Madhya Pradesh High Court
Kamarlal And Anr. vs State Of M.P. And Anr. on 16 February, 1992
Equivalent citations: 1992CRILJ3407
ORDER R.K. Verma, J.
1. This is a revision petition by the accused persons against the judgment of the Sessions Judge, Guna, dated 20-1-88 passed in Criminal Appeal No. 65 of 1987, confirming the judgment of the Chief Judicial Magistrate, Guna, dated 23-7-1987 passed in Criminal Case No. 1375 of 1984 whereby the property which was the subject matter of the alleged theft, has been ordered to be delivered to the complainant-respondent No. 2 Samundersingh.
2. The facts giving rise to this revision petition briefly stated are as follows :--
On a first information report lodged by the complainant on 15-5-85 at P. S. Fatehgarh alleging theft committed in his house, in the night between 12th and 13th May 1985, in which two items of gold ornaments, a few items of silver ornaments and cash amount of Rs. 20,000/- approximately were removed by the offenders, the police registered crime No. 49/84 and the investigating officer arrested two accused persons Jaswantsingh and Kamarlal, who are the petitioners in this petition.
3. According to the prosecution, the police recovered the ornaments and the cash amount from the possession of the accused persons pursuant to memorandum of statement under Section 27 of the Evidence Act. The complainant even before filing of the challan made an application under Section 452 of the Code of Criminal Procedure, 1973, before the Chief Judicial Magistrate, Guna, on 22-6-84 for delivering the seized property under supradginama of the complainant. After filing of the challan in Court the counsel for the accused persons was unable to make a clear statement whether or not the accused persons claimed the seized property vide order sheet dated 8-8-84 recorded by the Chief Judicial Magistrate. Subsequently, on 24-9-84 a reply on behalf of the accused persons was filed where in they claimed to be the owners of the property. As such, the property was not given to the complainant on supradginama.
4. After trial of the criminal case against the accused persons, the Chief Judicial Magistrate found that the memorandum of statement under Section 27 of the Evidence Act and the seizure memo were not satisfactorily proved by the witnesses to the documents and as such the connection of the accused persons with the stolen property could not be established resulting in the acquittal of the accused persons. As regard the disposal of the property the learned Chief Judicial Magistrate found that the evidence did not show that the property belonged to the accused persons and that the complainant had specified in the first information report the properties which had been stolen from his house. Considering the evidence on record, the learned Chief Judicial Magistrate held that the stolen property and the cash amount belonged to the complainant Samundersingh.
5. On a criminal appeal (No. 85/87) under Section 454 Cr.P.C. having been filed by the accused persons in the Court of Sessions Judge, Guna the learned Sessions Judge confirmed the judgment of the learned Chief Judicial Magistrate and dismissed the appeal. Being aggrieved by the judgment of the learned Sessions Judge, Guna, the accused persons have filed this revision petition.
6. The learned counsel for the petitioners-accused has submitted that the petitioners having been acquitted of the offence of theft, the property should have been delivered to them. He has cited three decisions having bearing on the question of disposal of property at the conclusion of the trial, which are being discussed hereunder.
7. The first decision cited is in Pushkar Singh v. State of Madhya Bharat, AIR 1953 SC 508 : (1954 Cri LJ 153). In that case, the Magistrate had given a clear finding that no offence was committed in respect of the sum of Rs. 463/- and that it did not belong to the complainant. On such facts the Supreme Court restored the order of the Magistrate holding that unless it was found that the offence was committed in respect of the said property, there was no jurisdiction to the High Court to order the payment of the amount to the complainant. In the instant case, although the petitioners-accused have been acquitted of the offence of theft, it has not been found that the property belonged to them. On the contrary, on the basis of the evidence considered by the learned Magistrate, it has been found that the property belonged to the complainant.
8. The learned counsel for the petitioners-accused has next cited a decision of this Court in Prakash Chand Jain v. Jagdish, AIR 1958 MP 270 : (1958 Cri LJ 1189) in which it has been held that ordinarily when no offence has been so warranted and the evidence so indicated that it would be inequitable to restore it to the possession of the person from whom it was seized, the Court may in the proper exercise of its judicial discretion restore it to person who in its opinion is the person best entitled by its possession. This case also does not help the petitioners inasmuch as the petitioners-accused have not admitted the seized of the property from their possession and the evidence on record shows that the property belonged to the complainant.
9. Reliance has been placed on yet another decision of this Court in Nannaram v. State (1988 (II) MPWN 159) wherein even before their statement under Section 27 of the Evidence Act the statements made to the police under Section 162, Cr.P.C. could be brought in evidence during trial before the Magistrate, the accused died and the trial abated. In such circumstances, it was held that the order of disposal of property based on memorandum under Section 27 of the Evidence Act without the same having been introduced in evidence in the case, could not be sustained and the learned Magistrate was directed to examine the investigating officer to get the necessary documents from police papers proved so that the same may form part of evidence in the case to enable the learned Magistrate to decide the question of disposal of property on evidence. On facts, this case is clearly distinguishable from the instant case wherein the learned Chief Judicial Magistrate has decided the question of disposal of property based on evidence.
10. The learned counsel appearing on behalf of the complainant-accused has placed reliance on a decision of this Court of Babulal v. State of M. P. (1989 C.Cr.J 11) wherein it has been observed that the power of the Criminal Court under Section 452, Cr.P.C. to make an order for the disposal of the property at the conclusion of the trial is summary in nature and an order so made does not adjudicate upon the civil rights of the parties and the persons aggrieved are free to file a civil suit for enforcement off their rights in the property and that the provisions under the law do not bar statement of the accused made to the police officer during investigation being used to determine the person to whom custody of the property could be delivered.
11. In the instant case, the argument of the learned counsel for the petitioners-accused is that that the property in dispute belongs to the accused persons and the police seized the property from the accused persons and implanted the same for the purpose of seizure in pursuance of memorandum under Section 27 of the Evidence Act. This argument in my opinion, has no legs to stand. If the police had seized the property belonging to the accused persons from them, it was but natural that they would have made complaint of such highhandedness on the part of police at some forum. It was also expected in that circumstances that the accused persons would, from the very outset make a claim to the property as belonging to them but they advisedly kept silent for some time even after the complainant made an application under Section 452 of the Cr. P.C. The accused persons also denied any seizure of the property from them in the examination of the accused. In these circumstances, no claim has been established of the accused over the property which was the subject matter of the alleged offence of theft. In fact, the accused persons have been acquitted because they were not found to be in possession of the property which was allegedly seized from them. Moreover, as observed in the case of Babulal (supra) the disposal of property Under Section 452, Cr. P.C. is summary in nature and subject to proper adjudication of civil rights of the parties in a civil suit by the person aggrieved.
12. In view of the discussions aforesaid, I do not find any force in this revision, which is, therefore, dismissed.