015, near a petrol bunk, where he normally parks his vehicle. On 14.10.2015, it was found that the lorrry had gone missing. Enquiry made by the petitioner revealed that his driver Pandian had taken away the lorry and had dismantled it and sold it somewhere. The Police registered a case in Crime No.305 of 2015 and recovered the lorry and the dismantled
spare parts from a workshop at Rayavelur, on the showing of the accused. The lorry and the spare parts were produced before the learned Judicial Magistrate No.II, Namakkal as case properties.
3. The investigation in the case has been completed and the final report has been filed in C.C.No.38 of 2016 before the learned Judicial Magistrate No.II, Namakkal, against Pandian, the accused herein, for the offence under Section 379 IPC. While so, Prasanna, the petitioner herein, filed two petitions in CMP.No.601 of 2016 and CMP.No.1294 of 2016 before the Judicial Magistrate Court No.II, Namakkal under Section 451 Cr.P.C. for return of lorry and spare parts respectively.
4. The Judicial Magistrate No.II, Namakkal, by order dated 05.02.2016 in CMP.No.601 of 2016, ordered interim custody of the lorry to the petitioner on the following conditions :
(i)The 4 photographs with CD of the vehicle to be filed.
(ii)The Original R.C.Book, Insurance Certificate have to be submitted before the Court.
(iii)As per the contention of the petitioner's counsel and as per the insurance certificate, the value of the vehicle in question is around 15 lakhs, hence the petitioner has to execute a bond for a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) each with two sureties for the like sum to the satisfaction of this Court.
(iv)The petitioner shall not made any changes regarding the model, colour or parts of the vehicle and also not to make any Sale or Mortgage etc., and (v)The petitioner has to produce the vehicle bearing Registration No.TN-70-A-6305 Ashok Leyland Lorry once in a month before this court, that is on every first working day of the month until further orders.
On failure to comply with any one of the above conditions, the order of interim custody shall be stands automatically cancelled. Accordingly with the aforesaid conditions, it is ordered to return the property in C.P.No.11/2016 to the petitioner in the interim custody and the petition is disposed of.
5. Not satisfied with the aforesaid conditions, Prasanna has filed Crl.OP.No.7571 of 2016.
6. Similarly, in CMP.No.1294 of 2016, the Judicial Magistrate No.II, Namakkal, has ordered interim custody of spare parts imposing five conditions, aggrieved by which,
Prasanna has filed Crl.OP.No.7593 of 2016.
7. Heard Mr.Sankara Subbu, learned counsel appearing for the petitioner.
8. The fact remains that the lorry belongs to the petitioner and that he is the victim of the offence. The victim of an offence should not be made to suffer since people may lose faith in the efficacy of the judicial system itself. If onerous conditions are imposed on the victim of a crime, no person would ever come to report such matters to the police station. At the same time, this Court should also strike a harmonious balance for ensuring that the evidence is not completely effaced for proving the offence against the accused. In cases of this nature, the owner of the vehicle would have availed loan and purchased it with a hope that he will be able to earn money by running the vehicle and paying the monthly dues. Such factors should also be borne in mind by the Court while dealing with return of the property petitions.
9. In this case, the lorry has been dismantled by the accused on account of which, the lorry and the spare parts have been separated. The petitioner cannot be directed to keep the lorry and spare parts in as-is-where-is condition until the disposal of the trial, which may take years.
10. It would be sufficient, if the photographs with CD of the vehicle and Panchanama drawn in the presence of the learned Magistrate by the Police are marked as exhibits during trial. A further statement can be recorded from the petitioner to the effect that after recovery, he had approached this Court and on the orders of this Court, he has taken custody of the lorry. In every case it is not that a crime cannot be proved without corpus delicti.
11. In the result, the orders passed by the Judicial Magistrate No.II, Namakkal, are modified as follows :
1. At the cost of the petitioner, photos of the lorry and spare parts should be taken in the presence of the Police and the Judicial Magistrate No.II, Namakkal, and the CD together with the print outs duly certified by the Judicial Magistrate No.II, Namakkal, shall be kept in the case file. A copy of the CD shall also be furnished to the respondent Police and the same shall be kept in their case diary.
2. The petitioner will be entitled to re-assemble the lorry and the spare parts, and thereafter, he shall take photographs of the same and submit the same to the trial Court.
3. The photocopy of the RC book and Insurance
Certificate produced by the petitioner along with the originals, shall be scrutinized by the Judicial Magistrate No.II, Namakkal, and after certifying the photocopies, the original RC book and Insurance Certificate shall be returned to the petitioner.
4. The petitioner shall execute a bond for Rs.5,00,000/- with two sureties for a like sum to the satisfaction of the Magistrate for receiving the lorry and the spare parts.
12. On the aforesaid conditions, the lorry and spare parts are directed to be returned to the petitioner. With the above modification and direction, these petitions are disposed of.
Sd/- Asst.Registrar (CS VII ) /true copy/ Sub Asst. Registrar To:
1.The Judicial Magistrate No.II Namakkal.
2.The Inspector of Police, Puduchathiram Police Station, Namakkal District.
3.The Public Prosecutor High Court, Madras.
+2 cc to M/s.R.Sankarasubbu, advocate,sr.430932,43764. ctk(co) krd 26/8 Crl.OP.Nos.7571 & 7593 of 2016