Research › Browse › Judgment

Gujarat High Court · body

1992 DIGILAW 377 (GUJ)

GANCHI IBRAHIM BILLY v. GANCHI ABDULLA MUSSA

1992-11-28

J.N.BHATT

body1992
J. N. BHATT, J. ( 1 ) THE appellant who is original complainant has challenged the legality and validity of the older with regard to the disposal of muddamal article passed by the learned Additional Sessions Judge at Junagadh on 6-5-1983 in Criminal Appeal No. 3 of 1983 by invoking the provisions of Section 454 of the Code of Criminal Procedure (Code for short hereinafter ). ( 2 ) A few material facts leading to the rise of the present appeal may be briefly stated. The present appellant is an original complainant filed complaint under Section 379 lead with Section 114 of the Indian Penal Code against the respondents No. 1 2 3 who are the original accused persons. The parties are herein referred to as complainant. and accused persons for the sake of convenience and brevity. The complainant filed criminal complaint against the accused on 3 in the Court of J. M. F. C. at Mangrol. He alleged that the accused persons had committed theft in respect of fertilizer from his field on 30 A complaint was sent to the police under Section 156 (3) of the Code for investigation. On completion of the investigation charge-sheet followed against the accused persons for the offences punishable under Section 379 read with Section 114 of the IPC and on trial they were convicted and sentenced to pay fine of Rs. 250. 00 each. The original accused No. 1 was acquitted. ( 3 ) THE Trial Court was also pleased to order that the muddamal fertilizer should be returned to the original complainant who is appellant herein. ( 4 ) THE original accused persons No. 2 3 and 4 being aggrieved by the order of the Learned Trial Magistrate challenged it by filing appeal No. 3 of 1983 in the Sessions Court at Junagadh. On application of facts and circumstances the learned Addl. Sessions Judge at Junagadh. on 6 was pleased to allow the appeal while quashing the conviction and sentence order passed against the original accused persons No. 2 3 and 4. ( 5 ) SUBSEQUENTLY an application was submitted to the learned Additional Sessions Judge Junagadh on 13 by the original accused persons No. 2 3 and 4 requesting the Court to pass the order in respect of muddamal fertilizer in their favour. ( 5 ) SUBSEQUENTLY an application was submitted to the learned Additional Sessions Judge Junagadh on 13 by the original accused persons No. 2 3 and 4 requesting the Court to pass the order in respect of muddamal fertilizer in their favour. Thus it was contended on behalf of the original accused persons No. 2 3 and 4 that the muddamal fertilizer should be ordered to return them as they came to be acquitted from the charges against them. The learned Additional Sessions Judge passed an order on the same day i. e. on 13-6-1983 stating that on account of bona fide mistake the order regarding muddamal could not be passed along with acquittal order. It was further observed that accused persons No. 2 3 and 4 were acquitted and the muddamal articles were recovered from their possession and therefore the same should now be ordered to be handed over to the accused persons. The legality and validity of this order is challenged in this appeal. ( 6 ) HAVING heard the learned Counsels for the parties and having examined the facts and circumstances of the present case the impugned order of the learned Additional Sessions Judge Junagadh is not only invalid but is illegal. It is true that under Section 452 of the Code the Court is competent to pass order for the disposal of the muddamal articles at the conclusion of the Trial. The learned Counsel for the respondent Mr. Thakkar contended that the impugned order is passed by the learned Additional Sessions Judge without hearing the complainant. This contention appears to be fully justified. There is nothing on record to suggest that the complainant or his Advocate was heard before passing the impugned order. It is fundamental principle of law that no adverse order could be passed against any party which is likely to be adversely affected. Any order which is passed in violation of principles of natural JUst ice cannot be sustained. ( 7 ) NO doubt Section 452 of the Code does not in term prescribe that a notice should be issued to the complainant although the law is silent on that point and it does not expressly require issuance of notice. There is in the eye of law necessary implication that the parties adversely likely to be effected should invariably be heard before the Court makes any older of return of the seized property. There is in the eye of law necessary implication that the parties adversely likely to be effected should invariably be heard before the Court makes any older of return of the seized property. This proposition of law is settled. It is also supported by the latest decision of this court rendered in Soni Bhagwandas Narberam v. Binduben Gulabrai and Anr. [xxxii (2) GLR 796) ( 1991 (2) GLH 255 ]. (Coram J. N. Bhatt J. ). In Soni Bhagwandass case (supra) this Court has held that Section 452 of the Code empowers the Court for passing appropriate order for disposal of the muddamal articles at the conclusion of the Trial. There is no dispute about the fact that the present appellant who is an original complainant is one of the claimants in so far as the muddamal articles are concerned and who is not heard. No notice is issued against him prior to the passing of the impugned order. The learned Additional Sessions Judge Junagadh has committed serious error of law in not calling upon the complainant or in not affording an opportunity of being heard to the complainant who is affected party due to impugned order. In State Bank of India v. Rajinder Kumar Singh reported in AIR 1969 SC 401 the Apex Court of the land has held that though the law is silent and does not expressly require issue of such notice the is in the eye of law necessary implication that parties likely to be adversely affected should be afforded with an opportunity of being heard. ( 8 ) IN the facts and circumstances of the case the impugned order of the learned Additional Sessions Judge is required to be quashed as his finding is not only erroneous but is illegal. With the result this petition is required to be allowed and consequently the matter is required to be remanded to the Trial Court for passing appropriate order after affording an opportunity of being heard to the parties concerned including the complainant. ( 9 ) FOR the foregoing ground the appeal is allowed. The impugned order of learned Addl. Sessions Judge with regard to the disposal of muddamal articles under Section 452 of the Act is hereby quashed and the matter is sent back to the learned J. M. F. C. at Mangrol for disposal as expeditiously as possible. The appeal is accordingly allowed. The impugned order of learned Addl. Sessions Judge with regard to the disposal of muddamal articles under Section 452 of the Act is hereby quashed and the matter is sent back to the learned J. M. F. C. at Mangrol for disposal as expeditiously as possible. The appeal is accordingly allowed. (NVA) Order accordingly. .