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1999 DIGILAW 97 (RAJ)

Babulal v. State of Rajasthan

1999-01-22

G.L.GUPTA

body1999
JUDGMENT 1. - This revision petition is directed against the order dated 26.8.98 passed by the learned Addl. Chief Judicial Magistrate, Bhinmal whereby he rejected the application of the petitioner for the delivery of property to him. 2. Mr. Kumbhat points out that gold and silver ingots were seized by the police from the possession of petitioner Babulal, and the trial court acquitted him vide judgment dated 6.11.97 holding that it was not proved that co-accused had given ornaments to the petitioner or that the ingots were made of those ornaments but the Court refused to deliver the property to the petitioner on the ground the property might be required in the trial of the absconding accused. He contends that there is no relationship of the property seized from the petitioner with the absconding accused persons and the petitioners should not be deprived of his property. He submitted that .................. furnish personal and security bond undertaking to produce the property as and when called upon by the court. 3. The learned Public Prosecutor pointing out that the court order dated 6.11.97 was not challenged by the petitioner, contends that fresh order dated 26.8.98 does not furnish cause of action to the petitioner and the revision should be dismissed on this ground alone. She canvasses that some accused persons are absconding and therefore the learned Magistrate was justified in refusing to return the property to the petitioner. 4. At this stage, Mr. Kumbhat submits that the revision petition may be treated as miscellaneous petition as, if the impugned orders are allowed to stand, it will amount to the abuse of the process of the court. He canvasses that to secure the ends of justice the petition should be allowed. 5. I have carefully considered the above arguments. On the report of Jawat Raj a case under Section 457 I.P.C. was registered on 8.3.89. Thereafter the first informant submitted a list of the ornaments stolen from his house. During investigation the Police arrested Deva, Fatiya, Nathiya and the petitioner. Nathiya died during investigation. Challan was submitted against three remaining accused. The police could not arrest some accused and hence challan under section 299 was filed against them. 6. A charge under section 411 IPC was framed against petitioner Babulal. The other two accused were charged under Section 457 and 380 IPC. The prosecution examined six witnesses. Nathiya died during investigation. Challan was submitted against three remaining accused. The police could not arrest some accused and hence challan under section 299 was filed against them. 6. A charge under section 411 IPC was framed against petitioner Babulal. The other two accused were charged under Section 457 and 380 IPC. The prosecution examined six witnesses. The case for the accused-petitioner Babulal was that the police had forced him to deliver some gold and silver therefore he had to melt the ornaments of his wife and hand over the ingots to me ponce, ne examined two witnesses in his defence. The learned Magistrate vide judgment dated 6.11.97 held that it was not proved by the prosecution evidence that accused Babulal had received stolen property from Nathiya. He directed the acquittal of the petitioner. The other two accused were also acquitted. The judgment of acquittal has attained its finality as the State has not challenged the judgment. In the operative part of the judgment, the learned Magistrate observed that the property of the case was not being disposed of as some of the accused were absconding. Thereafter, the petitioner moved an application before the Magistrate to hand over the gold and silver ingots to him. His application was rejected vide order dated 26.8.1998. 7. It is not disputed that the ornaments reported to have been stolen were not recovered from the possession of the petitioner. Gold and silver ingots were seized from his possession. 8. The prosecution case was that on the information of Nathiya, the police had gone to the shop of the accused and recovered the gold and silver ingots from him. As already stated, Nathiya had died during investigation of the case. The information said to have been given by Nathiya is Ex.R 18. This information was recorded by one Swaroop Singh. Swaroop Singh however could not be examined, as he had expired. The prosecution has made an attempt to prove the document Ex.R 18 by the testimony of PW 3 Ratan Lal. Ratan Lal admits in clear terms that information recorded in Ex.P. 18 was not given to him and the same was written by him at the instance of Swaroop Singh, SHO. by the testimony of Ratan Lal, it is not proved that the information Ex.R 18 was given by Nathiya. Ratan Lal admits in clear terms that information recorded in Ex.P. 18 was not given to him and the same was written by him at the instance of Swaroop Singh, SHO. by the testimony of Ratan Lal, it is not proved that the information Ex.R 18 was given by Nathiya. Once it is held that the information Ex.P. 18 is not proved, it cannot be found that the recovery of the gold and silver ingots was made from the petitioner in consequence of the information given by Nathiya. The trial court has held that there is no material on record to hold that the gold and silver ingots recovered in the case were made of stolen property. The case for the accused petitioner is that the gold and silver ingots were prepared by him from the ornaments of his wife, because of the pressure of the police that if gold and silver was not given to them, he would be implicated in a case. The petitioner, in my opinion, being the owner of the gold & silver ingots is entitled to receive the property. 9. There is no justification for not delivering the ingots to the petitioner on the ground that some of the accused are absconding. It is not the case for the prosecution that the property was recovered at the instance of those accused persons and, therefore, the delivery of the property to the petitioner is not likely to affect adversely the case for the prosecution when the trial of the absconding accused is held. 10. The property was seized from the petitioner in 1989. About ten years have already elapsed. It would not be proper to deprive the petitioner of his property for unlimited period. The same may be given to him on certain conditions. 11. Consequently, the revision/misc. petition succeeds. It is directed that the property recovered from the petitioner shall be handed over to him on condition that he furnishes a personal bond in the sum of Rs. 2 lacs with one surety in the like amount to the satisfaction of the trial court undertaking to produce the same as and when called upon by the Court.Revision Allowed. *******