Orissa High Court
Pankaj Kumar Mahakud vs State Of Odisha on 22 August, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 263 of 2017
Pankaj Kumar Mahakud .... Appellant
Mr. J.K. Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Manoranjan Mishra
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 22.08.2023
15. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Heard Mr. J.K. Panda, learned counsel for the appellant and Mr. Manoranjan Mishra, learned Addl. Standing Counsel for the State.
The appellant is the informant in Bamebari P.S. Case No.151 dated 07.09.2013 which corresponds to S.T. Case No.42 of 2014 in which twelve accused persons faced trial in the Court of learned Addl. Sessions Judge, Champua (hereinafter 'the trial Court'). The learned trial Court vide judgment and order dated 06.01.2014, found some of the accused persons guilty under section 395 of the Indian Penal Code (hereinafter 'I.P.C.') and section 27 of the Arms // 2 // act, some other accused persons under section 216A of the I.P.C. and one Sushama Barik guilty under sections 412/414 of the I.P.C. and sentenced accordingly. While convicting the accused persons, the learned trial Court abstained from passing any order regarding disposal of seized cash and property since investigation of the case was open against other accused persons.
It appears that a petition under section 452 of the Cr.P.C. was filed by the appellant for release of cash and property seized from the accused persons in favour of the appellant. The learned trial Court vide order dated 23.12.2016 has held that since order has already been passed while delivering the judgment in S.T. Case No.42 of 2014, there is no scope left to entertain such petition under section 452 Cr.P.C. filed again by the appellant for disposal of the cash seized in connection to the said case as the Court lacks jurisdiction to review its own order and accordingly, the petition filed by the appellant was rejected.
Learned counsel for the appellant contended that when specific evidence has been adduced during trial about the commission of dacoity in respect of cash, gold and silver ornaments and those were seized from the possession of the accused persons and the ornaments were also identified by P.W.14, the mother of the appellant in Court and marked as M.O.I to Page 2 of 10 // 3 // M.O.XIV, the learned trial Court while delivering the judgment should have passed an order releasing the cash seized from the accused persons so also the ornaments marked as M.O.I to M.O.XIV in favour of the appellant. Learned counsel further submitted that merely because some of the accused persons are yet to be arrested, the same cannot be a ground to retain the cash seized as well as the ornaments seized from the accused persons and while rejecting the petition filed by the appellant under section 452 Cr.P.C., illegality has been committed by the learned trial Court resulting in serious prejudice to the appellant.
When the matter was taken up on 08.08.2023, learned counsel for the State was asked to obtain instruction about the status of investigation from the Inspector in-charge of Bamebari police station in Bamebari P.S. Case No.151 dated 07.09.2013 which was stated to be pending as on the date of pronouncement of the judgment in respect of the co- accused persons in S.T. Case No.42 of 2014 on 06.01.2014.
Today, learned counsel for the State has produced the written instruction dated 18.08.2023 received from the Inspector in-charge of Bamebari police station which reflects that final form has been submitted against twelve accused persons for different offences, however, investigation was kept open and it Page 3 of 10 // 4 // is further mentioned that since it is a decade old case and as some parts of the record could not be traced at Bamebari police station, the status of investigation in respect of other accused persons are yet to be established and other property is yet to be recovered. The said written instruction is taken on record.
Mr. Mishra, learned counsel for the State submitted that even though P.W.14 has identified some of the ornaments belonging to her family members and none of the accused persons have claimed ownership over such ornaments but so far as cash amount is concerned, there is inconsistent evidence as to what was the cash actually stolen from the house of the appellant. Learned counsel further argued that in the F.I.R., though it is mentioned that cash of Rs.2 crores have been stolen but in the statement in Court, the informant has stated that cash to the tune of Rs.2.50 Crores was stolen and P.W.14 has stated that the accused persons took away cash of Rs.3 to 4 Crores which was kept in the almirah. Learned counsel further argued that it is not conceivable that a person would keep such a huge amount of cash in the house. Learned counsel further argued that since money is not identifiable properly and it was not placed in the test identification parade and since there is lack of evidence as to what was the exact amount stolen from the house of the appellant Page 4 of 10 // 5 // during course of the investigation and inconsistent evidence has been adduced by the prosecution witnesses relating to the amount of the cash stolen, it would not be proper to release the cash seized from the accused persons in favour of the appellant. Learned counsel further argued that such a petition under section 452 of the Cr.P.C. after delivery of the judgment is not maintainable in the eye of law and it would be hit by section 362 of the Cr.P.C. In support of his contentions, he placed reliance on the case of Sunita Jain -Vrs.- Pawan Kumar Jain & others reported in (2008) 2 Supreme Court Cases 705. In that case, while discussing the application of the provision under section 362 of the Cr.P.C., the Hon'ble Supreme Court has held as follows:
"The section makes it clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Court is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it."
It was further observed in that judgment that the section, however, starts with the words "save as otherwise provided by this Code". Thus, if the Code Page 5 of 10 // 6 // provides for alteration, such power can be exercised but in absence of express power, alteration or modification of judgment or order is not permissible. It is well settled that power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect. No power of review has been conferred by the Code on a criminal Court and it cannot review an order passed or judgment pronounced.
The learned trial Court while pronouncing the judgment has been pleased to hold that no order would be passed regarding disposal of the seized cash and property since investigation of the case is open against other accused persons. Therefore, by entertaining the petition filed by the appellant under section 452 of the Cr.P.C. and passing any order regarding release of the seized property or cash, it would have altered the order already passed in the impugned judgment. Ergo, the learned trial Court has appositely rejected the petition under section 452 Cr.P.C. by the impugned order holding the same to be not maintainable. However, rejection of the petition filed by the appellant under section 452 of the Cr.P.C. does not preclude this Court from exercising its power under section 482 of the Cr.P.C. in the interest of justice. In the case of popular Muthiah -Vrs.- State Page 6 of 10 // 7 // represented by Inspector of Police reported in (2006) 7 Supreme Court cases 296, it is held by the Hon'ble Supreme Court that the High Court, while exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters. Such a power can be exercised suo motu in the interest of justice.
The case was instituted on 07.01.2013 at the instance of the appellant and in the F.I.R., it was mentioned that cash and ornaments were stolen and during course of investigation, accused persons were arrested and they were charge sheeted and after conviction, they have been found guilty for commission of different offences. Even though cash, gold and silver ornaments were seized during the course of investigation, the investigating agency did not take any step to make a prayer before the learned Magistrate to conduct test identification parade in respect of the seized ornaments. The seized ornaments were produced in Court during trial when P.W.14, Shantilata Mahakud, mother of the appellant was examined and she stated in her evidence that M.O.I to M.O.II are the gold bangles which she was wearing at the time of occurrence, M.O.III is the bracelet of her son, M.O.IV is the gold chain of her Page 7 of 10 // 8 // daughter, M.O.V is the gold chain of her daughter-in- law, M.O.VI is the gold ring of her son, M.O.VII is the pair of gold earrings of her daughter-in-law, M.O.VIII is the pair of gold earrings of her daughter-in-law, M.O.IX is the pair of gold earrings of her daughter, M.O.X are the three gold nose flowers of her daughter-in-law, M.O.XI is the gold chain of her granddaughter, M.O.XII is the gold chain of her daughter, M.O.XIII is the gold chain of her son and M.O.XIV is the pair of silver paunji of her daughter. P.W.14 though was shown two silver chains which were marked as M.O.XV, one silver khadu which was marked as M.O.XVI and three silver bangles which were marked as M.O.XVII, she specifically stated that M.O.XV, M.O.XVI and M.O.XVII did not belong to her. She further stated in her cross-examination that the ornaments which were identified in Court were being used by her family members and they had kept the said ornaments in almirah and the ornaments were purchased by her and the culprits looted away the receipts of the gold ornaments. The accused persons have not claimed to be the owners of those ornaments. Therefore, the evidence of P.W.14 regarding identification of the gold ornaments i.e. M.O.I to M.O.XIV and its claims same have remained unchallenged.
Even though ten years have elapsed from the Page 8 of 10 // 9 // date of lodging of the F.I.R., the investigating agency is still unable to conclude the investigation and therefore, in my humble view, retaining the property which have been marked as M.O.I to M.O.XIV by the trial Court and not releasing the same in favour of the appellant would cause miscarriage of justice. However, since the evidence relating to the amount of cash stolen from the house of the appellant is not clear and inconsistent evidence have been adduced in that respect and neither there is any finding in the charge sheet nor in the trial Court judgment as to what was the amount of cash stolen from the house of the appellant on the date of occurrence, it would not be proper to release the cash seized from the accused persons in favour of the appellant.
In view of the foregoing discussions, the learned trial Court i.e. learned Addl. Sessions Judge, Champua shall release the ornaments marked as M.O.I to M.O.XIV in favour of the appellant forthwith and the appellant shall give an undertaking that he shall not dispose of these properties and shall produce the same as and when required by the learned trial Court.
In the case of Ashis Ranjan Mohanty (Adv.) - Vrs.- State of Odisha & others reported in (2022) Supreme Court Cases Ori 510, a Division Bench of this Court has passed detailed guidelines to be followed by the Courts while deciding applications Page 9 of 10 // 10 // under section 452 of the Cr.P.C. One of such directions was before a property is handed over to an applicant, special features of the property in question should be noted in the Court's order itself in the presence of parties or their counsel. Therefore, having due regard for the aforesaid direction issued by the Court, it is directed that before handing over the properties to the appellant, weight of each of the ornaments shall be measured and recorded with the help of a goldsmith in Court and the photographs of the ornaments shall be retained in the case record.
Accordingly, the CRLA stands disposed of. Issue urgent certified copy as per Rules. A copy of the order be communicated to the learned trial Court.
With the disposal of the CRLA, the interim application, if any, stands disposed of.
( S.K. Sahoo) Judge Sipun Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Aug-2023 10:45:00 Page 10 of 10