Excerpt
A criminal revision petition against the order dated 28.08.2020 was filed in the Jammu Kashmir High Court under Section 395, 457, 342, 34 of the Indian Penal Code. The petition was filed between Misri Bogda and Police Station Tulail and another.
Facts
On 10 July 2020, Farooq Ahmad Bogda (respondent No.2) lodged a report in Tulail Police Station against Mushtaq Ahmad Bogda, Muzamil Bogda, Wazir Bogda, Mushtaq Bogda, and Mohd. Bashir Bogda, Ghulam Bogda R/O Androot Rajouri. The report stated that the accused had entered respondent No.2’s Dokh on the night of 9th and 10th July 2020. The accused confined the family of respondent No.2 and took away 361 livestock (sheep and goat).
Taking up these allegations at the police station he filed an FIR with number 03/2020 under Section 395, 457, 342, 147,34 of the Indian Penal Code. During the course of the investigation, the police officer as per the witness’s statement found out that only 205 livestock (106 sheep and 99 goats) were stolen. The recovery memo was prepared and livestock was handed over to Haji Suraj Din, Gh. Mohd. Chaara and Javeed Ahmad Bojran in presence of the witnesses.
Respondent No.2 applied for the release of livestock. It was opposed by Mr Misri Bogda F/O Muzammil Bogda and he claimed to be the owner of the livestock. The issue was taken to the Magistrate with an order dated 28 August 2020. The possession of livestock was given to Respondent No.2. The court asked him to produce the property before the court when directed.
Arguments before the Court
Respondent No. 2 filed an application praying before the learned Magistrate for the release of the livestock. The application was opposed by petitioner Mr Misri Bodga. The petitioner prayed that he was the owner of the livestock and the police officer seized the livestock and thus, it cannot be treated as the stolen property. He also said that there was an agreement between respondent No. 2 and the petitioner. The terms of the agreement were that respondent No. 2 agreed to pay the cost of livestock in two instalments within a period of one year. The respondent failed to perform the terms of the agreement. On mutual agreement, the livestock was handed back to the petitioner. The petitioner claimed that respondent No.2 lodged a complaint against him and there was no serious intention.
Court’s Interpretation
The Hon’ble Mr Justice Sanjeev Kumar with FIR number 03/2020 dealt with the issue of ownership of the property seized by the police. It was unclear in this case and it was difficult to release the judgment in favour of the rightful owner.
Earlier, the trial court noticed that since the livestock was admittedly in possession of respondent No.2 when the occurrence took place and it was allegedly taken away or stolen by the accused persons named in the complaint. Additionally, due to the absence of proof of ownership in possession of the petitioner the case turned to be a peculiar one.
Court Judgment
The High Court of Jammu and Kashmir ordered the livestock to be released in favor of respondent No.2. Also, respondent No.2 shall, on taking possession thereof, be sold by him in the open market and prevalent market rate. The amount obtained by him shall be deposited before the learned Magistrate. The amount so deposited by respondent No.2 would remain subject to the outcome of the criminal proceedings. And additionally, the Court would not entertain any dishonesty in disposing of stock on the part of respondent No.2 and if he does any then that shall be taken as committing the contempt of court. Lastly, the court modified the petition to the aforesaid extent. The revision petition stands disposed.
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