Bose vs State S.I. of Police and another

R. Balasubramanian, J.—This revision is preferred by the appellant in C.A. No. 22 of 1985 on the file of Court of Session, West Thanjavur,

Thanjavur confirming the order dated 21-12-1984 in Crl.M.P. No. 1210 of 1982 on the file of the Chief Judicial Magistrate, Thanjavur at

Kumbakonam.

A few facts are necessary and they are stated as hereunder : One Veeraraghava Iyengar is a resident of Thiruvidaimarudur. There was a theft in

his house on the night of 17-10-1977 and he gave a complaint regarding the same on 18-10-1979 to the police. The subject-matter of the theft are

two items namely, M.O. 1, a chain weighing about 35 grams and M.O. 2 a pair of bangles. A charge-sheet was filed in that case against one

Kaliamurthi on 1-4-1982. On summons the said accused appeared before the learned Chief Judicial Magistrate on 23-4-1982 and after furnishing

of records when question he pleaded guilt. Therefore, he was found guilty by the Chief Judicial Magistrate for the offences under Sections 457(2)

and 309 read with 75, I.P.C., and sentenced him to undergo rigorous imprisonment for seven months. This judgment was pronounced on 27-6-

1983. However at the conclusion of the judgment, the learned Magistrate thought fit not to pass any order regarding the disposal of the case

properties and he relegated the matter to a subsequent stage.

After that, Crl.M.P. No. 1210 of 1982 was taken on file for orders regarding the disposal of the two case properties. It cannot be out of

context to mention here that when the accused Kaliamurthi was arrested, the case properties were recovered at his instance on 8-3-1982 from

one Bose, who is the revision petitioner herein. The statement of the accused Kaliamurthi, which led to the recovery of case properties, was that he

gave the case properties to a lady called Thayyalnayagi, who sold them to one Bose, the revision petitioner herein. On the basis of the said

statement, recovery has been made from Bose. He contended before the lower Court that he was not the receiver of stolen properties; he had

given telegrams to all the higher authorities including the Chief Minister of Tamil Nadu; the investigating Officer had compelled him to part with

these goods under threat of arrest of not only himself but also his employer and therefore, he bought the two jewels from a neighbouring jewellery

shop and handed them over to the police. These are the facts on which the revision petitioner claimed for the return of the jewels to him.

The learned Magistrate conducted enquiry. In the meantime, Veeraraghava Iyengar died and his legal representatives were brought on record.

All the legal representatives filed a memo before the learned Magistrate that they have no objection for the case properties being handed over to

the widow of Veeraragha Iyengar, Rajalakshmi, who is the second respondent in this revision petition. In support of her claim, the second

respondent before this Court, beside examining herself, examined another lady, who is known to her so closely and the investigating officer was

also examined as her witness. It is the evidence of the second respondent that the jewels produced before Court as M. Os. 1 and 2 belong to her

and that they have been bought by her husband several years before. She identified the jewels before the Court. The second witness for her

corroborated her evidence on all aspects. The investigating officer had spoken about the arrest of the accused in the theft case, and about the

recovery of the case properties and production of the same before Court. In leading evidence to the contra the revision petitioner examined R.W.

1 who is the owner of the shop from where M.Os. 1 and 2 are stated to have been purchased by him on the date of seizure and he examined

himself as R.W. 2. He also examined another witness as R.W. 3, who had attested the recovery proceedings, at his instance. On behalf of the

second respondent, four exhibits have been marked and on the side of the revision petitioner, he had marked five exhibits. Exs. D-2 to D-5 are

various telegrams dated 9-3-1982 and 12-3-1982 stated to have been given by the revision petitioner to various authorities. Ex. D-1 is the bill

dated 9-3-1982 in proof of having purchased M.Os. 1 and 2 from the shop known as Nataraja Jewellery.

The learned trial Judge on an appreciation of the entire evidence, found that the second respondent had identified M.O. 1 chain and as far as

M.O. 2 is concerned, the trial Court found that her case cannot be accepted. The contra evidence let in by the revision petitioner so far as it relates

to M.O. 1 was disbelieved on more than one ground. Suffice it to say one important ground. R.W. 1 who speaks about the sale of M.Os. 1 and 2,

which were purchased under Ex. D-1 categorically admits that the jewels sold in his shop would contain the seal of the shop on the backside of the

jewels and in the bill Ex. D-1. It is mentioned that it is a dollar chain, but, however, the jewel before the Court was not a dollar chain. It is his

admission that their company seals is not found on the chain. Therefore weighing the probabilities and the evidence in the case, the learned trial

Magistrate, who was only concerned with the claim for possession of the jewels accepted the claim of the second respondent in this revision and

ordered return of M.O. 1 to her and as far as M.O. 2 is concerned, he ordered the same to be returned to the revision petitioner.

The revision petitioner questioning the order of the learned Magistrate returning M.O. 1 to the second respondent, filed C.A. No. 22 of 1985

before the Court of Session, West Thanjabur. Likewise, the second respondent aggrieved by the order of the learned Magistrate refusing to give

possession of M.O. 2 to her, filed C.A. No. 120 of 1985. Both the appeals were heard by the learned Sessions Judge who by a common

judgment dated 27-1-1987 dismissed both the appeals and thereby confirmed the order of the Magistrate regarding the disposal of M.O. 1 in

favour of the second respondent in this revision and disposal of M.O. 2 in favour of the revision petitioner. The second respondent had accepted

the order of the first appellate Judge and it is not brought to my notice that she has taken up the matter before this Court by way of any revision.

The revision petitioner aggrieved by the order of the first appellate Judge in C.A. No. 22 of 1985 had filed the present revision case.

I heard Mr. A. Raghunathan, learned counsel appearing for the petitioner and he puts forward the following points.

(1) The seizure said to have been made by the investigating officer when Kaliamurthi, the accused in the theft case was arrested, is open to doubt;

(2) On the very same date of seizure itself, the revision petitioner had given several complaints to the higher authorities in the police department as

well as to the Chief Minister of Tamil Nadu.

(3) There are corrections in the mahazar evidencing recovery of M.Os. 1 and 2 regarding the date on which it has been made; and

(4) It is the second respondent, who must be driven to civil Court on the facts of the case to establish her title than the revision petitioner.

I have carefully considered the argument put forward by the learned counsel. Before proceeding to analyse those arguments, I want to state that

at the stage of conducting enquiry u/s 452 of the Code of Criminal Procedure, the Court is not concerned with the actual right, title or interest of

any person over the properties which are the subject-matter of the case. On the other hand, the Court is primarily concerned only with the question

as to who is entitled to the immediate possession of the case properties. In other words, any order by Court u/s 452 of the Code of Criminal

Procedure would not confer any title over the properties to a person in whose favour the order is made. In this settled position of law if the

arguments of the learned counsel for the revision petitioner are analysed, I am afraid that I cannot accept any of the arguments. The truth of the

recovery of case property which is attached in the revision, has been concluded in the trial of the theft case, which ended against the accused and it

is not open to me to reopen the entire recovery proceedings and come to a conclusion which would be different than the one arrived at by the

learned Magistrate while passing the order of conviction against the accused. If I do so then there would be inconsistent judgments on the same

point, which has been concluded long before. The enquiry in a proceedings u/s 452 of the Code of Criminal Procedure, as already stated does not

pertain to the merits or demerits of the case of the respective claimants. The grounds raised by the revision petitioner regarding the truth of the

seizure before this Court might have been good ground for the accused to plead in the case where he met with the conviction and certainly it is not

open to the revision petitioner to raise a doubt about the recovery proceedings here. The argument of the learned counsel that on the probabilities

of the case, the revision petitioner should be given the custody of the articles, if accepted, would be opposed to the evidence on record. The strong

pieces of evidence on which he relied upon were the evidence of R.W. 1 and Ex. D-1. I have already noted in the earlier portion of the judgment

that the Courts below found from the admission of R.W. 1 that the jewels could not have been sold from the shop of R.W. 1 Therefore, I am of

the opinion that the second respondent in the revision petitions has established her case regarding her entitlement for immediate possession for the

jewellery. In those circumstances, if really the revision petitioner is aggrieved it is not as though he is remedyless and it is always open to him to file

a civil suit and establish his titled if he is still within the law of limitation as per the provisions of the Limitation Act. Further, both the Court below on

an appreciation of the evidence concurrently found that the second respondent in the revision identified M.O. 1, which is the subject-matter of the

revision and gave her custody. Sitting in revision, I am unable to persuade myself to take a different view when the one arrived at by the Courts

below.

For the reasons stated above, this revision case fails and is dismissed. Consequently, Crl.M.P. No. 7501 of 1987 is dismissed.

Revision dismissed.