Karnataka High Court
Basalingappa S/O Sharanappa Ullagaddi vs Parashuram And Anr on 30 May, 2018
1 Crl.R.P.No.200086/2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MAY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION NO.200086/2016
BETWEEN:
Basalingappa S/o Sharanappa Ullagaddi,
Age : 56 Years, Occ : Agriculture,
R/o Nagur, Tq.Muddebihal,
Dist. Vijayapur.
... Petitioner
(By Sri Babu H. Metagudda, Advocate)
AND:
1. Parashuram S/o Nagappagouda Biradar,
Age : 26 Years, Occ : Agriculture,
R/o Nagur, Tq.Muddebihal,
Dist. Vijayapur.
2. The State of Karnataka,
Rep. By Public prosecutor.
... Respondents
(By Sri Mohd. Maqbool Ahmed, HCGP)
2 Crl.R.P.No.200086/2017
This Criminal Revision Petition is filed under
Section 397 R/w 401 of Cr.P.C. praying to call for the
records of the case in Criminal Appeal No.12/2015 on
the file of the I Additional Sessions Judge at Vijaypur
and that of C.C.No.51/2014 on the file of the Senior
Civil Judge and JMFC Muddebihal. Examine the
legality, the property, and correctness of the
proceedings before the lower and also the finding
contained in the two judgments. Set aside order of the
I Additional Sessions Judge at Vijaypur passed in
Criminal Appeal No.12/2015 dated 18.04.2016 learned
Sessions Judge confirming the order passed by the
Senior Civil Judge and JMFC Muddebihal in Criminal
Case No.51/2014 dated 27.01.2015 and direct the
Court below released the cash of Rs.34,000/- in favour
of the applicant/petitioner.
This petition is coming on for Orders this day, the
Court taken up for final disposal made the following:
ORDER
Heard.
2. In this case the petitioner challenges the order of the I Additional Sessions Judge, Vijayapur, dated 18.04.2016, passed in Criminal Appeal No.12/2015. By the said judgment, the first appellate Court dismissed the appeal and confirmed the order of the Senior Civil Judge and JMFC, Muddebihal, passed 3 Crl.R.P.No.200086/2017 in CC No. 51/2014, on 27.01.2015, confiscating MO-1 the cash of Rs.34,000/- to the State.
3. Talikoti police charge sheeted one Parasuram S/o Nagappagouda Biradar, in Crime No.28/2014 of their police station for the offences punishable under Sections 380 and 454 of IPC. According to the prosecution on 07.02.2014, at 8-00 a.m., when PW-1 Kumar, the PSI of Talikoti police station was on patrol duty, he found the said accused in a suspicious manner and apprehended him and conducted search on him. The accused found to possess one gold necklace weighing 1 tola two grams and cash of Rs.34,000/- and could not explain the possession of the said properties.
4. On the basis of his report, Crime No.28/2014 for the offences punishable under Sections 102 and 41 (D) of Cr.P.C., was registered. During the investigation, it was said to be revealed that 4 Crl.R.P.No.200086/2017 accused has committed theft of those properties from the house of the present petitioner. On recording statement of the petitioner, the charge sheet was filed for the offences punishable under Sections 380 and 454 of IPC as aforesaid.
5. Petitioner was cited as CW-9. The Magistrate on taking cognizance tried the accused. The petitioner was examined as PW-6. Pending trial on the application of the petitioner interim custody of the necklace was granted to him. However, after trial since the petitioner denied the theft of the property from his house, the Magistrate acquitted the accused and ordered to confiscate MO-1 cash of Rs.34,000/- to the State.
6. Petitioner challenged the said order of confiscation in criminal appeal No.12/2015. The Sessions judge by the impugned judgment dismissed the appeal holding that since the appellant denied the 5 Crl.R.P.No.200086/2017 commission of theft of properties from his house, MO-1 the cash of Rs.34,000/- cannot be said to be his property.
7. Learned counsel for the petitioner seeks to assail the order of the courts below on the ground that having confirmed the interim custody of the gold necklace. The courts below were not justified in ordering for confiscation of MO-1 the cash of Rs.34,000/-. He contends that the courts below ought to have given the custody of the cash also to the petitioner. He further submits that the order goes contrary to its own order of disposal of the necklace.
8. Sri. Mohd. Maqbul Ahamad, learned HCGP submits that the property seized in a criminal case has to be return either to the custody of the person from whom it was seized or to the person entitled to the same. He further submits that the petitioner becomes entitled to the custody of the said property, only if he 6 Crl.R.P.No.200086/2017 admits the theft of the same from his house and since in his evidence he denied the same, the courts below have rightly ordered for confiscation of the property.
9. Section 452 Cr.P.C deals with the order for disposal of property at conclusion of trial. Section 452 (1) of Cr.P.C reads as follows;-
"1) 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."
10. It is the settled law that the property seized in a criminal case and produced before the court can be disposed of to the custody of a person from whom it was seized or who is entitled to the custody of the same. 7 Crl.R.P.No.200086/2017
11. The property viz., cash of Rs.34,000/- could have been returned to the petitioner, only if he was entitled to the possession of the same or it was seized from his custody. Admittedly, in this case the gold necklace and cash of Rs.34,000/- were not seized from the custody of the petitioner. In his evidence the petitioner denied the theft of the property from his house.
12. If cash is not stolen from his house then he is not the owner of the property produced before the court. None else came forward to claim the said property. Therefore, the trial court rightly exercising the power under Section 452 of Cr.P.C ordered for confiscation of the said property to the State and the appellate court has confirmed the same.
13. Since petitioner claimed the ownership of the necklace and identified that, the interim custody of the 8 Crl.R.P.No.200086/2017 necklace was given to him. That itself does not confer any right on the petitioner to claim MO-1 the cash of Rs.34,000/- in the light of his own denial of theft of said cash from his house. This court finds no error of law in the orders of the courts below. Therefore, petition dismissed.
Sd/-
JUDGE RSP/sn