Dalpat Bhai vs State & Anr on 27 January, 2011

[Cites 8, Cited by 0]

Rajasthan High Court - Jodhpur

Dalpat Bhai vs State & Anr on 27 January, 2011

2. Both these revision petitions are directed against the order passed by the learned Addl. District Judge (Fast Track), Jalore on 30/8/2002, whereby, inter alia upholding the conviction of accused persons Shambhoo Singh, Babulal and Chail Singh remanded the S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 2/7 matter back to the learned trial court for passing the fresh orders with respect to delivery of gold/silver ingots recovered during investigation from the respondent Dalpat Bhai son of Mani Bhai Jain and Vilas Bhai son of Sindhu Ji after giving an opportunity of hearing to them as well as to the appellant Babu Lal son of Hajarimal Jain.

3. Appeal No. 137/2002 was filed by Babulal son of Hajarimal Jain inter alia on the ground that the goods recovered from respondents Dalpat Bhai and Vilas Bhai were out of the theft articles in relation to the theft which took place in his residence on 5/8/1997 vide report lodged with the police Ex.P/3 and, thus, in relation to these goods the matter was remanded back to the learned trial court. The present revision petitions filed by these two petitioners - Dalpat Bhai and Vilas Bhai are against this direction of remand.

4. Mr.P.N.Mohanani, learned counsel appearing on behalf of these petitioners urged that under Section 386 of Cr.P.C. which enumerates powers of appellate court, such a remand order could not have been made by the learned appellate court against the present petitioners Dalpat Bhai and Vilas Bhai as they were neither accused S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 3/7 persons nor were convicted of any offence under Section 411 IPC and they were only witnesses in the trial and, therefore, upon appeal filed by Babu Lal, the learned appellate court could not have remanded the case back to the learned trial court since clause (d) of Section 386 Cr.P.C. only provides for power to `alter or reverse such order'.

5. On the other hand, learned counsel for the respondent - Babulal Mr.Pradeep Shah submitted that appeal no. 137/2002 filed by Babu Lal son of Hajarimal Jain was under Section 454 of Cr.P.C., which provides for an appeal by any person aggrieved by the order made by the court under Section 452 or Section 453 and such person may appeal against it to the court to which appeal ordinarily lie from conviction by the former court. He submitted that sub-section (2) of Section 454 Cr.P.C. clearly empowers the appellate court to `modify, alter or annul the order and make any further orders that may be just'. In view of wide powers conferred on the appellate court under Section 454(2), he submitted that the order of remand made by the learned appellate court on 30/8/2002 is perfectly justified. He also submitted that appeals filed under Section 386 are the appeals filed by accused persons except under clause (a) thereof, which are against S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 4/7 acquittal and can be filed by the State or Public Prosecutor and since separately appeals as provided under Section 454 Cr.P.C. against orders passed under Section 452 or 453 Cr.P.C. & present appeal of Babulal was under Section 454 Cr.P.C., therefore, clause (d) of Section 386 would not restrict the power of the appellate court in passing of the order of remand in the said appeal as contended by the learned counsel for the petitioners.

6. He also urged that even clause (e) of Section 386 permits the appellate court to make any amendment or any consequential or incidental order that may be just or proper, therefore, as far as remand to the learned trial court for passing appropriate order in respect to recovered goods namely; gold/silver ingots is concerned, same cannot be assailed by the present petitioners and the trial court is expected to decide the same after hearing the concerned parties upon such remand.

7. Learned counsel for the petitioners Mr.P.N.Mohanani relied upon the decision of coordinate bench of this Court in the case of Jhamak Lal vs. State of Rajasthan - 2003(1) Cr.L.R.(Raj.) 564 in S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 5/7 which it was held by the coordinate bench in para no. 5 that where there was no dispute that no ornaments were recovered and the silver ingot was recovered from Jhamak Lal, in these circumstances, the proper course was that the property be returned to the person from whom it was recovered and there was no good reason for the Court to order forfeiture of the silver in question. This case relied upon by the learned counsel for the petitioners is distinguishable on the face of it. There was no dispute before the Court in the aforesaid matter that the goods in question were recovered from Jhamak Lal and there was no other person claiming such seized goods, therefore, the order of the trial court directing forfeiture of the recovered goods was not sustained by this court and goods were directed to be returned to the petitioner Jhamak Lal. In the present case, there is rival claim between the appellant Babulal son of Hajarimal and present petitioners Dalpat Bhai and Vilas Bhai about the seized goods namely; gold/silver ingots.

8. The question of remand by the appellate court obviously falls within the parameters of powers enumerated under Section 454 Cr.P.C., which deals with the appeal arising out of the order passed S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 6/7 by the learned trial court under Section 452 and 453 Cr.P.C. The appeals under Section 386 Cr.P.C. are either by the Public Prosecutor namely under clause (a) or by the accused persons under clauses (b) to (e) and the appeal filed by the original complainant Babu Lal before the learned appellate court cannot fall within the purview of Section 386 Cr.P.C. but can only appropriately be filed and was filed under Section 454 Cr.P.C. The powers of the appellate court under Section 454 Cr.P.C. are wide enough and includes the power to remand even if the word `remand' is not specifically mentioned in Section 454 Cr.P.C. The power to modify, alter or annul the order and to make any further order that may be just as provided under Section 454 (2) Cr.P.C. clearly envisages and includes the power to remand also. Therefore, the contention of learned counsel for the petitioners that clause (d) of Section 386 Cr.P.C. which only enumerates the power to alter or reverse such order does not apply to the appeal filed by Babu Lal in the present case. Said contention of the learned counsel for the petitioners is, therefore, liable to be rejected and the same is accordingly rejected.

9. Since the order of remand is otherwise not invalid or illegal, no S.B.CRIMINAL REVISION PETITION NO. 982/2002 Dalpat Bhai vs. State of Rajasthan S.B.CRIMINAL REVISION PETITION NO. 1009/2002 Vilas Bhai vs. State of Rajasthan Order dt: 27/1/2011 7/7 interference in the same is required to be made in the present revision petitions and the learned trial court will decide the said issue upon remand by the appellate court now within a period of three months from today in accordance with law.

10. The revision petitions are accordingly dismissed. The record of the trial court be sent back forthwith.

(DR.VINEET KOTHARI), J.

item no.s-1, s-2 baweja/-

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Rajasthan High Court - Jodhpur