Andhra HC (Pre-Telangana)
T. Goverdhan vs State Of A.P. Rep. By Inspector Of ... on 29 October, 1992
Equivalent citations: 1992(3)ALT663
ORDER Radhakrishna Rao, J.
1. Since common questions arise in both the cases, they were heard together and are being disposed of by a common judgment.
2. Crl.Rev.Case No. 233 of 1991 arises out of CrL.Appeal No. 10 of 1991 on the file of the 1st Additional Metropolitan Sessions Judge, Hyderabad which was dismissed confirming the order of the learned XXI Metropolitan Magistrate, Hyderabad directing the petitioner herein to return the property to the complainant.
3. Crl.P.No,859 of 1991 arises out of the dismissal of Crl.R.P. No. 359 of 1991 on the file of the 1st Additional Metropolitan Sessions Judge, Hyderabad which was filed against the order of the learned XXI Metropolitan Magistrate, Hyderabad, dismissing the petition of the petitioner herein for return of the property to him.
4. The facts leading to the filing of the above criminal revision case and criminal petition are, briefly, as follows:
On 16-2-1990, theft took place in the house of the complainant in which gold and silver ornaments were stolen along with some other house-hold articles. During the investigation, the accused was arrested and on a confession made by him, gold and silver ingots were seized from the petitioner, who is having a jewellery shop at Market Street, Secunderabad. The petitioner is the Proprietor of the said jewellery shop. Basing on the Admission made by the accused (2nd respondent in Crl.Rev.Case No. 233 of 1991), the learned XXI Metropolitan Magistrate, Hyderabad convicted the accused under Section 411 I.P.C. and sentenced him to suffer R.I for 4 months. The learned Magistrate directed the petitioner herein to return the jewellery, which was converted into gold and silver ingots, to the complainant after the appeal time. Aggrieved by the said order, the petitioner filed a criminal appeal and a criminal revision petition before the learned 1st Additional Metropolitan Sessions Judge, Hyderabad. The learned Additional Metropolitan Sessions Judge dismissed bom the criminal appeal and the criminal revision petition and confirmed the order of the learned Magistrate with regard to the return of the property to the complainant in so far as the petitioner is concerned.
5. Sri A.T.M. Rangaramanujam, the learned counsel appearing for the petitioner in both the cases, vehemently argued that the learned Magistrate erred in passing the order of return of the property without giving a notice to the petitioner herein. In support of his argument, the learned counsel placed strong reliance on the decision of the Supreme Court in State Bank of India v. Rajendra Kumar, which, inter alia, observed as follows:
"But, though the statute is silent and does not expressly require issue of any notice, there is in the eye of law, a necessary implication that the parties adversely affected should be heard before the court makes an order for return of the seized property."
6. It is a settled principle of law that where a dispute has been raised with regard to the nature and ownership of the property which was directed to be returned, the court is bound to decide the matter and to hear the concerned parties before any order to return the property is made. But when the party from whom the property has been seized has not raised any objection with regard to the nature and ownership of the property from the date of its seizure till the date of the order, it cannot be said that the person was diligent enough in prosecuting his case. If the property in question was seized in a high-handed manner and it legally belongs to the person concerned, the natural conduct of a prudent person will be to complain about the same to the higher authorities and redress his grievance. In the instant case, the petitioner haanever complained to the higher authorities with regard to the seizure of the property which was in the shape of gold and silver ingots. The very conduct of the petitioner itself shows that he is aware of the fact that the property seized from him is stolen property. In a case of voluntary confession leading to recovery of property, no notice for return of the property is necessary until and unless an application is filed alleging that the recovery is illegal. But where there is no such allegation and the party from whom the property is seized is aware of the fact that the said property is stolen property, the question of giving notice to him does not arise. In a situation where a dispute has been raised in an enquiry with regard to the nature of the property seized i.e., whether it is stolen property or not or there are rival claimants, definitely, the court is under an obligation to issue notice to the parties affected before passing the order directing return of the seized property.
7. In the instant case, the revision petitioner alleged that the police informed him that he will be cited as a witness, a notice will be sent to him and he can complain to the court with regard to the ownership of the property. If really, as mentioned earlier, the petitioner is the legal owner of the property seized, the conduct exhibited by him in sitting silent for a period of three months and complaining with regard to the ownership of the property after passing the order is definitely a strong circumstance which can be weighed against the petitioner. The application said to have been filed by the petitioner was originally typed on 4-5-1990 but it was filed into the court only on 29-8-1990. If the application was filed before passing the order by the learned Magistrate, the court would have certainly considered the same and an opportunity would have been given to the petitioner to prove his case.
8. The learned counsel for the petitioner finally argued that the complaint was with regard to theft of gold and silver ornaments whereas the property seized from the petitioner was in the shape of gold and silver ingots. It is to be borne in mind that in case of theft of gold and silver ornaments and when it is known to the receiver that they are stolen ornaments, the very first thing that will be done by the receiver of the said ornaments is to change their character by melting the ornaments and making them into gold and silver ingots with a view to suppress the evidence of possessing stolen property. In the instant case, from the very conduct exhibited by the petitioner coupled with the oral confession of the accused, it cannot be said that as the stolen property was in the shape of gold and silver ornaments, the seizure of gold and silver ingots from the petitioner is illegal.
9. For all the reasons stated above, I see no grounds to interfere with the order passed by the learned I Additional Metropolitan Sessions Judge, Hyderabad. The criminal revision case and the criminal petition are accordingly dismissed.