Kedar Nath Singh v. State — 1976 DIGILAW 244 (PAT)

JUDGMENT B. P. Jha, J. Petitioner Kedar Nath Singh moved this application in revision against the order dated 11th March, 1976, passed by Shri A. A. K. Sinha, 3rd Assistant Sessions Judge, Darbbanga. 2. Learned Counsel for the petitioner attacks the validity of the impugned order dated 11th March, 1976, on the ground that the learned Assistant Sessions Judge acted without jurisdiction in passing it. 3. It is necessary to state the relevant facts. In the present case the High Court set aside the conviction of the petitioner in respect of an offence under section 412, Indian Penal Code, by judgment dated 5th February, 1975, passed in Criminal Appeal No. 203 of 1969. While passing the judgment in appeal, this court held that there was difference in the weight of goods seized from the house of the petitioner on 22nd August, 1963, and the articles of dacoity mentioned in the fardbeyan (Exhibits 4 and 4/2). This Court quoted certain instances in paragraph five of the judgment which runs as follows:- "Learned counsel for the appellant contends that the articles seized on 22nd August, 1963 are different from the articles mentioned in the fard beyan (Exts. 4 and 4/2) filed by P. W. 10, Learned counsel for the appellant, to illustrate the point, refers to gold Kantha in the fard beyan wherein it is stated that the weight of the gold Kantha (Ext. XVI) is 21 Bhars. Item 6 of the search list (Ext. C) shows that the weight of the gold Kantha recovered from the possession of the appellant was 9 Bhars. It is on this basis that the learned counsel for the appellant contends that the gold Kantha (Ext. XVI) was quite different from the gold Kantha belonging to P.W. 10. In my opinion, there is force in the contention of learned counsel for the appellant. The weight of the silver spoon which was recovered from the possession of the appellant was 2½ Bhars (vide item no. 13 in the search list Ext. C). The fard beyan suggested that the weight of the silver spoon was 18 Bhars. It is, therefore, clear that the articles recovered from the possession of the appellant was of different weight. It is for this reason that the counsel for the appellant contends that the alleged articles seized from the possession of Kedar Nath Singh was different from the subject matter of theft. It is, therefore, clear that the articles recovered from the possession of the appellant was of different weight. It is for this reason that the counsel for the appellant contends that the alleged articles seized from the possession of Kedar Nath Singh was different from the subject matter of theft. In this connection he refers to the finding of the trial court at the end of paragraph 15 at page 15 of the brief. The finding of the trial court in this connection is as follows:- "The recovery list is a big list containing 26 articles. The defence had filed that document with the purpose to show that the articles recovered and the list of articles differ in weight so far the ornaments are concerned. Admittedly they do......" It is, therefore, clear on the finding of the trial court that there was difference in weight between the articles seized from the possession of Kedar Nath Singh and the subject matter of theft. It is for this reason that the learned counsel for the appellant contends that the articles seized from the possession of the appellant were not the subject matter of the theft.” 4. In the above paragraph this Court held relying upon the finding of the trial court (quoted above) that there was difference of weight between the articles seized from the possession of Kedar Nath Singh and the subject matter of theft. It is a settled law that the articles recovered from a certain person will be deemed to belong to him unless it is proved that they belong to the members of the prosecution party. In that view of the matter, this Court was of the opinion that the goods seized from the possession of Kedar Nath Singh did not belong to the person in whose house the dacoity was committed. The learned Assistant Sessions Judge quoted paragraph five of the judgment of this Court while passing the order on 11th March, 1976. In view of the finding of this Court in Criminal Appeal No. 203 of 1969, the only inference that can be drawn is that the goods seized by the police on 22nd August, 1963, (vide Exhibit-C) definitely belonged to Kedar Nath Singh. No other inference can reasonably be drawn by any Court in this connection. In view of the finding of this Court in Criminal Appeal No. 203 of 1969, the only inference that can be drawn is that the goods seized by the police on 22nd August, 1963, (vide Exhibit-C) definitely belonged to Kedar Nath Singh. No other inference can reasonably be drawn by any Court in this connection. In spite of this finding by this Court in paragraph five of the judgment quoted above, the learned Assistant Sessions Judge erred in not delivering the possession of the articles seized on 22nd August 1963 (vide Exhibit C), to the petitioner. 5. There is another aspect of the matter and that is this:- On an application filed by the petitioner under section 452, Code of Criminal Procedure, for release of the articles seized on 22nd August, 1963, the learned Assistant Sessions Judge, vide his order dated 20th February, 1977, directed the officer-in-charge of the Court Malkhana to deliver the articles seized (vide Exhibit-G) to the petitioner, on proper identification. The petition filed by the petitioner Kedar Nath Singh dated 15th March, 1975, for release of the goods was not even opposed by the learned Counsel for the prosecution as is clear from the order of the Assistant Sessions Judge dated 20th February, 1976. 6. It is relevant to quote the whole order of the learned Assistant Sessions Judge, dated 20th February, 1976. "Above petition of the accused Kedarnath Singh dated 15.3.75 moved today. Heard the learned Advocate for the petitioner. On 15.3.75 a petition has been filed on behalf of Kedarnath Singh under Sec. 452 Cr. P. C. praying for a direction regarding delivery of articles i.e. ornaments and clothes seized on 28.8.63 in Khajauli P.S. Case No. 26 dated 25.6.63 under Sec. 412 and 395 I.P.C. to the petitioner on grounds that the petitioner was convicted u/sec. 412 I.P.C. in the said case by the trial court in Sessions Trial No. 78/66. The order of conviction taken before the Hon'ble High Court and the same was set aside on allowing the relevant Criminal Appeal No. 203/69. The articles were seized from the house of the petitioner's father. The matter was placed before this Court on the last day and then the learned counsel for the prosecution agreed with the facts stated above. He did not oppose the present prayer. The articles were seized from the house of the petitioner's father. The matter was placed before this Court on the last day and then the learned counsel for the prosecution agreed with the facts stated above. He did not oppose the present prayer. We have referred to the pronouncement of Shri Justice B.P. Jha in the aforesaid criminal appeal whereby the petitioner appellant was given benefit of doubt for the simple reason that the prosecution had failed to prove the possession of the petitioner-appellant in respect of articles seized under the Seizure list Ext. C. The appeal of the petitioner-appellant was allowed and the conviction and sentence were set aside. That being so, it appears prima facie that articles seized were recovered from the house of the petitioner appellant i.e. from the possession of the petitioner appellant. That being so, the prayer of the petitioner is allowed. The officer-in-charge court Malkhana be directed to deliver the articles seized under seizure list Ext. C. dated 22.8.63 on proper identification to the petitioner. The petition is accordingly disposed of. 7. On a perusal of the above order dated 20th February, 1976, passed by Shri A.K. Sinha 3rd Assistant Sessions Judge In-charge, it is clear that on the basis of the judgment of the High Court in Criminal Appeal No. 203 of 1969, he directed the officer-in-charge of the Court Malkhana to deliver the articles seized on 22.8.63 (Exhibit C) to the petitioner. 8. On these findings, learned Counsel for the petitioner contends that the learned Assistant Sessions Judge had no jurisdiction to set aside, recall, or review his own earlier order dated 22nd February, 1976. It appears that by virtue of the order passed by him on 11th March, 1976, the learned Assistant Sessions Judge had recalled or set aside his earlier order dated 20th February, 1976. In my opinion, there is no provision under the Code of Criminal Procedure which suggests that an order passed by any subordinate Court, while exercising the powers under the Code of Criminal Procedure, can either recall, set aside or review his own order. The order passed by any officer under the Code of Criminal Procedure can only be set aside, recalled or reviewed by the superior Court in Revision, otherwise not. The order passed by any officer under the Code of Criminal Procedure can only be set aside, recalled or reviewed by the superior Court in Revision, otherwise not. In these circumstances I hold that the learned Assistant Sessions Judge acted without jurisdiction in setting aside his order dated 20th February, 1976, by his order dated 11th March, 1976. Hence, I set aside the order of the learned Assistant Sessions Judge, dated 11th March, 1976, and up hold his order dated 20th February, 1976. I direct that the officer-in-charge of the Court Malkhana concerned or any other officer connected with the said Malkhana shall deliver the articles seized to the petitioner, Kedar Nath Singh, as per the seizure list (Exhibit C) dated 22nd August, 1963, in Sessions Trial No. 78 of 1966. If the properties, as directed by the Assistant Sessions Judge (vide his order dated 20th February, 1976) as well as vide the order of this Court, are not returned to the petitioner, the petitioner shall be entitled to move for contempt of court or for any other action, in law before this Court or in any other Court. I also hold that the State of Bihar or any of its officers concerned with the Malkhana at Darbhanga will be responsible for delivering the seized articles (vide Exhibit C in Sessions Trial No. 78 of 1966) to the petitioner. The Assistant Sessions Judge is directed to see that his order dated 20th February. 1976, as well as the order of this Court are implemented without any further delay. 9. In the result, this application is allowed and the order dated 11th August, 1976, passed by the Assistant Sessions Judge is set aside and his earlier order dated 20th February, 1976, is maintained (as directed above). Let, a copy of this order be sent to the Sessions Judge and the District Magistrate, Darbhanga for information. Application allowed.