Govind Ram vs State of M.P. and Others

A.K. Shrivastava, J.

This appeal u/s 454 Cr. P.C. has been directed against the order dated 16-11-2002 passed by the Special Judge (Atrocity) and Additional Sessions Judge, Gwalior in case No. 57/02 Misc. Criminal dismissing the application of appellant u/s 452 Cr.C.P.

The contention of learned counsel for the appellant is that the accused persons who are respondents no. 2 and 3 in this appeal were tried for the offence punishable u/s 302/34, 394/397, 460 and 302 I.P.C. The accused persons were acquitted, put the property which was seized by the prosecution from the possession of the accused persons and which is of appellant, despite an application was submitted in the court below, the same was not delivered to him.

The contention of learned counsel is that 2 golden rings, 5 silver rings and one golden pendant are of the appellant as well as the currency notes Rs. 10,150/- (Rs. Ten thousand., one hundred and fifty) which were sized from the accused persons, are of the his. The learned counsel for the appellant has invited my attention to the memorandum of identification of these articles Ex.P/21 and Ex.P/22 and has stated that it was rightly identified by the appellant. Learned counsel has also invited my attention that he lodged the report Ex.P/20 in that regard in the concerning police station.

In support of his contention, the learned counsel has placed reliance on two decisions of this Court, they are Kamarlal and Another Vs. State of M.P. and Another, and Prakash Chandra Jain Vs. Jagdish and Another, . The single Bench decision of Kerala High Court in the case of Issac Samuel v. State of Kerala and another AIR Kerala 124 has also been placed reliance by the learned counsel for the appellant.

On the other hand, learned Public Prosecutor argued in support of the impugned order. Learned counsel appearing for the acquitted accused persons, who are respondents no. 2 and 3, did not address the Court.

After having heard the learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

The trial court has rejected the application for the return of property to the appellant only on the ground that in the judgment of acquittal, it has been directed that the property may be deposited in the government treasury in order to confiscate it and, therefore, merely the application has been filed by the appellant for return of the property no order can be passed in that regard. The view taken by the trial court is ex-facie erroneous and contrary to the law. u/s 452 Cr. P.C. if in the conclusion of a trial the court makes an order to confiscate the property it would mean that a party who is otherwise entitle to it may not file an application for its delivery and if such application is submitted the same would be rejected on the ground that an order has already been passed to confiscate the property. Under sub section (2) of Section 452 of Cr. P.C. if an application for delivery of the property is submitted by a person claiming and if he is entitled to be possession of such property the court may without any condition or that he execute a bond with or without surety may pass an order to deliver the property. It appears that the court below without going through this provision has passed the impugned order.

I have already stated herein above that vide Ex. P/20 the complainant submitted an application to the investigating officer to deliver the property. The accused persons have not claimed the property. The accused persons are silent in regard to the ownership of the property. On the other hand, the appellant is claiming the property. The accused persons have also denied the seizure and execution of the seizure memo in their examination u/s 313 Cr. C.P. (See question no. 53 to 55 of the statement of accused persons.) In the case of Kamarlal (supra) the accused persons who were tried for theft were acquitted. The complainant submitted an application for delivery of the seized property. The accused persons remained silent about their claim to property. They also denied any seizure of property from them in their examination u/s 313 Cr. P.C. In that situation, this court held that the court below rightly delivered the property to the complainant and the revision petition filed by the accused persons in that regard was dismissed. The learned counsel appearing for the appellant also placed reliance on the earlier decision of this Court Prakash Chandra (supra) wherein the same principal has been laid down. These two decisions are squarely applicable in the present case. The view of the Kerala High Court in the case of Issac (supra) in also the same. Thus, I am of the view that the trial court has erroneously rejected the application of the appellant in returning of the articles. Hence, it is hereby directed that the description whereof has been given by the appellant in his application and which were seized may be delivered to the appellant on his furnishing personal bond of Rs. 50,0007- (Rs. Fifty thousand) in terms of Section 452 of Cr.P.C.

So far as the cash amount Rs. 10,150/- (Rs. Ten thousand one hundred and fifty) is concerned the same cannot be delivered to the appellant because there in no evidence that these currency notes were the same currency notes which were taken away from the house of the appellant. No identification mark has been shown in the order to claim that the currency notes of Rs. 10,150/- (Rs. Ten thousand one hundred and fifty) are of the appellant. Thus, the currency notes of Rs. 10,150/- (Rs. Ten thousand one hundred and fifty) which were sized cannot be returned to the appellant.

For the reasons stated herein above, the appeal is allowed to the extent indicated herein above.