Judgement

FAZAL ALI, J. - This appeal by special leave raises a short point of law regarding the power of the Court in indemnifying the owner of the property which is destroyed or lost whilst in custody of the Court.

2. It appears that a theft took place in the house of the complainant/appellant on the night of 28/29 November, 1958 in the course of which a large number of ornaments and cash etc. were stolen from the possession of the complainant/appellant. On February 8, 1959 a number of stolen articles were recovered from accused Nos. 1 to 5 and various panchnamas evidencing recovery of those articles were prepared. On February 10, 1959 the articles sized by the police from the possession of the accused were identified by the complainant at a test identification parade and ultimately a charge-sheet was submitted against the five accused on February 20, 1959. The articles were produced before the Court of the Chief Judicial Magistrate who directed the police officer concerned to retain the articles in his custody until the same were verified and their value was determined by a goldsmith. The Court moved the higher authorities for obtaining sanction of the necessary funds for payment of the fees of the goldsmith. Thereafter the articles were kept by the Sub-Inspector, Haveri in the Guard Room of the police station in a trunk with a list of the articles and a corresponding entry in the concerned Register. Towards the end of the year the Sub-Inspector was transferred and his successor took charge of the post of Sub-Inspector, Haveri, and also verified the articles kept in the trunk on December 23, 1959. It is not disputed that the new Sub-Inspector, after taking charge, found the articles in the trunk intact. The Sub-Inspector, however, proceeded on leave on 31-12-1961 for a period of 9 days ending January 8, 1961. After the Sub-Inspector returned from leave he was directed by the Court to produce the articles kept in the custody of the police under the orders of the Court. Thereupon the Sub-Inspector opened the trunk on January 17, 1961 and to his utter dismay found that the trunk contained only stones and no articles all of which had disappeared. The Sub-Inspector immediately filed a complaint of a theft of the ornaments being Crime No. 2 of 1964 and which is Ext. 34 appearing at pp. 182-191. In this complaint the value of the property is shown as Rs. 10,080/2/- which may be rounded off to Rupees 10,000/-. As the accused were not traceable a summary final report was submitted. The original charge-sheet submitted by the police against the five accused proceeded to its logical and resulting in conviction of the accused by the Trial Magistrate and an unsuccessful appeal to the Sessions Judge, Dharwar. The High Court in revision, however, acquitted the accused on technical grounds. After the conclusion of the trial, the complainant filed an application before the trial Magistrate for return of the stolen articles, or in absence of the same for payment of the equivalent value thereof. This application was rejected by the Magistrate on the ground that as the articles never reached the custody of the Court, the complainant was not entitled to their restoration. The complainant then filed an appeal before the Sessions Judge, Dharwar, which also met with a similar fate. Thereafter the complainant went up in revision to the High Court of Mysore which was also dismissed by the High Court mainly on the ground that as the articles had not been placed in the custody of the Court, provisions of the Code of Criminal Procedure, 1898 - hereinafter referred to as the Code - had no application. The appellant prayed for leave to appeal to the SC against the order of the High Court, which having been refused, the appellant obtained special leave from this Court and hence this appeal.

3. In support of the appeal Mr. Gupte submitted a short point before us. It was contended that the High Court was in error in holding that the articles were not physically