Allahabad High Court
Vishnu Kumar Agarawal vs State Of U.P. on 25 August, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 10 Case :- CRIMINAL REVISION No. - 111 of 2008 Revisionist :- Vishnu Kumar Agarawal Opposite Party :- State of U.P. Counsel for Revisionist :- Prabhu Ranjan Tripathi Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh,J.
1. Present criminal revision under Section 397/401 Cr.P.C. has been filed against the judgment and order dated 11.10.2006 passed by learned District Judge, Barabanki in Criminal Appeal No.18 of 2006, Vishnu Kumar Agarwal vs State of U.P. Further prayer has been made for quashing of the order dated 06.06.2006 passed by Additional Chief Judicial Magistrate, Court No.6, Barabanki by which learned Chief Judicial Magistrate had dismissed revisionist?s application under Section 452 Code of Criminal Procedure, 1973.
2. The revisionist was the complainant in FIR registered at Case Crime No.270 of 2002 under Sections 394 and 411 IPC, Police Station Ramnagar, Barabanki. After charge-sheet was filed, trial of the said offence was conducted in Criminal Case No.208 of 2005. On 03.09.2005, the accused were acquitted in the said case after conclusion of the trial. The revisionist after conclusion of the trial filed an application under Section 452 Cr.P.C. for releasing 28 Kgs silver, which was allegedly looted from him for which the Case Crime No.270 of 2002 under Sections 394, 411 IPC was registered at Police Station Ramnagar, District Barabanki. This silver was allegedly recovered from the accused who faced trial and acquitted and recovered silver was made case property. The revisionist in the said application stated that on 16.09.2002 said silver was robbed by the accused from him, and same was recovered from the accused and, therefore, after conclusion of the trial the same should be released in his favour.
3. The Learned Magistrate, however, rejected the said application vide impugned order dated 06.06.2006 on the ground that the revisionist was given opportunity to produce documents regarding his ownership and sales tax certificate to show his ownership over the seized silver. The revisionist filed photocopy of some documents but from the said documents his ownership was not proved and, therefore, the learned trial court rejected the application for releasing the said silver in his favour.
4. Aggrieved by the said order, the revisionist had filed Criminal Appeal No.18 of 2006 before the learned District Judge, Barabanki.
5. Learned Appellate Court vide impugned order dated 11.10.2006 held that the revisionist did not support the prosecution case in his evidence as P.W.-2. He was declared as hostile witness. He said that he did not recognize the persons who had robbed him. He did not recognize the accused-Meharbaan Singh and Vijay Bahadur Yadav who were present in the Court and said that they were not present when incident took place nor they committed the loot. He also said that no seizure memo was prepared in his presence of the silver which was allegedly recovered. When the silver was shown to him in the police station at that time two accused present in the court were not there. The police did not tell him that from where and from whom the silver was recovered.
6. Learned Appellate Court considering the aforesaid stand of the revisionist during trial of the case held that the revisionist was not telling the correct facts and, therefore, the revisionist could not be believed that he was owner of said silver. He also could not file any proof/document regarding his document over the silver in question. Despite given time by the learned Magistrate, he could not produce any document that he registered with the Sales Tax Department.
7. In view thereof, learned Appellate Court held that since revisionist could not file any document to prove his ownership over the silver, which was allegedly recovered by the police and therefore, the said silver was to be escheated to the State.
8. Heard learned counsel for the revisionist and learned A.G.A. for the State.
9. Learned counsel for the revisionist submits that it is not in dispute that it was the revisionist who lodged the FIR in question alleging that he was robbed of 28 kgs silver and same silver was recovered by the police which became the case property. He has further submitted that after conclusion of the trial even if the accused were acquitted, silver ought to have been released in his favour as it was his property which was looted by the accused. The Court is not required to look at the ownership while passing the order under Section 452 Cr.P.C.
10. Learned counsel for the revisionist has placed reliance on the judgment in the case of Mahesh Kumar vs State of Rajasthan 1990 Sup 2 SCC 451 to submit that once the accused from whom the silver was recovered had disclaimed stolen silver, then there should not have any reason to not return the said silver to the complainant from whom it belongs.
Para 2 to 4 of the said judgment would read as under:-
"2. In the facts and circumstances of the present case, we are satisfied that the direction made by the learned Single Judge of the Rajasthan High Court for the forfeiture of the amount of Rs 20,000 (Rupees twenty thousand) to the State is wholly unwarranted. It is now accepted principle that the confessional part of the statement made by the accused leading to discovery within the meaning of Section 27 of the Evidence Act, 1872 or Section 162 of the Code of Criminal Procedure, 1973 can be made use of for purpose of and the disposal of property under Section 452 of the Code. There is a long line of decisions laying down the principle and we would refer to only a few of them.
3. In Queen Empress v. Tribhovan Manekchand [ILR 9 Bom 131] a Division Bench of the Bombay High Court laid down that the statement made to the police by the accused persons as to the ownership of property which was the subject matter of the proceedings against them although inadmissible as evidence against them at the trial for the offence with which they were charged, were admissible as evidence with regard to the ownership of the property in an enquiry held by the Criminal Procedure Code. The same view was reiterated in Pohlu v. Emperor [AIR 1943 Lah 312 : 45 PLR 391 : 209 IC 546] where it was pointed out that though there is a bar in Section 25 of the Evidence Act, or in Section 162 CrPC for being made use of as evidence against the accused, this statement could be made use of in an enquiry under Section 517 CrPC when determining the question of return of property. These two decisions have been followed by the Rajasthan High Court in Dhanraj Baldeokishan v. State [AIR 1965 Raj 238 : (1965) 2 Cri LJ 805 : 1965 Raj LW 289] and the Mysore High Court in Veerabhadrappa v. Govinda [ILR (1973) 23 Mys 64] . In the present case, the amount in question was seized from the accused in pursuance of statements made by them under Section 27 of the Evidence Act. The High Court as well as the courts below have found the property to be the subject of theft and the acquittal of the accused is upon benefit of doubt. The accused persons disclaimed the stolen property and there is no reason why the same should not be returned to the owner i.e. the complainant to whom it belongs.
4. We, therefore, allow the appeal, set aside the impugned part of the order passed by the High Court directing the forfeiture of amount of Rs 20,000 (Rupees twenty thousand) and instead direct that the same be returned to the appellant to whom the money belongs."
11. I have considered the submissions of learned counsel for the revisionist and learned A.G.A. for the State.
12. During the course of trial the revisionist had denied that the silver was recovered from the accused, who were acquitted and any seizure memo was prepared in his presence. However, it is not the case of the prosecution that silver was of the accused who were acquitted later on. This is also not the case of the prosecution that accused or anyone else has claimed the ownership of the seized silver. The question of ownership is not required to be considered when the facts are not in dispute that on the FIR being registered by the revisionist/complainant, the silver was recovered from the accused who had not claimed ownership after acquittal.
13. In view of the aforesaid, this Court is of the view that the view taken by the two courts below is incorrect on facts and law. Therefore, the present revision is allowed. The impugned orders are hereby quashed.
(Dinesh Kumar Singh, J.) Order Date :- 25.8.2022 prateek