Rajasthan High Court - Jodhpur
Anandi Lal vs State And Anr on 7 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
(1 of 10) [CRLA-527/1993]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 527/1993
Anandi Lal
----Appellant
Versus
State And Anr.
----Respondent
For Appellant(s) : Mr. N.K. Rastogi.
For Respondent(s) : Mr. Mukhtiyar Khan, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 07/05/2022 In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
The appeal has been preferred claiming the following reliefs:-
" It is, therefore, prayed that the appeal may kindly be allowed and the order dated 01/10/93 passed by the trial court be set aside in respect of the property ordered to be restored to Respondent No.2 and the same be ordered to be restored to the appellant."
Learned counsel for the appellant submits that the recovery has been wrongfully shown to have effected in the police station, which is evident from the contradictory and inconsistent depositions made by certain other witnesses, who have categorically deposed that the recovery in question had happened at Nagar Palika.
(Downloaded on 11/05/2022 at 08:25:26 PM)(2 of 10) [CRLA-527/1993] Learned counsel for the appellant further submits that there was no proof that the Ramnavmi in question belongs to the so called owner. Learned counsel for the appellant also submits that once the appellant has been acquitted and the court has not found that Anandi Lal and Ram Sahai had caused selling of the stolen articles, then the order of releasing the Ram Navmi article No.6 in favour of PW-5, Shanker is not in accordance with law.
Learned counsel for the appellant also submits that it is settled principle of law that once a person has been acquitted of the charge in the cases like the present one, then the issue of any right or liability (ownership, in particular) of the respective parties qua any article, has to be dealt with by the Civil Court.
Learned counsel for the appellant submits that the present assailment is further sustainable, in light of the fact that PW-5 Shanker, in whose favour the article No.6 was ordered to be released, has not whispered even a single word before the learned trial court regarding his ownership in connection with the said article, and thus, when the said claim was never raised at the appropriate stage, the same cannot be gone into at a later stage.
Learned counsel for the appellant has relied upon the judgment rendered by Hon'ble Apex Court in State Bank of India Vs. Rajendra Kumar Singh & Ors. reported in AIR 1969 SC 401 (V 56 C79), relevant portion reads as under:-
"5. The next question which arises in this appeal is whether the High Court was justified on merits in ordering the currency notes to be returned to respondents 1 and 2. It was argued by Mr. Mishra that the High Court hat a discretion under the statute as to whom the property was to be returned and there was no reason why this Court (Downloaded on 11/05/2022 at 08:25:26 PM) (3 of 10) [CRLA-527/1993] should interfere with such exercise of discretion by the High Court. We are unable to accent the argument. It iS true that sections 517 and 520 of the Code of Criminal Procedure confer a discretion on the High Court as regards the disposal of the property seized or produced before it or regarding which any offence was said to have been committed. But as we shall presently show the High Court has not exercised its discretion according to proper legal principle and its order is hence liable to be set aside. It was stated by Mr. Mishra that the question involved in (1) A.I.R. 1962 S.C. 1110 this case is whether as to which out of two innocent parties should suffer, viz.; the person who lost the property due to the criminal, act of another or the person to whom the property (currency notes) had been delivered in the normal course of its business. It is not, however, correct to say that respondents 1 and 2 are equally innocent because respondents 1 and 2 had admittedly handed over the currency notes to respondent No. 3 "for the criminal purpose of duplication". It was indeed urged on behalf of the appellant that respondents 1 and2 had entered into a criminal conspiracy with respondent No. 3 for 'duplicating' the currency notes. In any event, we are satisfied that the High Court was in error in directing the return of the currency notes to respondents 1 and 2. The reason is that the property in coins and currency notes passes by mere delivery and it is the clearest exception to the rule Nemo dat quod non habat. This exception was engrafted in the interest of commercial necessity. But the exception only applies if the transferee of the coin. or currency notes takes in good faith for value and without notice of a defect in the title of the transferor. The rule is stated by Wills J. in Whistler v. Forster(1) as follows :-
"The general rule of law is undoubted, that no one can transfer a better title than he himself possesses: Nemo dat quod non habat. To this there ,are some exceptions; one of which arises out of the rule of the law merchant as to negotiable instruments. These, being part of the currency, are subject to. the same rule as money: and if such an instrument be transferred in good faith, for value, before it is overdue, it becomes available in the hands of the holder, notwithstanding fraud which would render it unavailable in the hands of a previous holder."
6. In the present case the appellant asserted that it had obtained the currency notes in the normal course of its business and without any knowledge or suspicion of their having been involved in the commission of any offence. The respondents have not alleged fraud or lack of good (Downloaded on 11/05/2022 at 08:25:26 PM) (4 of 10) [CRLA-527/1993] faith on the part of the appellant. The appellant hence contended that the property in the currency notes, passed in its favour by mere delivery and the appellant "had a right to possess' the currency notes within the meaning of Section 517 of the Code of Criminal Procedure. We do not wish to express any concluded opinion in this case on the ultimate question of liability for payment of the money as between the appellant on the one hand and respondents 1 and 2 on the other. But we are of opinion that in the circumstances of this case the High Court should have directed the return of the said currency notes to the appellant which had the "right to possess" the currency notes within the language of Section 517 of the Code of Criminal Procedure.
7. we accordingly allow this appeal, set aside the order of the High Court dated April 5, 1963 and direct that the 21 currency notes of the denomination of Rs. 1000 each seized by the Madhya Pradesh Police should be returned to the appellant."
Learned counsel for the appellant has further relied upon the judgment rendered by Hon'ble Orissa High Court in Raj Kishore Mahapatra & Ors. Vs. Narasingh Mishra reported in AIR 1969 Orissa 56 (V 56 C 23), relevant portion reads as under:-
"5. While acquitting the accused persons the court below found as a matter of fact that the said deity was "the joint property of both the parties" and that the accused persons had a right to the Seba Puja of the deity as marfatdars. Regarding entrustment of the deity by the complainant to the accused the findings of the court below may be quoted as follows:
(i) "It is doubtful if there was any entrustment with the deity by the complainant in favour of the accused persons......
(ii) ......it would rather be just to say that Mahapatra family acquired a right to take the deity for six days for holding Dola Jatra and truly speaking there was no entrustment of the property by P. W. 1.
(iii) ......it cannot be said that complainant entrusted the idol for purpose of discharge of any trust."
In paragraph 7 of the court's judgment, the observations of the trial court are as follows:
"In case of deity, the position is on a different footing and the law is also well settled that all (Downloaded on 11/05/2022 at 08:25:26 PM) (5 of 10) [CRLA-527/1993] the marfatdars of the deity represent the deity as a whole and not in part according to one's own share in the property. The only course open for the complainant is to file a civil suit for recovery of the possession of the deity, and also to get a declaration to the effect that Mahapatra family are only entitled to the possession of the image of the deity for specified period in a year so that it will be a legal contract, to be enforced in law. The dispute as it appears is a dispute of civil nature regarding the properties of the deity".
On the above findings and observations of the court below, it is evident that there is a dispute between the rival parties claiming possession of the deity. This being so. it is not expected under the provisions of Section 517 of the Code of Criminal Procedure to try this dispute which is of a civil nature. Their Lordships of the Madras High Court in their decision reported in Muthiah Muthirian v. Vairaperumal Muthirian, AIR 1954 Mad 214 in quoting a passage from Chitaley and Annaji Rao's Criminal Procedure Code, observed as follows;
"But a Criminal Court, as well pointed out in the exhaustive analysis in Chitaley and Annaji Rao's Criminal Procedure Code, Vol. III, 4th (1950) Edn. at page 2862, is not expected, under the provisions of Section 517 to "try"
civil cases. It is not the function of a criminal court to decide nice questions involving principles of civil law, if there is a dispute between rival parties claiming a return of the property. It should not help a party whose object is to endeavour to obtain its judgment upon a question which ought to be determined in a Civil Court. Where, therefore, there is a "doubt as to ownership" of property, or where a "question of bona fide title" by purchase or otherwise arises, the duty of the criminal court is to leave the parties to their remedy in a civil suit."
This view has been reiterated in a decision of this Court in Radhacharan Das v. Padma Charan Patnaik, (1967) 33 Cut LT 868. I would with respect quote a portion of paragraph 5 of the said decision which is as follows:
"The object of the section is to enable the Court to direct the property to be given to the person to whom it belongs, or to allow it to continue in the possession of the person in whose possession it was found. Criminal Courts are not expected to try civil cases. The (Downloaded on 11/05/2022 at 08:25:26 PM) (6 of 10) [CRLA-527/1993] section merely purports to provide a summary method for having the status quo ante. An order under this section does not decide the question of ownership of the property but merely decides the right to possession and the ownership is to be determined in the Civil Court".
In a decision of the Patna High Court in Hari'har Singh v. Nilakanth Singh, AIR 1957 Pat 685 their Lordships accepted with approval the Madras High Court view in the following manner:
"It is observed in that case ILR 1950 Mad 916 = AIR 1927 Mad 797 that where the title to seized property is doubtful, it should be returned to the person from whom it was seized, unless there are special circumstances which would render such a course unjustifiable."
The same view has been expressed by their Lordships of the Andhra Pradesh High Court in Padma Chandriah v. Pamj-womi, AIR 1960 Andh Pra 122 which is as follows:
"In such cases the proper procedure would be to adopt the normal course of returning the articles to the person from whom they were taken'.' From all these decisions it is evident that Section 517 of the Code of Criminal Procedure merely purports to provide a summary method for maintaining the status quo ante, unless of course there are special circumstances which will render such a course unjustifiable."
6. The idol in this case has been with the petitioners since some time past, and such possession, in the context of the findings of the court below as discussed above, is not without any basis or right. This being so, the deity with the ornaments and articles belonging to him should be allowed to remain in possession of the petitioner. The rival claims of the opposite party to the ownership and possession of the deity, as has been held in the cases cited above, cannot be decided in this case, and therefore if he has any such right, he may seek his relief in a proper court of law.
7. In this view of the matter, the order passed by the court below directing the petitioners to hand over physical possession of the idol of Sri Chandrasekhar Mahaprabhu along with his ornaments, clothings, seat etc. available with the petitioners, in favour of the complainant is hereby set aside, and the revision is accordingly allowed. "
(Downloaded on 11/05/2022 at 08:25:26 PM)(7 of 10) [CRLA-527/1993] Learned counsel for the appellant has also relied upon the judgment rendered by this Hon'ble Court in Ram Kishan Alias Kishan & Another Vs. State of Rajasthan reported in 1985 WLN (UC) 645, relevant portion reads as under:-
"10. The another circumstance which has been relied upon by the learned Sessions Judge to infer the implication of Ram Kishan and three other accused in crime due to the recovery of the various ornaments, in our opinion is also unworthy of reliance. It is an admitted case of Mangilal, his brothers and his son Parmanand that Mst. Sita deceased was a lady of quarrelsome nature and was absolutely secretive, Even during life time of her husband she used to stay separate from her children and other members of the family and would not show them as to what are her belongings. It has also come on record that she used to do money lending and would not trust anybody. Bejayanti, Kadies, Bangles and Kankati in the village are the ornaments which are generally worn by ladies and are of common pattern: It is true that such articles of common pattern can at times be identified either by the user or a person who has an opportunity of seeing it everyday without there being any distinguishing mark which can be disclosed. But with us is a case, where according to the prosecution witnesses themselves the deceased was living separate for last 15 or 16 years and was not even on talking terms with the grand-children. According to the FIR itself her own son Mangilal stated that Mst. Sita was very secretive and he does not know anything about her ornaments and properties. In face of such a situation it is too risky and venture some to come to a definite conclusion that the witnesses were in a position to identify the goods. No reason has been assigned as to why the identification of the goods has been got conducted in a Panchayat when a Magistrate could be available. It is always a rule of caution and prudence which has been given by various courts that the identification proceedings must be conducted by such a person in such circumstances which may inspire the confidence of the Courts before they base conviction on such identification proceedings. In the instant case the Sarpanch has admitted that he had removed the seals and sent the ornaments prior to his asking the police people to bring similar such ornaments for mixing. This sort of procedure is unwarranted by any cannon of jurisprudence. We are, therefore, unable to rely on this identification and consequently hold that the goods recovered have not been properly identified and further that they belong to deceased Mst. Sita. There is no evidence on the basis of which conviction of any of the (Downloaded on 11/05/2022 at 08:25:26 PM) (8 of 10) [CRLA-527/1993] accused can oven be thought of and as a result of the aforesaid discussion we are firmly of the opinion that it is a proper case where the prosecution story must be disbelieved.
11. In the result, we allow both these appeals, set aside the conviction and sentence imposed on the accused- appellants and acquit them of all the charges levelled against them. Accused Ram Kishan is in jail and he shall be released forthwith if not required in any other case. The other three accused-appellants, namely, Parmanand, Mst. Junibai and Siriya are on bail and they need not surrender to their bail bonds as such their bail bonds are discharged. "
Learned counsel for the appellant has relied upon the judgment rendered by this Hon'ble Court in Hemaram Vs. Ganga Ram & State of Rajasthan reported in 1980 Cr. L.R. (Raj.) 517, relevant portion reads as under:-
"4. It will not be proper to advert to the title of the parties to the ornaments Articles 1 to 10 in criminal proceedings. There is no positive material on record on which a finding can be arrived at in these proceedings that the ornaments are 'Stridhan' of Smt. Bhanwari, are owned by Gangaram. The law is settled that ordinarily when no offence is proved to have been committed in respect of any property in the custody of a person, the Court should restore it to the person from whose possession it was seized, but in exceptional cases, when the circumstances so warrant & the evidence so indicates that it would be unequitable to restore it to the possession of the person from whom it was seized. The Court may in proper exercise of its judicial discretion restore to a person whom in its opinion is the person best entitled to its possession. The question, therefore, is as to whether in the facts and circumstances of this case there can be a departure from the ordinary rule referred to above. It is not disputed that the ornaments Articles 1 to 10 were seized from the possession of Hemaram petitioner who had been acquitted of the charge levelled against him under Section 406 IPC. It was Smt. Bhanwari who is alleged to have handed-over the ornaments to the petitioner. There is evidence that some of these ornaments had also been given to Bhanwari by her former husband Bheru. Therefore, to me, there appears to be no reason that there should be a departure from ordinary rule that the possession of teh property should be restored to the person from whose possession it was seized in case that person is acquitted of the offence with which he is charged. The learned Sessions Judge, therefore, should not have ordered that the ornament be given to Gangaram as he could not have decided the (Downloaded on 11/05/2022 at 08:25:26 PM) (9 of 10) [CRLA-527/1993] rights of the parties to the ornaments in these proceedings.
5. I, therefore, accept the revision petition, set aside the order of the learned Session Judge, Merta city dated 11- 10-79 and direct that the ornaments Articles 1 to 10 be given in the custody of the petitioner on the petitioner's furnishing a personal bond in the sum of Rs. 5000/- (Rupees five thousand only) and a surety bond in the like amount to the satisfaction of the learned Munsif and Judicial Magistrate first Class Nawa, undertaking to produce these ornaments in the same condition before him as and when required to do so,. In the interest of justice I will further direct that this order shall not be implemented in our a period of six months and during this period of six months, the ornaments shall remain in the custody of the Court. If within six month's Gangaram is unable to get an order from a competent Civil Court relating to these ornaments then after the expiry of six months from today these ornaments shall be handed over to the petitioner as per directions given above. "
After hearing learned counsel for the parties and perusing the material available on record, alongwith the judgments cited at the Bar, this Court finds that it is only the benefit of doubt that has been extended to the appellant, as it is a matter of record that actually the stolen articles were recovered from him; it is only the loopholes, as noticed and pointed out by the learned trial court in its judgment, that have culminated into acquittal of the appellant, while extending him the benefit of doubt. Thus, the order of the learned trial court to the effect of directing release the custody of article No.6 Ramnavmi in favour of PW-5 Shanker cannot be faulted with, as the said conclusion and direction was based on the established fact pertaining to ownership thereof; moreover, as already recorded by the learned trial court, the issue of ownership of the said article clearly tilts in favour of PW-5 Shanker.
Thus, in the firm opinion of this Court, the challenge as laid in the present appeal is not sustainable in the eye of law, more (Downloaded on 11/05/2022 at 08:25:26 PM) (10 of 10) [CRLA-527/1993] particularly, when no legal infirmity has been pointed out by learned counsel for the appellant, in the part of the impugned order, whereby the article in question was ordered to be restored to the custody of PW-5 Shanker.
In view of the above, no case for making any interference is made out.
Consequently, the present appeal is dismissed. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
26-/Jitender/Suraj/-
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