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Madhya Pradesh High Court · body

2009 DIGILAW 278 (MP)

Prahlad v. State of M. P.

2009-02-27

N.K.MODY

body2009
ORDER 1. Being aggrieved by the order dated 14.1.2009 passed by III ASJ, Indore in Criminal Revision No. 374/2008 whereby the order dated 5.5.2008 passed by learned JMFC, Indore in Criminal Case No. 18/2008 whereby the application filed by the petitioner for return of submersible motor pump was dismissed, was maintained, the present petition has been filed. 2. Short facts of the case are that petitioner was prosecuted for an offence punishable under section 379 of IPC in Criminal Case No. 538/ 2004 and was convicted vide judgment dated 24.7.2007 for an imprisonment of six months and fine of Rs. 500/-. Being aggrieved by the judgment passed by learned JMFC, Indore an appeal was filed by the petitioner which was registered as criminal appeal No. 506/2007 and learned III ASJ, Indore vide judgment dated 12.3.2008 allowed the appeal filed by the petitioner and set-aside the judgment dated 24.7.2007 passed by learned JMFC, Indore holding that the prosecution has failed to prove that petitioner committed offence under section 379 of IPC and learned appellate Court further directed that fine of Rs. 500/- which has been deposited by the petitioner be refunded to the petitioner. Since no observation was made by learned appellate Court relating to the alleged stolen property which is submersible motor pump, therefore, an application was filed by the petitioner before the learned trial Court for return of submersible motor pump. The said application was dismissed by the learned trial Court vide judgment dated 5.5.2008 on the ground that since learned appellate Court has not made any observation in regard to return of submersible motor pump, therefore, no order can be passed by learned trial Court. Against this order revision petition was filed by the petitioner which was registered as 374/2008 and was dismissed by III ASJ, Indore on the ground that against the impugned order dated 5.5.2008 passed by learned JMFC, Indore appeal under section 454 of CrPC is maintainable and the revision petition filed by the petitioner is not maintainable, hence revision petition was dismissed against which the present petition has been filed. 3. 3. Learned counsel for the petitioner argued at length and submits that it is true that appeal is provided under section 454 of CrPC against the order of rejection of the application filed by the petitioner for return of submersible motor pump which was seized during investigation but at the same time revision is also maintainable. For this contention reliance is placed on a decision of Allahabad High Court in the matter of Sri Bharat Mahey v. State of U.P., 1975 CriLJ 890 wherein it, was held that on a reading of sections 457 (1) (2) and 458 (1), Criminal P.C., the position is clear that both final orders and temporary orders with regard to the disposal of seized property are contemplated under these two sections. By no stretch of imagination can be impugned order be deemed to be in the nature of an interim order. It is a final order regarding the disposal of the goods in question. As such, the revision filed by the applicant in this Court will not be barred on the ground that it is an interlocutory order passed in a proceeding which is not revisable. 4. Learned counsel for the petitioner submits that since the order of return of seized article was not final order, therefore, the revision petition was also maintainable. It is also submitted that on technical ground only the revision petition could not have been dismissed. It is submitted that the petition filed by the petitioner be allowed and the impugned order passed by learned Courts below be set-aside and it be directed to return the seized submersible motor pump. 5. Learned counsel for the State submits that under section 454 of CrPC remedy is available to the petitioner upon dismissal of the application under section 45 of CrPC by way of filing an appeal. It is submitted that since a specific provision is provided under Code of Criminal Procedure, therefore, no illegality has been committed by learned revisional Court in dismissing the revision petition. It is submitted that the petition filed by the petitioner be dismissed. 6. It is submitted that since a specific provision is provided under Code of Criminal Procedure, therefore, no illegality has been committed by learned revisional Court in dismissing the revision petition. It is submitted that the petition filed by the petitioner be dismissed. 6. From perusal of record, it appears that the application filed by the petitioner was registered as Criminal Case No. 18/2008 and was dismissed by learned trial Court thus, it was the final order and in view of the law laid down by Allahabad High Court in the matter Sri Bharat Mahey (supra) a revision petition is also maintainable under section 397,401 of CrPC. Apart from this, on technical ground only petitioner cannot be denied the justice. Even if, learned revisional Court was of the view that it is an appeal which is maintainable, then, the petitioner could have been directed to convert the revision petition into appeal. 7. So far as the ownership of the property is concerned, it was submersible motor pump. The case of the complainant was that the submersible motor pump was purchased by donation but no investigation took place in that regard. In the facts and circumstances of the case, since submersible motor pump was seized from the possession of the petitioner, therefore, seized article ought to have been returned to the petitioner. In view of this, the petition filed by the petitioner is allowed and the order dated 14.1.2009 passed by III ASJ, Indore in Criminal Revision No. 374/ 2008 and the order dated 5.5.2008 passed by learned JMFC, Indore in Criminal Case No. 18/2008 are set-aside with a further direction that the seized article i.e. submersible motor pump which was seized from the petitioner be returned to the petitioner. 8. With the aforesaid observation, petition stands disposed of.