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Himachal Pradesh High Court · body

2002 DIGILAW 53 (HP)

KANWAR SINGH v. STATE OF HIMACHAL PRADESH

2002-03-13

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. (Oral) :- This revision petition under Section 397 of the Code of Criminal Procedure (hereafter referred to as the Code) has been directed against the order dated 15.10.2001 passed by the learned Additional Sessions Judge, Shimla, whereby he had dismissed the appeal preferred by the petitioners under Section 454 of the Code against the order of the learned Judicial Magistrate, confiscating the case property, subject matter of theft in Criminal Case No. 17/2 of 1999/97 against the petitioners, in favour of the State. 2. Brief facts leading to the presentation of this petition are that the petitioners were tried by the learned Judicial Magistrate 1st Class, Jubbal, on a charge under Sections 379 and 188 IPC. The allegations against them were that they had removed the apple crop from an orchard for which Tehsildar, Jubbal was appointed a Receiver. On trial, the learned magistrate found the petitioners not guilty and accordingly acquitted them of the charge. However, the sale proceeds of th.6 apple seized during investigation as the stolen property amounting to Rs.2500/- were confiscated in favour of the State. 3. Feeling aggrieved by the said order of confiscation, the petitioners preferred an appeal under Section 454 of the Code which was heard by the learned Additional Sessions Judge, Shimla and was dismissed by the impugned judgment on the ground that the appeal was incompetent as it did not lay to the Court of Sessions and the remedy of the petitioners was to file a revision petition in the High Court. Hence the present revision petition by the petitioners. 4. I have heard the learned counsel for the petitioners and the learned Assistant Advocate General for the respondent and have also gone through the relevant material placed on the record. 5. There is no dispute that the accused were acquitted of the charge against them. The amount of Rs.2500/- confiscated by the trial Court in favour of the State was the amount of sale proceeds of the apples seized by the investigating agency during the course of investigation. The order regarding confiscation was passed by the learned trial Magistrate at the conclusion of the trial against the petitioners. Against this background, the only question which arises for consideration in this petition is "whether an appeal preferred by the petitioners against the confiscation order under Section 454 of the Code is maintainable or not. 6. The order regarding confiscation was passed by the learned trial Magistrate at the conclusion of the trial against the petitioners. Against this background, the only question which arises for consideration in this petition is "whether an appeal preferred by the petitioners against the confiscation order under Section 454 of the Code is maintainable or not. 6. Section 454 of the code reads as follows: "454. Appeal against orders under Section 452 of Section 453, - (1) Any person aggrieved by an order made by a court under Section 452 or Section 453, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court. (2) On such appeal, the Appellate court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annual the order and make any further orders that may be just. (3) The powers referred to in sub section (2) may also be exercised by a court of appeal, confirmation or revision while dealing with the case in which the order referred to in sub section (1) was made." 7. It is evidence from a bare reading of the aforesaid provisions that Section 454 supra enables a person aggrieved by an order made by a Court under Section 452 or 453 to file an appeal against it. 8. Sub section (1) of Section 452, which is relevant for the determination of aforesaid question arising in this case reads as follows: "452. Order for disposal of property at conclusion of trial - (1) When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence." 9. As is evident from the aforesaid provisions, a trial Court has to pass an order regarding the disposal of the case property after the conclusion of the trial. In the case in hand, the order for confiscation of the amount of Rs.2500/-has been passed by the trial Court while disposing of the main case vide its judgment dated 13.9.2000. As is evident from the aforesaid provisions, a trial Court has to pass an order regarding the disposal of the case property after the conclusion of the trial. In the case in hand, the order for confiscation of the amount of Rs.2500/-has been passed by the trial Court while disposing of the main case vide its judgment dated 13.9.2000. Thus, for all intents and purposes, the order of confiscation has been passed by the trial Court under the provisions of Section 452 superior. 10. It is not the case of the parties that any appeal or revision has been preferred or is pending against the order of acquittal as passed by the trial Court. In these circumstances, the remedy of the petitioners for redressal of their grievance against the confiscation order was only under the provisions of Section 454 supra and thus, the appeal preferred by them is maintainable and competent. The findings returned by the learned Additional Sessions Judge to the contrary are, therefore, unsustainable. 11. As a result, this petition is allowed and the case is remanded to the learned Additional Sessions Judge with the direction to re-register the Criminal Appeal No.20-S/10 of 2000 against its old number and date and dispose of the appeal on its merits in accordance with law. 12. The parties through their learned counsel are directed to appear in the court of the learned Additional Sessions Judge, Shimla on 26.3.2002.