N. SATHIYAN v. G. R. VAIDYANATHAN — 1998 DIGILAW 988 (MAD)

Judgment : A. RAMAMURTHI, J. ( 1 ) THE petitioner has preferred the revision aggrieved against the order passed by the learned Principal Sessions Judge. Kanyakumari at Nagercoil dismissing the appeal filed by the petitioner in C. S. 56/95 dated 15-2-1996 and confirming the order of Judicial Magistrate. Padmanabhapuram in C. C. No. 482/89 dated 23-7-1990. ( 2 ) THE case in brief for the disposed of the revision is as follows: There was theft in the house of the first respondent arid a complaint was given for the offences under sections 457 and 380 I. P. C. against two accused in Crime No. 725/88 of Thacklay Police station. The first accused is one Edwin Devakumar and the second accused is one. Murugaiah. During investigation on the confession statement given by the accused, the properties were recovered which included gold jewels and entrusted into the court. After investigation, charge sheet was filed and the case was taken on file in C. C. 1088/89 by the trial court. The first accused admitted the offence and he was imposed punishment. The case against the second accused was split up in C. C. 482/89 and during the pendency of the case, the second accused also died and t he case against him abated, There upon,. the first respondent filed on application before the trial court in C. C. 482/89 for return of the gold jewels on the ground that they belong to him. Items 16 to 18 were entrusted to the possession of the first respondent by an order dated 23-7-1990. Later, it appears that the petitioner filed an application before the trial court for the same relief relating to the same properties and on the basis of which, a notice was issued to the first respondent herein to re-deposit the properties into the court on 20-5-1991. After receiving the notice, the first respondent filed revision No. 34/91 before, the Sessions Court. Nagercoil and the direction given by the trial court was set aside. Now, the petitioner filed C. A. 56/95 against the order passed in C. C. 482/89 relating to the properties dated 23-7-1990 and the appeal was dismissed. Aggrieved against this, the petitioner has come forward with the present revision. ( 3 ) THE learned counsel for the petitioner contended that the orders passed by both the courts below arc not proper and correct. Aggrieved against this, the petitioner has come forward with the present revision. ( 3 ) THE learned counsel for the petitioner contended that the orders passed by both the courts below arc not proper and correct. The trial court erred in returning the properties to the first respondent on the basis that there is no rival claim. No opportunity or notice was also given to the petitioner before passing the order of return. No enquiry was conducted by the court as to who is entitled to the return of the property. In the absence of regular trial or enquiry with regard to the return of the property by examining witnesses and marking documents, the return order is erroneous. Simply because the prosecution gave no objection, it cannot be allowed automatically. The trial court discharged the petitioner for an offence under section 411 I. P. C. The orders passed by both the courts below are liable to be set aside and suitable direction has to be given to conduct an enquiry under section 452 of the Code of Criminal Procedure. ( 4 ) THE learned counsel for the first, respondent contended that the present revision filed by the petitioner is not maintainable in law. He pointed out, that as early as 23-7-1990 the order has been passed by the trial court, returning the gold jewels to the first respondent. Subsequently, in the year 1991, the petitioner filed an application before the trial court and the trial court issued a notice, calling upon the first respondent to redeposit the properties. On receipt of the notice, the first respondent preferred revision before the Sessions court and the revision was also allowed holding that the trial court has no jurisdiction to call upon the first respondent to re-deposit the property after the final order passed relating to the property. The petitioner has not chosen to the any revision aggrieved against the orders in R. C. 34/91 and, as such, the order has become final and conclusive. It is no longer now open to the petitioner to file C. A. No. 56/95 or the present revision relating to the property. ( 5 ) THE point for consideration is whether the order passed by the lower appellate court is proper and correct? It is no longer now open to the petitioner to file C. A. No. 56/95 or the present revision relating to the property. ( 5 ) THE point for consideration is whether the order passed by the lower appellate court is proper and correct? ( 6 ) POINT: It is admitted that the first respondent gave a complaint in Thacklay Police Station relating to theft of properties including gold jewels. The 2nd respondent after completing investigation, laid charge sheet against two accused concerned in the case. The first accused admitted the offence and he has imposed punishment. The property order was not passed since the case against the 2nd accused was split up in C. C. 482/89. During the pendency of the case the 2nd accused died and, as such, the case against him abated. However, the property order was not passed on 13-7-1990. Thereupon, the first respondent filed an application relating to return of property and the 2nd respondent stated no objection and on the ground that there was no rival claimant the trial court ordered return of items No. 16 to 18 to the first respondent on his executing a bond for a sum of Rs. 75,000/ -. ( 7 ) IT appears that the petitioner filed an application for directing the first respondent to deposit the properties into the court on the ground that he is also entitled to claim the properties. Thereupon, the court issued a notice calling upon the first respondent to redeposit the properties and aggrieved against this the first respondent filed the revision No. 34/91 before the Sessions Court and, ultimately the revision was allowed. Learned counsel for the first respondent contended that the petitioner has not chosen to file any revision aggrieved against the order passed in revision No. 34/91 on the file of Sessions Court. Nagerkoil It is necessary to state that the petitioner was admittedly not a party in R. C. 34/91. Only when he is a party, then alone, the order passed, if any, will be binding upon him. Simply because, the petitioner has not preferred any revision in which he is not a party, it cannot be said that it is binding on him. However it may be there is a factual error on the part of the trial court as well as in the lower appellate court relating to disposal of items No. 16 to 18. Simply because, the petitioner has not preferred any revision in which he is not a party, it cannot be said that it is binding on him. However it may be there is a factual error on the part of the trial court as well as in the lower appellate court relating to disposal of items No. 16 to 18. No enquiry as contemplated under section 452 of the Code of Criminal Procedure was conducted by examining witnesses or giving them opportunity to file documents in the case. ( 8 ) THE learned counsel for the petitioner stated that even during the pendency of the case as early as 1988, he filed an application claiming properties along with his mother and also his paternal uncle. This application was dismissed on the ground that interim custody cannot be given during the pendency of the case. This being the state of affairs the trial court ought to have issued a notice to the petitioner at the time of passing final order relating to the return of the property. On the application in C. C. 482/89 on 23-7-90 the trial court passed an order on the ground that there was no rival claim into the property as if the first respondent alone is untitled to the property. When once it is established that the petitioner had filed a petition claiming the properties along with two other persons an order passed by the court without any notice and without conducting any enquiry under section 452 of the Code of Criminal Procedure is prima facie illegal and improper. I am unable to agree with the contentions of the learned counsel for the first respondent that the order passed in revision No. 34/91 is binding on the petitioner. As adverted to since he is not a party to that proceeding, the order is not binding on him. ( 9 ) LEARNED counsel for the petitioner also cited a number of decisions to show that an enquiry ought to have been conducted by the trial court before passing an order under section 452 of the Code of Criminal Procedure. There is no dispute about these propositions and as such, it is unnecessary to reproduce the citations. ( 9 ) LEARNED counsel for the petitioner also cited a number of decisions to show that an enquiry ought to have been conducted by the trial court before passing an order under section 452 of the Code of Criminal Procedure. There is no dispute about these propositions and as such, it is unnecessary to reproduce the citations. In the interest of justice it is just and necessary that the trial court has to be directed to register criminal miscellaneous petition and after issuing notice to the petitioner and the first respondent and also after giving sufficient opportunity to let in evidence oral and documentary the trial court is directed to give a finding as to who is entitled to the properties. ( 10 ) IN the result, the revision is allowed and the order passed by the court below in C. A. 56/95 dated 15-2-1996 and the properties ordered in C. C. No. 482/89 dated 23-7-1990 are set aside and the trial court viz. Judicial Magistrate. Padmanabhapuram is directed to register a criminal miscellaneous petition and conduct an enquiry relating to the disposal of items No. 16 to 18 as to who is entitled to the properties after letting in evidence, oral and documentary. The petitioner and the first respondent are directed to appear before the trial court on 29-8-1998. Petition allowed. Matter remanded.