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2008 DIGILAW 1074 (BOM)

Ashok s/o Bhivsan Patil v. State of Maharashtra

2008-07-29

V.R.KINGAONKAR

body2008
ORAL JUDGEMENT : 1. This petition is directed against order rendered by learned Additional Sessions Judge, Nandurbar, in Criminal Appeal No. 5/1997 confirming the order of learned Judicial Magistrate (F.C.), Shahada, in a criminal case (R.C.C. No. 104/1992) pertaining to disposal of property articles. 2. The petitioner is original complainant. He claims to be adopted son of one Bhilabai Patil. His adopted mother owned a gold ornament called ‘chitang’ (neckless) weighing 5 tolas. The gold ornament was kept in an iron box. The gold chitang was found missing when the iron box was opened on one day. Therefore, FIR was lodged about the theft. Original accused No. 1 Vallabh Patil allegedly broke open the iron box and committed the theft. It was alleged that the three (3) accused distributed the booty. The police carried out certain investigation and prosecuted the three (3) accused i.e. Vallabh and others. They were tried before the learned Judicial Magistrate. It appears that an application seeking permission to compound offence was submitted to the Court of Judicial Magistrate (F.C.). However, since the offence was not compoundable, the permission was refused. 3. The prosecution examined some of the witnesses in support of its case. The petitioner supported the FIR lodged by him vide Exh-26. The seizure panchanamas, however, were not corroborated by the witnesses. Those panchas were declared hostile. The recovery of incriminating articles was not, therefore, duly proved. Consequently, the learned Magistrate acquitted the three (3) accused persons. While passing the order of acquittal, the learned Magistrate held that the seized property articles, namely, a gold ingot, ear rings and the shimpale (ear tops) shall be sent to Mint at Mumbai for the purpose of disposal. This order was challenged by way of appeal by the petitioner. The appeal, however, came to be dismissed. 4. Heard learned advocate for the petitioner and learned A.P.P. I have perused the record and proceedings. 5. At the threshold, it may be mentioned that the purshis (Exh-27) was filed by the petitioner and the original three (3) accused for compounding of the offence. All the three (3) accused persons gave no objection to return the property articles to the petitioner (complainant). They did not claim ownership of the said articles. Nobody else came forward to stake any claim in respect of these articles. All the three (3) accused persons gave no objection to return the property articles to the petitioner (complainant). They did not claim ownership of the said articles. Nobody else came forward to stake any claim in respect of these articles. It was only the petitioner who claimed the same alleging that the articles were converted after the stolen chitang was melted and transformed into the ornaments which came to be seized during course of the investigation. The Courts below did not consider Sub-Section (5) of Section 452 of the Criminal Procedure Code. It is not that only the articles which are in the original shape can be restored to the custody of the complainant. The articles which are converted into different form also may be returned to the rightful claimant. This is not a case in which nobody claimed the articles nor a positive finding is rendered that the claim of the petitioner was illfounded. 6. It is well settled that the statements recorded under section 162 of the Criminal Procedure Code or the statements which have been recorded in pursuance to Section 27 of the Evidence Act, can be looked into for the collateral purpose to locate identity of the claimant of property. The statements under section 162 of the Criminal Procedure Code may not be admissible in evidence against an accused during course of a criminal trial. Still, however, such statements can be used in civil proceedings, departmental inquiries and the inquiries of the nature which cannot be termed as criminal trial for indictment of an accused. Obviously, the police statements and the seizure panchanamas could be looked into by the learned Magistrate to verify whether the claim put forth by the petitioner was acceptable. 7. The seizure panchanamas would show that the gold chitang was got converted into ingot and the ear tops during the course of disposal of the stolen property. It appears that the ornaments in question were seized by the police in pursuance to the statements recorded under section 27 of the Evidence Act. The petitioner has filed relevant copies of memorandums on record. It appears that original accused No. 3 Ravan gave a statement to the effect that the chitang was sold to a shopkeeper at Dondaicha. It was converted into one tongal (ear rings) and shimpale (ear tops). The further memorandum panchanama dated 04-07-1992 is at instance of Bharat Patil. The petitioner has filed relevant copies of memorandums on record. It appears that original accused No. 3 Ravan gave a statement to the effect that the chitang was sold to a shopkeeper at Dondaicha. It was converted into one tongal (ear rings) and shimpale (ear tops). The further memorandum panchanama dated 04-07-1992 is at instance of Bharat Patil. At his instance, the gold ornaments i.e. tongal and shimpale were recovered. Said shopkeeper by name Sitaram Saraf informed the police that 39 grams gold was not purchased by him due to paucity of funds. It was sold to one Anil Hardasmal Sindhi. Therefore, the ingot was recovered from said Anil Sindhi. Thus, there is evidence collected by the police as regards the alleged conversion of the gold chitang into the ornaments. Under these circumstances, the claim put forth by the petitioner ought not to have been turned down. The learned Magistrate was expected to make appropriate inquiry in regard to disposal of the property. The inquiry contemplated for such purpose is of summary nature. The learned Magistrate and the learned Sessions Judge could have perused investigation papers for the purpose. There is no justification in support of disposal of the property articles as ordered by learned Magistrate and the learned Sessions Judge. Having regard to the police investigation papers and the memorandum panchanamas, and particularly when none of the accused persons claimed the articles in question, the ornaments could be returned to the petitioner. 8. In the result, the application is allowed. The impugned judgements are quashed. The learned Magistrate is directed to return the ornaments in question and the gold ingot seized in the context of the alleged crime, to the petitioner without delay. The record and proceedings shall be remitted to the Trial Court immediately.