Kerala High Court
Puthiyadathu Kavu Devaswom Temple ... vs Manoharan on 22 March, 2002
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. A theft of various valuable belonging to the Puthiyedathkavu Devaswom Temple, Taliparamba, represented by the present revision petitioner, took place on 10.11.1983. Gold ornaments including a gold crown totally weighing 427 grams and silver articles weighing 4.122 Kilograms were stolen. Subsequently two persons were arrested and based on the confession statement given by the second accused part of the stolen articles as ingots were recovered from the Manohar Jewellery, of which the first respondent is a Partner. After trial, though both the accused were convicted by the trial court, this Court in a Criminal Revision acquitted the second accused.
2. The first respondent had filed C.M.P. No. 2620 of 1990 on 11.7.1985 before the trial court seeking return of the ingots. Though the petition was filed invoking Section 451 of the Cr.P.C. it was ultimately disposed of only by the transferee court after conclusion of the trial and at that time the power available with the Court was under Section 452 only. The trial court, after considering the question of return of MOs. 39 and 40, which were the ingots weighing 221 grams of gold and 1.388 kgs. of silver, allegedly made from part of the stolen articles received by the present first respondent from the second accused, ordered release of the material objects to the petitioner herein. The Sessions Court, Thalasserry in Crl.A.No. 149 of 1993, however, set aside the said order and directed return of the said ingots to the present first respondent. The challenge in the revision is with regard to the said latter order.
3. Shri. T.R. Raman Pillai, who appeared for the petitioner, submitted that in the matter of return of stolen articles the inhibition contained in Section 25 of the Indian Evidence Act and in Section 162 of the Cr.P.C. are not applicable and that such statements could very well be looked into and acted upon. According to him, the confession statement given by the second accused and the case diary statement of the present first respondent given before the Investigating Officer would clearly show that MOs. 39 and 40 were actually made out of the stolen articles that the second accused sold to the first respondent and in that perspective the impugned order is unjustified. On the other hand, the learned counsel for the first respondent relied on case law to show that normally the articles recovered from a person should, on completion of the trial, be returned to himself. He also relied on the books of accounts maintained by the first respondent to show that actually there was a forceful seizure of MOs. 39 and 40 from the business place of the first respondent and that there was in fact no admission at all by him that they were part of the stolen property. Reliance was also placed on the evidence of PW3, who claims that he actually melted certain ornaments available in the business place of the first respondent to make MOs. 39 and 40 ingots according to the dictates of the Investigating Officer and out of compulsion.
4. Section 452 of the Cr.P.C., which is the relevant provision that governs return of MOs. 39 and 40, as on the date of judgment reads as follows:
"Section 452: Order for disposal of property at conclusion of trial.
1) When an inquiry or trial in any Criminal Court is concluded, the Court may makesuch 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 itorin its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
2) An order may be made under Sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the court, engaging to restore such property to the Court if the order made under Sub-section (1) is modified or set aside on appeal or revision. (Clauses 3 & 4 omitted)
5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."
The Court has thus power to return the articles to the person who is entitled to possession thereof. The question is whether it is the petitioner or the first respondent, who is entitled to possession of MOs. 39 and 40. The legal position relied on by the petitioner with regard to the admissibility of confession and case diary statements in the matter of consideration of the person entitled to possession appears to be beyond controversy. Even when an acquittal or discharge is passed based on inadequacy or doubtfulness of the proof of guilt, the Court has a discretion in the matter of return of the article. After acquittal of the accused the Court may order return of the item to the person from whose possession it was taken. The case diary statement recorded by the Investigating Officer after questioning the person, from whose possession such articles are recovered, if found reliable, can certainly be acted upon. If any authority is required on the point reference can be made to the decision in Krishna Pillai v. Public Prosecutor (1987 (2) KLT 366). It was laid down therein that the ban in Section 162 of the Cr.P.C. is only for the use of statements in any enquiry or trial in respect of any offence under investigation and it is inapplicable to a summary enquiry held under Section 452. In fact the enquiry under Section 452 arises only after culmination of the enquiry or trial and at that stage the ban does not apply.
5. The decision in Govindachari v. The State and Anr. (1979 Crl.LJ. 428) is also on the above lines, but with regard to use of confession statements recorded during investigation. There, as in the present case, there were the confession statements of the accused besides case diary statement of the person who received the stolen article to show that the person from whom the stolen article was ultimately seized by the police had purchased it from the accused in the case, who had confessed to the guilt. It was found that the order for return of the article to the complainant, notwithstanding the fact that the accused himself was acquitted, was well justified.
6. In an enquiry of the present nature, the question of possession and right to possession alone will be considered in the normal course. Ownership and title are matters for decision by competent Civil Court in case of further dispute and an order under Section 452 will not stand in the way of such decision by competent Civil Court because return of the articles by Criminal Court under Section 453 will only be subject to decision by competent Civil Court.
7. In Thampi Chettiar Arjunan Chettiar v. State and Anr. (1985 Crl.L.J. 1158) it was found that the normal rule is that when no offence is proved to have been committed regarding the property or when it is not proved to have been used for commission of offence, the person who produced the articles or from whom the articles were seized will be preferred for restoring possession. It was, however, added, as a rider, that this is not a rule of invariable application. There can be special circumstance brought out in evidence to deviate from the general rule. In such case, the question to be considered will be as to who is better entitled to possession. Each case will have to be decided on its own merit.
8. Reliance was placed by the learned counsel for the petitioner on Exts. R2(2) and R2(3) to contend that articles stolen were out of the stock kept in the complainant's temple. Ext. R2(2) is an inventory prepared with regard to the valuables of the temple at the time when there was change of office in the post of President and consequent transfer of charge. This is a document dt. 14.5.1983. Ext. R2(3) is an order of the Deputy Commissioner (HR & CE) Department, Kozhikode, wherein there is an observation that the petitioner's temple had not maintained a register of valuables and also that though a property register was prepared and submitted to the Department, it was not approved. There is also a direction that the register of valuables with necessary particulars should be maintained. The said order was passed on 26.8.1960.
9. According to the learned counsel for the first respondent, Ext. R2(2) cannot be taken as an authentic record in view of the aforesaid observation and in view of the failure on the part of the complainant to produce any register of valuables as directed in Ext. R2(3). On the other hand, the contention of the revision petitioner is that the person who preferred the complaint had actually received the articles after physical verification on 14.5.1983 and hence Ext. R2(2) is the best evidence possible in the matter.
10. It is true that Ext. R2(2) is prepared in a sheet of paper and not in the form of a register. Nevertheless, I do not find any reason to disbelieve the case of the complainant that Ext. R2(2) was in fact prepared at the time of taking over charge and that these articles were actually available in the temple on the date of commission of the offence. The contention that the gold and silver items allegedly stolen in the case belonged to the complainant cannot hence be discarded. Even after the said finding I find no reason to defer from the findings of the learned Sessions Judge with regard to the return of the ingots. The reason is that there is overwhelming evidence available in the case to show that there was forceful seizure of certain ornaments from the shop of the first respondent. PW3, who is a goldsmith, has deposed before Court that he was asked to go over to the residence of the first respondent and later, while at the shop was directed to melt 18 bangles, 10 chains, 4 necklaces and some rings, all of gold, so as to make an ingot, to which he complied. In cross examination it was brought out from PW3 that he was actually working on the first floor of the building where the first respondent Manohar Jewellery is also situated. This is insufficient to shake the veracity of PW3. On a perusal of his evidence as a whole I find no justification to defer from the finding of the Appellate Court that he is a witness of truth. PW1- Income Tax Inspector, on summons, produced before Court certain Books of accounts, which had been in his custody and which belonged to the first respondent. In page 5 of Ext. P1 register there is an entry, which appears to be contemporaneously made, to the effect that on 27.6.1985 S. Janardhanan, Circle Inspector of Police and his party visited the shop and took by force gold ornaments weighing 221 grms. On 26.7.1985 the Superintendent of Customs had inspected this register and made an endorsement that a quantity of 221 grams of gold ornaments have been deducted from the stock as the said quantity had been taken by the Circle Inspector of Police, Temple Squad, on account of a theft case.
11. Ext. P1 is a book of account kept in the regular course of business and absolutely no reason is forthcoming to disbelieve the same. It is to be mentioned here that the petition claiming return of the articles, which is subsequently re-numbered as Crl.M.P. 2620 of 1990, was presented before the trial court by the first respondent within two weeks of the seizure aforementioned. As such the above mentioned entry or the case of the first respondent regarding forceful seizure of gold and making of ingot cannot be taken as the result of an after thought.
12. Ext. P3 is the stock register maintained by the first respondent with regard to silver items. In page 35 of Ext. P3 there is an entry that on 27.6.1985 the Circle Inspector, Temple Squad, Kozhikode, took away silver pieces of 1380 grams and the said quantity was deducted from the stock. Ext. P3 is also a register kept in the normal course of business. Ext. P2 is the register with regard to ornaments purchased and issued and Ext. P4 is the register maintained by the first respondent regarding sales and purchases. In view of the production of the aforesaid documents and in view of theirproof by PW4, who is the Superintendent of Central Excise and Customs, which affords full corroboration to the evidence of the first respondent as PW2 regarding the seizure of the items, I am of the view that the learned Appellate Judge did not commit any material illegality, irregularity or impropriety in the matter of his finding that there was no circumstance to disbelieve the case of the first respondent. It, is to be mentioned here that the seizure of the items took place nearly 19 months after the date of occurrence and the date of alleged sale by the second accused to the first respondent. It is against normal human conduct that the articles like gold crown and ornaments of temple would be preserved by a gold dealer like the first respondent for such a long period so as to afford opportunity to seizure, even in the form of ingots. Chances are more that the seized items were forcefully obtained by the police and got melted by PW3, as deposed by him.
13. During hearing the learned counsel for the first respondent brought to my notice the existence of G.O.(Rt) No. 1371/81/Home dated 16.6.1981 wherein the Government directed the police officers that no dealer should be forced to part with ingots unless he admits having received it as stolen article and having melted it into ingots. The seizure appears to have been made in violation of this.
14. There is a contention raised by the petitioner that the first respondent is an unreliable person in so far as there was seizure of illegal stock of gold from his premises which resulted in imposition of penalty. Here again, at the time of hearing the first respondent produced before me for perusal Order No. 63/91 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras, dated 24.10.1991 which shows that the orders of the lower authorities, including the Collector (Appeals), were set aside and refund of fine and penalty paid by the present first respondent was ordered. Further, the said seizure also took place nearly 8 months before the incident, which was the subject matter of the criminal case and more than 2 years before the seizure of the ingots. Revision petitioner's contention in the matter fails.
15. In the circumstances I am not satisfied that there is scope for interference with the judgment of the Appellate Court. No illegality or irregularity is evident therein.
16. I make this decision subject to the result of any suit that the revision petitioner might file to establish title over MOs. 39 and 40 subject to the law of limitation.
The Revision is dismissed with this observation.