When should Magistrate not ask for the execution of surety bond for releasing property on supratnama?

After   having   gone   through   the   facts   of   the   case   and   after

hearing both the sides and particularly considering the fact that the applicant

is permanent resident of Nagpur and is having his business place at Nagpur,

it was not necessary for the learned Magistrate to ask for sureties for return

of property belonging  to  the applicant/complainant, particularly when  the

conditions have been imposed to ensure production of property  Hence, the

order passed by  the learned Magistrate on 15th  December, 2012, as  far as

para No.2 of the said order is concerned, is modified as under ;

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APL) NO.42 OF 2013

Shri Naresh Nemichand Kothari Vs The State of Maharashtra, 

CORAM : M.L. TAHALIYANI, J.

DATED   : 23rd JANUARY, 2013.

1. Heard learned Counsel Mr. R.M. Daga  for  the  applicant  and

learned   Additional   Public   Prosecutor   Mr.   S.M.   Bhagde   for   the

non­applicant/State.

2. Admit.   Heard  finally by consent  of learned counsel  for  the

parties. 

3. The   applicant   feels   aggrieved   by   the   order   passed   by   the

learned   Judicial   Magistrate   First   Class,   Court   No.5,   Nagpur   on   15th

December, 2012 on Exh.1 in Misc. Criminal Application No.1841/2012.  The

learned Magistrate has directed return of seized gold ornaments and gold

nugget weighing 2659 gram and 730 miligram to the original applicant on

execution of personal bond of Rs.78,00,000/­ and bonds of two sureties in

the sum of Rs.50,00,000/­ each.

4. The applicant was the original complainant and he claims to be

the owner of the property.  The property recovered by the police is the stolen

property recovered during the course of investigation of Crime No.184/2012.

Naresh Nemichand Kothari­the applicant herein was the complainant in the

said case and it was alleged that there was theft of gold ornaments from his

shop.  The suspected person was one of the employees of the complainant.

Therefore,   offence   under   Section   381   of   the   Indian   Penal   Code   was

registered and was investigated. The property has been recovered during the

course of said investigation.

5. It is submitted by learned Counsel Mr. R.M. Daga that the order

is onerous inasmuch as the applicant has been directed to execute bonds of

two  sureties in  the  sum  of Rs.50,00,000/­ each  despite  the  fact  that  the

property belongs to the applicant.  The non­applicant does not dispute that

the property should be returned to the applicant. 

6. After   having   gone   through   the   facts   of   the   case   and   after

hearing both the sides and particularly considering the fact that the applicant

is permanent resident of Nagpur and is having his business place at Nagpur,

it was not necessary for the learned Magistrate to ask for sureties for return

of property belonging  to  the applicant/complainant, particularly when  the

conditions have been imposed to ensure production of property  Hence, the

order passed by  the learned Magistrate on 15th  December, 2012, as  far as

para No.2 of the said order is concerned, is modified as under ;

“2.      The gold ornaments and gold nugget weighing 2659 gram and

730   miligram   valued   at   about   Rs.78,00,000/­   shall   be   returned   to   the

applicant by  the Police  Inspector of Panchpaoli Police Station, Nagpur on

execution   of   his   personal   bond   of   Rs.78,00,000/­   with   the   conditions

mentioned in para No.3.”

The application accordingly stands disposed of.

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