Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 883 (BOM)

Bhagawan Shriram Ahirrao v. State of Maharashtra

2012-04-27

A.V.NIRGUDE

body2012
JUDGMENT 1. By consent of parties, this petition is taken up for final hearing at the stage of admission. 2. Rule. Rule made returnable forthwith. 3. This writ petition filed under article 227 of the Constitution of India, challenged the propriety of the concurrent orders passed by the Courts below rejecting the petitioner’s application under section 451 of Cr.P.C. seeking return of muddemal gold and silver articles. The petitioner is the complainant in a case which is registered as Crime No.5 of 2007 on 10.01.2007 for offences punishable under sections 454, 457, 380, 411, 413, 414 r/w 34 of the Indian Penal Code, against unknown persons. The petitioner alleged that his jewelery shop was burgled between night of 10th and 11th January, 2007. He lodged complaint immediately after the incident. The police investigated into the crime & arrested about six accused and recovered from the accused gold ingots weighing 100 gm and silver ingots weighing 6 kg. It is prosecution case that these muddemal articles are made by melting the ornaments and the articles that were stolen from the shop of the petitioner. Pending the criminal case, the petitioner moved application under section 451 of the Cr.P.C. for return of gold and silver ingots on Supurtnama. Learned Magistrate refused to oblige him on the ground that what was stolen from the shop were ornaments and what was sought to be returned, are different articles. Even learned Sessions Judge refused to interfere and held that since the articles are different than what was stolen, the application should fail. In both the Courts, the prosecution clearly mentioned that the gold and silver ingots are made from the ornaments and articles stolen from the petitioner’s shop. Even the accused admittedly did not object to the return of ingots. At the Trial Court, the Investigation Officer clearly mentioned that he had no objection for return of the muddemal articles. 4. I think both the Courts below committed serious error in rejecting petitioner’s application. They probably lost sight of the prosecution case. The prosecution clearly mentioned that the theft of gold ornament and silver articles took place at the shop of the petitioner on 10th January, 2007 and that the accused converted the gold and silver articles into ingots. Such ingots made from the ornaments and articles stolen from the petitioner’s shop were recovered during the investigation. The prosecution clearly mentioned that the theft of gold ornament and silver articles took place at the shop of the petitioner on 10th January, 2007 and that the accused converted the gold and silver articles into ingots. Such ingots made from the ornaments and articles stolen from the petitioner’s shop were recovered during the investigation. It is thus clear that the prosecution believed that the gold or silver ingots muddemal articles are belonging to the petitioner/complainant. There is no dispute thus about ownership of the petitioners to the muddemal articles. Even if the physical form of stolen articles is changed, the petitioner did not lose ownership of the articles that were stolen. In view of this, the petitioner has made out a clear case for return of muddemal articles on Supurtnama. He shall give undertaking to the Court that he would produce ingots in their original form before the Court as and when he was asked to do so. Therefore, the petition should succeed. The criminal writ petition is allowed. Rule made absolute in the following terms. 5. Learned J.M.F.C., Jamner shall return the muddemal articles (gold and silver ingots) to the petitioner on his executing Supurtnama and bond of suitable amount. The bond shall remain effective till the disposal of the criminal case.