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Gujarat High Court

Nilay Kirtibhai Shah vs State Of Gujarat on 19 December, 2023

Author: A.S. Supehia

Bench: A.S. Supehia

                                                                                 NEUTRAL CITATION




     R/CR.A/1119/2023                            JUDGMENT DATED: 19/12/2023

                                                                                  undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL APPEAL (MUDDAMAL) NO. 1119 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
==========================================================
1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                          NILAY KIRTIBHAI SHAH
                                  Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE VIMAL K. VYAS

                            Date : 19/12/2023
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Admit. Learned APP waives service of notice of admission for and on behalf of the respondent-State.

NEUTRAL CITATION R/CR.A/1119/2023 JUDGMENT DATED: 19/12/2023 undefined

2. The present appeal has been filed seeking following prayers"

"The Hon'ble Court may be pleased to allow this appeal by quashing and setting aside the paragraph no.3 of judgment and order passed in Sessions Case No.165 of 2018 dated 23.03.2023 passed by the learned Addl. Sessions Judge, Rajkot with regard to order /direction for Muddamal in the facts and circumstances of the present case."

3. The present appeal is filed under Section 454 of the Criminal Procedure Code, 1973. By way of the present appeal, the appellant who is victim has assailed the operative part of the judgment and order dated 23.3.2023 in Sessions Case No.165 of 2018. By the operative orders, the trial Court has directed the muddamal article gold to be confiscated and deposited before the State.

4. The brief facts of the case are that an F.I.R. came to be registered on 14.7.2018 by Bhavinbhai Vasantbhai Zinzuvadiya with Ajidem Police Station, Rajkot as C.R. No. I- 174 of 018 for the offences punishable under Sections 302, 364 and 392 of the Indian Penal Code, 1806. It is alleged that father of the complainant namely Vasantbhai Bhogilal, who was serving with Aditya Elegance was killed by unknown accused and gold of around 3.200 Kgs worth Rs.1 Crore was looted by the accused and thereby committed offence of loot and murder. Pursuant to the registration of F.I.R, during the course of investigation, the Investigating Officer has added Sections 328, 120-B, 201 and 114 of the IPC. Further, two accused were arrested namely Bharatbhai Lathigara and Sumit Lathigara. During the course of Investigation, Muddamal gold as narrated in the F.I.R was recovered at the instance of accused from the various persons and thereafter, the charge sheet came to be filed.

NEUTRAL CITATION R/CR.A/1119/2023 JUDGMENT DATED: 19/12/2023 undefined

5. Learned advocate Mr. Ashish Dagli for the appellant has submitted that during pendency of the trial, appropriate application was filed by the appellant seeking custody of muddamal. He has further pointed out that pursuant to the application being Criminal Misc. Application No.591 of 2019 at Exh.1 was made by the present appellant in order to claim the muddamal article, the same was withdrawn on 12.11.2021, with a condition to file afresh application at an appropriate stage.

6. Learned advocate Mr. Dagli has referred to the report of the Investigating Officer dated 25.3.2019, wherein and whereby, the muddamal articles are referred and it is specifically observed that if the muddamal article and gold are handed over to the present appellant, they would not have any objection. It is submitted that in view of the opinion and the report of the Investigating Officer, the trial Court was not justified in directing the muddamal article to be confiscated without holding any inquiry. He urged that the aforesaid direction is concerned, the same be set aside.

7. Per Contra, learned APP Mr. Bhargav Pandya for the respondent -State has submitted that trial Court has appropriately confiscated the muddamal article and is ordered to be deposited before the State.

8. We have heard the learned advocates appearing for the respective parties. It is not in dispute that the present appellant had made an application being Criminal Misc. Application No. 591 of 2019 claiming the muddamal article, which was stolen and thereafter converted into gold nuggets by the accused, however, the said application was withdrawn. By the order dated 12.11.2021, the application was withdrawn, with a liberty reserved in favour of Page 3 of 4 Downloaded on : Thu Dec 21 20:38:50 IST 2023 NEUTRAL CITATION R/CR.A/1119/2023 JUDGMENT DATED: 19/12/2023 undefined the present appellant to file afresh at appropriate stage.

9. It is not in dispute that by the report dated 25.3.2019, the Investigating Officer has opined in favour of the appellant that in case the muddamal article of gold, which has been converted into nuggets and Rs. 3 lakhs cash, if are handed over to the appellant, he has not objection. Though such report was available and an application was filed, the trial Court while passing the final order, has directed that such muddamal article to be confiscated.

10. The order does not in any manner reveals that an inquiry was undertaken by the trial Court under the provision of Section 452 of the Cr.PC. The trial Court was supposed to examine the claim of the appellant before ordering confiscation of the gold nuggets. Under the circumstances, the impugned judgment and order so far as it relates to the confiscation of the gold - muddamal article is hereby quashed and set aside. The applicant shall prefer an appropriate application before the trial Court, claiming the muddamal articles and after hearing all the stake-holders, the trial Court shall pass necessary order under the provisions of Section 452 of the Cr.PC, deciding the claim of such muddamal article. It is clarified that the entire exercise be completed within a period of three months.

11. The present appeal is allowed to the aforesaid extent.

R & P be sent back to the concerned trial Court.

(A. S. SUPEHIA, J) (VIMAL K. VYAS, J) prk Page 4 of 4 Downloaded on : Thu Dec 21 20:38:50 IST 2023