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Madhya Pradesh High Court · body

2008 DIGILAW 1242 (MP)

Chain Singh v. State of M. P.

2008-10-22

N.K.MODY

body2008
ORDER 1. Being aggrieved by the order dated 22.12.2007 passed by Special Judge, SC/ST, Mandleshwar (West Nimar) in Cr.A. No. 216/04 whereby the appeal filed by the petitioner against judgment dated 6.12.2004 passed by JMFC, Kasrawat in Criminal Case No. 37/96, was dismissed, the present petition has been filed. 2. Short facts of the case are that the respondents No.2 & 3 were prosecuted under the provisions of M.P. Krishi Pashu Parirakshan Adhiniyam (Agricultural Cattle Preservation Act) and Prevention of Cruelty to Animals Act by respondent No.1, alleging that respondents· No.2 & 3 were transporting 24 cows in a truck in cruel manner. In that criminal case, cows were seized by the police. Learned JMFC released them on Supurdgi to respondent No.4 who was the president of Goushala Mail Ashram Bamnala upon executing Supurdginama, for which the petitioner stood as surety. After framing of the charges and recording of evidence vide judgment dated 22.12.2007 learned trial Court acquitted the accused persons and also observed in para 18 of its judgment that respondent No.4 is directed to hand-over the custody of animals to the respondents No.2 & 3. Since the custody of the animals were not handed over by respondent No.4 to respondents No.2 & 3, therefore, learned Court below issued notices to the petitioner who stood as surety to respondent No.4. An appeal was filed by the petitioner against the judgment dated 22.12.2007 passed by JMFC, wherein the observations relating to handing over the custody of animals to respondents No.2 & 3 was challenged. This appeal was registered as Cr.A. No. 216/04 and the same was dismissed by the impugned order, against which present petition has been filed. 3. Learned counsel for petitioner submits that learned Courts below committed error in not considering the fact that while passing an adverse order against the petitioner, an opportunity of being heard should be given. It is submitted that since learned trial Court has directed respondent No.4 to hand over the custody of animals to respondents No.2 & 3, therefore, it was necessary on the part of learned Court below to issue notices to respondent No.4 and provide an opportunity of hearing. Learned counsel submits that since the petitioner was surety to the respondent No.4, therefore, it was mandatory on the part of learned Court below to give an opportunity of hearing to the petitioner as well. Learned counsel submits that since the petitioner was surety to the respondent No.4, therefore, it was mandatory on the part of learned Court below to give an opportunity of hearing to the petitioner as well. It is submitted that learned appellate Court also committed error in holding that the appeal is not maintainable. Learned counsel further submits that the custody of the animals were not given to Narayan respondent No.4 in his personal capacity, but the same was given to respondent No.4 as president of Gaushala Mail Ashram Bamnala. It is submitted that while giving direction to the respondent No.4 to handover the custody of animals to respondents No.2 & 3, number of aspects of the case were at all not taken into consideration by the learned Courts below. It is submitted that in the facts and circumstances of the case, impugned order passed by the learned appellate Court whereby the appeal was dismissed and also the observations made by the learned trial Court in para 18 of the order relating to the direction to the respondent No.4 to handover the custody of animals be set aside. 4. Learned counsel for respondent No.1 submits that the status of petitioner was of surety to respondent No.4. It is submitted that respondent No.4 was the person in whose custody the animals were given and the petitioner is the surety to respondent No.4, therefore, there was no justification to issue any notice to the petitioner or to respondent No.4 before passing any order. It is submitted that learned appellate Court has rightly dismissed the appeal holding the same as not maintainable. 5. Section 451 of CrPC deals with the order of custody and disposal of property pending trial. Section 452 deals with order for disposal of property at conclusion of trial. Section 454 of CrPC deals with the appeal against the order passed under section 452. 5. Section 451 of CrPC deals with the order of custody and disposal of property pending trial. Section 452 deals with order for disposal of property at conclusion of trial. Section 454 of CrPC deals with the appeal against the order passed under section 452. Section 452 and 454 reads as under: Section 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. (2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457,458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 454 -- Appeal against orders under section 452 or section 453 : 1. Section 454 -- Appeal against orders under section 452 or section 453 : 1. Any person aggrieved by an order made by a Court under section 52 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. 6. Bare reading of section 452 and 454 makes it clear that section 452 empowers the Court to pass order for the disposal of property at the time of conclusion of trial and S. 454 gives right to the affecting party to prefer an appeal against such order passed u/s 452 Cr.P.C. Since the petitioner was surety to respondent No.4, therefore was an aggrieved party with the order of the learned Court below relating to delivery of live stock to respondent No.2 and 3. Therefore petitioner was within his rights to challenge the judgment so far as it relates to delivery of live stock to respondent Nos. 2 and 3. 7. The next question which requires determination is whether petitioner was entitled to file an appeal against the impugned order passed by Judicial Magistrate, whereby respondent No.4 was directed to hand over live stock to respondent Nos. 2 and 3. The offence alleged against the respondent Nos. 2 & 3 was under the provisions of Prevention of Cruelty to Animal Act and also Madhya Pradesh Agricultural Cattle Prevention Act. The allegations were that respondent Nos. 2 & 3 were taking live stock to slaughter house without any pass or permit. It appears that the custody was given to the respondent No.4 in the capacity of President, Gaushala Mail Ashram Bamnala. Since the possession of live stock was handed over to Gaushala Mail Ashram Bamnala, therefore, the learned Magistrate was required to ascertain from the said trust with regard to the expenses made by the trust for keeping them in safe custody. Since the possession of live stock was handed over to Gaushala Mail Ashram Bamnala, therefore, the learned Magistrate was required to ascertain from the said trust with regard to the expenses made by the trust for keeping them in safe custody. Without holding any such enquiry the learned Magistrate has passed the order that the live stock should be handed over to the respondent Nos. 2 &3. 8. In the facts and circumstances of the case the, petition filed by the petitioner stands allowed. The impugned order passed by learned Special Court, Mandleshwar in Cr.A. No. 216/04 stands set aside and para 18 of the judgment dated 6.12.2004 passed by JMFC, Kasrawat in Criminal Case No. 37/96 whereby the respondent No.4 was directed to hand over the possession of live stock to respondent Nos. -2 & 3 is set aside with a further direction to the learned Magistrate to pass a fresh order, so far as it relates to giving the custody of live stock of animals after giving an opportunity of hearing to the petitioner and respondents including Gaushala Mail Ashram Bamnala. Before passing any order learned JMFC is further directed to take present status of the live stock from the Gaushala Mail Ashram Bamnala to whom the custody was given through respondent No.4. Parties are directed to remain present before the learned Court below on 10.11.2008. 9. With the aforesaid observations, petition stands disposal of.