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Judgments of Supreme Court of India and High Courts

Ganesh Chakraborty vs Unknown on 8 April, 2019

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08.04.2019

Item no.7
Ct. No.22
CHC

C.R.R. No.310 of 2019

In Re:- An application under Section 482 of the Code of
Criminal Procedure.

And

In the matter of:-

Ganesh Chakraborty
… Petitioner

Mr. Soma Kar Ghosh,
… for the petitioner

Mr. Bikram Banerjee,
Ms. Riya Das
… for the o.p./wife

Ms. Sujata Das
… for the State

The impugned order dated 4.12.2018 passed by learned

Additional District Judge, 3rd Fast Track Court, Alipore, in

Criminal Motion No.379 of 2018 rejecting the criminal revision and

thereby affirming the order of the learned Magistrate dated

5.6.2018, passed by learned Chief Judicial Magistrate, Alipore in

connection with Bhowanipur Police Station Case No.450 of 2017

under Sections 498A/406 I.P.C, allowing some of the seized items

to opposite party/wife is the subject of challenge in this revisional

application.

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According to learned advocate for the revisionist Bhowaipur

Police Station Case No.450 of 2017, alleging commission of offence

under Sections 498A/406 I.P.C. was filed about 18 years after the

marriage by the wife/de-facto complainant/opposite party. The

case was filed simply to harass the revisionist/husband. According

to petitioner/husband, the locker was held by the petitioner along

with his wife/opposite party jointly in the concerned bank, wherein

valuable golden items, mostly given by the revisionist/husband to

his wife upon purchase by spending own money of the husband,

were kept deposited. The opposite party/wife on 8.3.2018 was

favoured with an order from the learned Chief Judicial Magistrate,

Alipore, whereby the Branch Manager, Allahabad Bank,

Chakraberia Branch was directed to open the locker, held by both

the parties, and to hand over the Stridhan properties to de-facto

complainant/opposite party/wife as per her identification

pursuant to inventory being made earlier in respect of the items

deposited in the locker. Out of 14 items revealed in the inventory,

7 items were identified by the opposite party/wife claiming the

same to be Stridhan properties. The learned court below by an

order dated 16.4.2018, was pleased to give an opportunity to

revisionist/husband seeing his claim over the seized items.

Learned Magistrate was of the view, that when there was claim and

counter-claim, over the articles seized, the opportunity of hearing
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was felt necessary and, accordingly, directed both the parties to

produce the document in support of their respective claim, so that

the court could effectually pass the necessary order. The date was

fixed accordingly on 20th April, 2018, when hearing was held in

presence of both the parties, which was basically intended to

extend an opportunity of hearing, keeping in mind the claim and

counter-claim over the seized items. On the next date fixed i.e. on

5th June, 2018, the revisionist/husband could not ensure his

presence before the learned court below for the reasons best

known to him and accordingly, the court was pleased to return the

7 items, out of 14 seized and deposited in the bank locker to

wife/opposite party giving a temporary custody upon execution of

a bond of Rs.2,50,000/- with conditions that the opposite

party/wife will not change the nature and character of the golden

items, nor petitioner would cause any act causing depreciation of

value of the golden ornaments with further condition to produce

the same before the court, as and when the same would be called

for.

Learned advocate for the revisionist/husband submitted that

both the courts below committed a gross illegality by passing an

order directing return of golden ornaments to wife/opposite party

in the absence of the revisionist/husband. Thus, according to

revisionist, the absence of the revisionist-husband should not be
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treated as a fatal against him, for passing an order directing return

of golden ornaments to opposite party/wife. Learned advocate for

the revisionist/husband, thus, proceeded to impress upon the

Court soliciting an opportunity of hearing in establishing the claim

of the revisionist/husband over the seized items.

Repelling the contention raised by the revisionist, the learned

advocate for the opposite party/wife submitted that some of the

golden ornaments, out of many seized, were given to wife/opposite

party in a temporary custody, upon execution of a bond imposing

stringent conditions with an aim to keep those items intact till the

decision of the case.

When temporary custody was given in respect of some of the

seized golden ornaments, there left nothing to be interfered with,

contended by the learned advocate for the opposite party.

Learned advocate, Ms. Sujata Das, representing the State

submitted that learned Magistrate duly granted opportunity to

revisionist/husband in establishing his rival claim over the seized

items. Upon consideration of such fact, the revisional court felt it

prudent not to interfere with the findings reached by the learned

Magistrate, while affirming the order of Learned Magistrate.

Admittedly, in course of inventory, 14 golden ornaments were

found deposited in the locker, maintained by the bank concerned.

The locker was opened as per order of the learned Magistrate. As
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per identification of the wife/opposite party, 7 items, out of 14

items, were given in the temporary custody of the wife/opposite

party, imposing conditions, which were basically intended to keep

the seized items intact till the decision is reached by the learned

court below. There was also conditions that the value of the golden

ornaments could not be depreciated by adopting any means, so

long the matter is pending before the court. Direction was also

there to produce those items before the Court as and when the

same would be needed.

Upon perusal of the documents, it appears that most of the

items given to wife in a temporary custody were normally usable by

a woman. The order directing return was a temporary measure

allowing custody to wife during interregnum period upon execution

of her bond cannot be quoted with a proposition of unfettered

return providing absolute ownership, so that the petitioner can

deal with the items given in her temporary custody in a manner

best suited to her upon exercising her own discretion. It is,

however, subject to final decision of this case.

When admittedly, there is a claim and counter-claim, over the

seized items between the parties, it cannot be decided without

entering into the evidence, to be adduced by the parties to this

case. The claim of respective ownership, as revealed from the rival

submissions, may be best established during the course of trial
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with collection of evidence. The case is now at the investigation

stage. The outcome of the investigation has not yet reached to

court. The claim of being seriously prejudiced for causing return of

some of the golden ornaments to wife/opposite party during the

interregnum period giving a temporary custody therefor with some

stringent conditions, can hardly be believed in the given

circumstances of the case and cannot be construed to be serious

in nature.

The revisionist/husband/petitioner is not at all remediless at

the moment, if the revisional application is disposed of giving an

opportunity to raise the points, now raises, at the time of trial

upon production of valid documents in support of ownership over

seized items.

The Court is of the view, that if such liberty is given to

revisionist/husband that would, however, subserve the purpose of

justice.

The impugned order dated 04.12.2018 passed by Learned

Additional District and Sessions Judge, 3rd Fast Track Court,

Alipore, in Criminal Motion No.379 of 2018, dismissing the

criminal revision and thereby affirming the order dated

05.06.2018, passed by Learned Chief Judicial Magistrate, Alipore,

in connection with Bhowanipur Police Station Case No.450 of 2017
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under Sections 498A/406 I.P.C, arising out of C.G.R. No.4219 of

2017, does not call for any interference.

The revisional application thus fails being without any merits.

Liberty is, however, given to revisionist/husband to raise the

points, now raises, at the time of conducting trial with production

of necessary valid documents in support of ownership so as to

establish ownership effectually over the seized items, and if any,

such point is so raised, that will be duly addressed to by the

learned trial Magistrate and dispose of the points in accordance

with the law, giving sufficient opportunity to either of the parties to

this case.

With this direction/observation, this revisional application

stands disposed of.

(Subhasis Dasgupta, J.)

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