Gujarat High Court
Bhosale Aditya Bhimjibhai vs State Of Gujarat on 2 May, 2024
NEUTRAL CITATION
R/SCR.A/623/2024 ORDER DATED: 02/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 623 of 2024
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BHOSALE ADITYA BHIMJIBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AA ZABUAWALA(6823) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 02/05/2024
ORAL ORDER
[1.0] RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 - State of Gujarat.
[2.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 452 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioner has prayed for the following relief:
"(b) YOUR LORDSHIPS MAY BE PLEASED to issue writ of mandamus or certiorari or in nature of mandamus or certiorari or order to quash and set aside the order passed by the learned Additional Judicial Magistrate First Class at Mandi, District Kachchh, dated 27.03.2023 as well as order passed by learned 6th Additional Sessions Judge, at Bhuj, District Kachchh dated 29.08.2023 in the interest of justice;
(c) YOUR LORDSHIPS MAY BE PLEASED to issue writ of mandamus or certiorari or in nature of mandamus or Page 1 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined certiorari or order the learned Chief Judicial Magistrate Court, Mandvi, District Kachchh to hand over the custody of the muddamal gold bar seizer of receipt (Muddamal Pavti) No.106/2012 Article (1) Gold Bar Net Weight 200 GM and 140 Milligram and 19 Carat / 77.40, to the petitioner in the interest of justice;"
[3.0] An FIR being I-CR No.66 of 2012 came to be registered with Mandvi Police Station, District Kachchh for the offences punishable under Sections 454, 457, 380, 411 and 114 of the Indian Penal Code, 1860 (for short "IPC") and pursuant to investigation, charge-sheet came to be filed which culminated into Criminal Case No.182/2013 and after conclusion of trial, the learned Magistrate has been pleased to acquit all the accused.
[3.1] Thereafter, the petitioner filed an application under Section 452 of the CrPC seeking muddamal Gold Bars seized during the investigation pursuant to which inquiry came to be held wherein the learned Magistrate has been pleased to pass an order of confiscate the muddamal to the government vide order dated 27.03.2023. Being aggrieved and dissatisfied, the petitioner filed Criminal Appeal No.86/2023 and the learned 6 th Additional Sessions Judge, Bhuj-Kachchh dismissed the criminal appeal vide judgment dated 29.08.2023.
Hence, present petition.
[4.0] Heard learned advocate for the petitioner and learned APP for the respondent - State of Gujarat.
[5.0] Learned advocate for the petitioner has submitted that the accused persons are acquitted and as the muddamal articles i.e. muddamal Gold Bar Net Weight 200 GM and 140 Milligram and Page 2 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined 19 Carat / 77.40 seized vide Receipt (Muddamal Pavti) No.106/2012 (hereinafter referred to as "muddamal article") were seized from the possession of the present petitioner - original owner and the complainant has filed no claim purshis. Further, the police forcibly and illegally recovered the muddamal article from the possession of the present petitioner and panchnama was drawn. The petitioner has produced the bills of said muddamal though both the Courts below have ignored the said fact and not handed over the muddamal article to the present petitioner. When accused are acquitted and muddamal article was recovered from the possession of the petitioner then the learned trial Court should not have passed an order disposing of the muddamal in arbitrary manner. In support of his submissions, he has relied on the decision of the Hon'ble Supreme Court in the case of N. Madhavan vs. State of Kerala reported in (1979)4 SCC 1 and has requested to allow the present petition.
[6.0] Per contra, learned APP has vehemently opposed the present petition and submitted that both the Courts below have not committed any error in disposing of the muddamal article. It is submitted that earlier the petitioner had filed an application Exh.29 seeking possession of muddamal article which was not pressed during the pendency of the criminal case. Subsequent to conducting the inquiry qua muddamal article, learned Magistrate came to conclusion that at the relevant point of time, no proof of ownership of muddamal article was produced by the petitioner and the petitioner turned hostile and did not support the case of prosecution. The original owner himself has submitted a purshis stating that he has no objection if the muddamal article is Page 3 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined confiscated in favor of the government. Considering the aforesaid fact, the learned Magistrate has passed an appropriate order which has been rightly confirmed by the appellate Court and hence, petitioner is not entitled to get the muddamal. Hence, he has requested to dismiss the present petition.
[7.0] I have given thoughtful consideration to the arguments canvassed by learned advocate appearing for respective parties.
[7.1] Going through the record it reveals that the learned Magistrate has been pleased to hold an inquiry under Section 452 of the CrPC and after concluding the inquiry, recorded the evidence of the original owner from whose house muddamal article was stolen. He is examined as (PW-11, Exh.80) and complainant is examined as (PW-1. Exh.33). Present petitioner also appeared and deposed before the learned trial Court in inquiry proceedings under Section 452 of the CrPC.
[7.2] The complaint came to be filed at the instance of complainant (PW-1) which came to be registered as FIR being I-CR No.66 of 2012 with Mandvi Police Station, District Kachchh for the offences punishable under Sections 454, 457, 380, 411 and 114 of the IPC wherein it is alleged that the accused persons broke open the house of PW-11 and stolen ornaments worth Rs.2 lakh. During the investigation, muddamal article was recovered and panchnama was drawn and muddamal article was seized vide Muddamal Receipt No.106/2012 was issued qua Article No.1. After recording the evidence, the learned Magistrate has been pleased to record the acquittal and exonerated all the accused and passed an order to conduct inquiry qua seized muddamal Page 4 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined article - Gold Bar. During the pendency of Criminal Case No.182/2013, petitioner also preferred an application under Section 452 of the CrPC for getting the muddamal but same was not pressed and at that time, he has not produced any evidence of his ownership. Then, after conclusion of the trial, inquiry under Section 452 of the CrPC was conducted qua seized muddamal article and learned Magistrate has been pleased to pass an order of confiscation. During the inquiry, the learned Magistrate come to conclusion that in Criminal Case No.182/2013, petitioner himself turned hostile and he has not supported the fact that from his possession the muddamal article was recovered. Even after being declared hostile, during his cross-examination through APP, he has also not supported the case of prosecution and at relevant point of time he has not produced any bills to prove his ownership over the muddamal article. On the contrary, upon appreciation of evidence, learned Magistrate has recorded the findings in Criminal Case No.182/2013. The panchnama is produced at Exh.62 but witness has turned hostile and have not supported the case. Hence, the fact that muddamal article was seized from the possession of the present petitioner is also not proved on record. Another important aspect is that as per the case of prosecution, present petitioner is examined at Exh.39 wherein on oath he has deposed that accused Dilbarhussain Abdulaziz Shaikh came alongwith 20 to 25 gm of melted gold bar which was filtered by him and except that he do not know anything and for that he has received his remuneration. Even, in his cross-examination, he has denied that accused have sold the muddamal article to him and he has paid the amount of Rs.3 lakh towards consideration.
Page 5 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined [7.3] Considering the aforesaid fact, as the petitioner has already disowned the fact that he has not received the muddamal article and purchased the muddamal from the accused. On the contrary, he has stated that he has only done the labour work and after filtering the said ornaments only, he has received the remuneration and then it was returned to the accused. Considering the aforesaid crucial part and the evidence on record, no possession of ownership of muddamal article is proved in favor of the petitioner herein and the petitioner has failed to prove the ownership and therefore, the learned Magistrate has come to conclusion that at earlier point of time while making an application for interim custody of muddamal article under Section 451 of the CrPC, no any evidence of ownership was produced and even subsequently also, the evidence was recorded wherein no ownership is proved during the trial. Merely because during the inquiry, original owner has stated that he waives his claim qua muddamal article, petitioner is not entitled to receive the muddamal article.
[8.0] Learned advocate for the petitioner has relied on the decision of Hon'ble Supreme Court in the case of N. Madhavan (Supra) and paragraph 10 of the said decision reads as under:
"10. The words "may make such order as it thinks fit" in the Section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice keeping in view the class and nature of the property and the material 'before it. One of such well-recognised principles is that when after an inquiry or trial the accused Page 6 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary Rule of practice is not to be lightly made, when there is no dispute or doubt-as in the instant case-that the property in question was seized from the custody of such accused and belonged to him.
Going through the aforesaid decision as well as the facts of the case on hand, it appears that the powers are discretionary power to dispose of the property and Magistrate has appropriately exercised the jurisdiction to dispose of the property by considering the evidence produced during the trial and as discussed above, muddamal article was not recovered from the custody of the present petitioner. Hence, question to hand over the custody / possession of the muddamal article to the present petitioner does not arise.
[9.0] Herein, no any relief sought or urged for to invoke the jurisdiction under Article 226 and under Article 227 of the Constitution no any ground is found to interfere either with the order passed by the learned Chief Judicial Magistrate or learned appellate Court. Both the Courts below have not committed any error apparent on the face of the record or nothing emerges from the reasons assigned by the learned Magistrate any palpable, manifest or substantial error in interpretation of law is noticed in the order. Even, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423, wherein in Page 7 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024 NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined paragraphs 18 and 23, it has been observed as under:
"18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226."
"23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article
226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."
Considering the aforesaid fact, the order of the learned trial Courts could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioner has sought the prayer to quash and set aside the orders passed by the learned Chief Judicial Magistrate Court and appellate Court, both fall under the supervisory jurisdiction of Article 227 of the Constitution of India. Considering the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam (Supra), the judicial orders of Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. At this stage it is apposite to refer to the decision of the Hon'ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re-appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings.
Page 8 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024NEUTRAL CITATION R/SCR.A/623/2024 ORDER DATED: 02/05/2024 undefined [10.0] In wake of aforesaid discussion, this Court is of the considered view that both the Courts below have not committed any error which calls for interference by this Court. Hence, present petition stands dismissed. Rule is discharged.
(HASMUKH D. SUTHAR, J.) Ajay Page 9 of 9 Downloaded on : Mon May 06 20:50:34 IST 2024