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2003 DIGILAW 368 (ORI)

T. NARASINGH MURTY v. G. N. GAJAPATI

2003-06-18

A.S.NAIDU

body2003
A. S. NAIDU, J. ( 1 ) BEING aggrieved by the order dated 17/04/1998 passed in Criminal Appeal No. 3 of 1994 by the Addl. Sessions Judge, Parlakhemundi, Gajapati reversing the order dated 29/01/1994 passed by the Subordinate Judge-cum-J. M. F. C. , Parlakhemundi in G. R. Case No. 24 of 1988 directing to return the gold nuggets to the petitioners from whom the same were seized, the petitioners have approached this Court. As both the revisions arise out of a common judgment and were heard analogously, the same are disposed of by this common judgment. ( 2 ) BEREFT of all unnecessary details, the short facts which are necessary for effectual adjudication of the cases are that petitioners Nos. 1 to 3 in Criminal Revision No. 297 of 1998 and the sole petitioner in Crl. Revision No. 263 of 1998 (who is also O. P. No. 2 in Crl. Revision No. 297/98) were accused in G. R. Case No. 24 of 1988 of the Court of the Subordinate Judge-cum-J. M. F. C. , Parlakhemundi. The said petitioners are goldsmith by profession and it is alleged that they had committed an offence under S. 411, I. P. C. On the basis of an F. I. R. dated 2/02/1988, lodged by the Maharaja of Parlakhemundi opposite party No. 1 alleging that some unknown persons entered into the Gantaghar and committed burglary of ornaments from the temple situated inside the palace between April, 1987 and January, 1988, G. R. Case No. 24 of 1988 was initiated. According to the prosecution case, the gold ornaments which were stolen, were sold to the petitioners for which they faced trial for the charge under S. 411, I. P. C. After trial, by the judgment dated 29/01/1994, all the petitioners were acquitted as the prosecution totally failed to substantiate the charge. The learned J. M. F. C. also directed to return the gold nuggets seized from the premises of the petitioners. The informant preferred an appeal against the order directing return of the gold nuggets seized from the petitioners to them whereas the order acquitting the petitioners from the charge under S. 411, I. P. C. was not challenged and became final. The lower appellate Court set aside the portion of the order directing to return the gold nuggets to the petitioners and directed that the same be returned to the informant-appellant. The lower appellate Court set aside the portion of the order directing to return the gold nuggets to the petitioners and directed that the same be returned to the informant-appellant. The said appellate order, as stated above, is impugned in these revisions. ( 3 ) MR. P. V. Ramdas, learned counsel for the petitioners forcefully submitted that there is absolutely no iota of evidence connecting the gold nuggets with ornaments alleged to have been stolen from the Palace of Maharaja. It is also submitted that being goldsmith the petitioners are authorised/licence holders to keep gold nuggets out of which they prepare ornaments as per the order and cater their customers. In course of trial no evidence worth the name was adduced connecting gold nuggets with the crime nor the same was identified by the informant. Mr. Ramdas further submitted that no evidence was also adduced in course of trial to show that the ornaments stolen were converted to gold nuggets. On the basis of such submission, Mr. Ramdas urged that as the gold nuggets were seized from the possession of the petitioners who are goldsmiths and are authorised to possess gold nuggets as part of their business, in consonance with S. 452, Cr. P. C. , on the acquittal of the petitioners, the Court below had rightly directed to return the gold nuggets to the petitioners who are otherwise entitled to claim possession thereof. It is also forcefully submitted that the appellate Court while exercising power under S. 454, Cr. P. C. has committed an error of law in directing return of gold nuggets to the informant in spite of the fact that the informant neither claimed the same during the trial nor identified them to be the stolen properties in T. I. parade conducted in course of investigation. Mr. Ramdas reiterated that the informant having not filed any application under S. 452, Cr. P. C. for return of gold nuggets which were admitted seized from the petitioners the appellate Court acted illegally and in excess of its jurisdiction in reversing the decision of the learned Magistrate and directing to return the gold nuggets to the informant. Mr. Ramdas reiterated that the informant having not filed any application under S. 452, Cr. P. C. for return of gold nuggets which were admitted seized from the petitioners the appellate Court acted illegally and in excess of its jurisdiction in reversing the decision of the learned Magistrate and directing to return the gold nuggets to the informant. AT the other hand, learned counsel for the State as well as the learned counsel for the informant strenuously submitted that as the main accused persons who had stolen the properties and committed burglary have confessed in course of investigation that they had sold the ornaments to the petitioners, it is a fit case where the gold nuggets should be directed to be released in favour of the original owner i. e. the informant and the order passed by the appellate Court is just and proper and needs no interference. ( 4 ) SECTION 452, Cr. P. C. empowers the Magistrate to pass orders in respect of custody of the property after conclusion of inquiry or trial and the Court may make such order as it thinks fit directing disposal by delivery of property to any person claiming to be entitled to the possession thereof. The words "may make such order as it thinks fit" in the section vest the Court with the discretion to dispose of the property in any of the modes stipulated in the section. The normal rule for such release of the properties is that it must be restored to the person from whose possession it came. In the case at hand, admittedly the gold nuggets have been seized from the custody of the petitioners. They are goldsmiths by profession and are otherwise authorised to possess such gold nuggets. The prosecution totally failed to prove that the ornaments stolen have been converted to Gold nuggets. After taking into consideration the entire evidence, both oral and documentary, the petitioners were acquitted from the charge of commission of offence under S. 411, I. P. C. The said order of acquittal has become final and binding. Admittedly, the informant failed to identify the gold nuggets in T. I. parade conducted. Thus, there is absolutely no evidence connecting the gold nuggets seized from the possession of the petitioners with the crime committed. Admittedly, the informant failed to identify the gold nuggets in T. I. parade conducted. Thus, there is absolutely no evidence connecting the gold nuggets seized from the possession of the petitioners with the crime committed. That apart, as would be evident from the record except the petitioners no other person has filed any application under S. 452, Cr. P. C. for release of gold nuggets in his favour. ( 5 ) IN view of the aforesaid facts and circumstance and in view of the clear provision of law under S. 452, Cr. P. C. , according to me, the trial Court on the basis of the evidence available, has rightly directed return of the gold nuggets to the petitioners from whose custody the same were seized. The order reversing the said direction passed by the appellate Court is based on surmises and conjectures and not on the basis of cogent evidence adduced in Court. After the informant failed to identify the gold nuggets which were seized from the possession of the petitioners and when the prosecution has totally failed to connect the gold nuggets with the ornaments stolen and in view of failure of the prosecution to bring any evidence to the effect that the gold ornaments stolen were converted to gold nuggets, I feel the appellate Court committed error both in law and facts in reversing the direction passed by the trial Court. In any view of the matter in absence of any application filed by the informant under S. 452, Cr. P. C. for release of the ornaments in course of trial, the order directing release of the same in favour of the informant is an act in excess of jurisdiction and is liable to be quashed. I, therefore, set aside the order passed by the appellate Court in Criminal Appeal No. 3 of 1994 and confirm the direction issued by the trial Court in G. R. Case No. 24 of 1988. Accordingly both the revisions are allowed. Petitions allowed.