Devamma Gowda vs State of Karnataka and Others

Jawad Rahim, J.—This appeal is against the order passed In S.C. 40/96 dated 29.6.2001 on the file of Additional Sessions Judge, Shimoga, ordering confiscation of movable properties, (jewels, etc.) seized during investigation and. produced during trial marked as M.Os 1 to 28.

I have heard the learned Counsel for both sides and perused records.

Respondents 2 to 6 were chargesheeted and tried for the offence u/s 395, I.P.C. in S.C.40/96 on the file of Additional Sessions Judge, Shimoga. Considering the evidence tendered by the prosecution through 22 witnesses and 19 documents, the learned trial judge found their evidence insufficient to convict the accused for the said offence. Consequently, by judgment dated 29.6.2001 ail of them have been acquitted.

During trial, it appears the appellant filed an application u/s 451, Cr.P.C. seeking release of the property seized in investigation and produced in trial, marked as M.Os.1 to 28. The learned judge while disposing of the case finally, was necessarily required to pass an order with regard to disposal of the property as required u/s 452, Cr.P.C. For the said purpose, he has taken into consideration the evidence tendered by PW1-Devamma (appellant herein), PW3 (Thammannagowda), PW4 (B.P. Thammannalah) and PW5 (Kalappa) regarding ownership of certain properties.

The learned trial judge noticed from the evidence of PW1 that she had laid claim in respect of items at sl. Nos.1 to 28 whereas PW3, PW4 and PW5 claimed ownership of M.Os.20(a) and 20(b) (four articles). In order to decide return of the properties, learned judge noticed Devamma who alleged she lost the property, had not furnished details of the items lost, in the complaint submitted by her husband, on the basis of which investigation was taken up. It was also noticed during investigation that the I.O. had not specifically found that articles recovered during investigation from various persons and places were properties belonging to the appellant. Consequently, the learned judge held M.Os. 1to 28 consisting of gold, silver and other valuables, were not disclosed as belonging to the complainant, and there was no material to hold that such properties belong to her exclusively. It was further noticed that PWs-3, 4 and 5 claim ownership in respect of certain items, but since the properties recovered were not subject matter of the present complaint, It was held that It was difficult to grant custody to the appellant.

No fault could be found with the said order of the learned trial judge. However, the mandate of Section 452, Cr.P.C. cannot be Ignored. The said provision requires when an inquiry or trial in any criminal court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. Sub-section (2) of Section 452 requires that an order may be made under sub-section (1) for delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the court, engaging to restore such property to the court if the order made under sub-section (1) is modified or set aside on appeal or revision. Sub-section (3) requires a court of sessions may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.

From the scheme of Section 452, Cr.P.C, It is clear that there has to be proper adjudication of the claim put forward. In that, the trial court may receive such evidence with regard to ownership of properties and then pass the order. It is not necessary that the order be passed simultaneously with the final order. The trial court can conduct separate proceedings for the purpose of passing the order u/s 452, Cr.P.C. either by itself or direct that the same be dealt with by the Chief Judicial Magistrate as required under subsection (3). Since it is noticed that M.Os. 1 to 28 are ail valuable properties, an order directing confiscation to the State does not appear to be just.

In the circumstances, the order impugned is set aside. However, the learned sessions judge is directed to entertain the application filed by the person claiming ownership, conduct an inquiry and determine ownership/possession and pass appropriate orders as required u/s 452(3), Cr.P.C The appeal stands disposed of In these terms.