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1993 Supreme(Bom) 430
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Bhikaji s/o. Tukaram Darade... Applicant.
Versus
The State of Maharashtra and others... Respondents.
Criminal Application No. 323 of 1993, decided on 29-9-1993.
Advocates appeared:
H.K. Mundhe, for applicant.
K.B. Chaudhary, A.P.P., for respondent No. 1 - State.
B.D. Mundhe, for respondent Nos. 2 and 3.
Headnote:Sections 452, 453 and 454-Scope.
Chapter XXXIV of the Code, 1973 deals with the procedure for the disposal of the property which was subject matter of any Criminal Case or was seized during the investigation. If the property is subject to speedy and natural decay, it can be sold or otherwise disposed of and in other cases, it can be directed to be returned the person claiming to be entitled to possession thereof or can be confiscated or can be directed to be destroyed.
Such a claim can be either by the complainant or accused in the case or even by the third party. Sub-section (2) of Section 452 Cr. P. C. 1973 provides for asking the claimant to execute a bond before the property is handed over to him ensuring the restoration of such property to the Court if the order is modified or set aside on appeal or revision. Section 454 provides the remedy of in appeal if a person is aggrieved by an order made by the Court under Section 452 or 453 about the disposal of the property.
Sub-section (3) of Section 454 lays down that 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. Therefore, the reconsideration of the decision of the claim in respect of the property by the Criminal Court under Section 452 or 453 Cr. P. C., 1973 is permissible either in an appeal filed by the claimant under Section 454 (1) and (2) or in an confirmation proceedings or revision in respect of the order of conviction or acquittal as the case may be, recorded in the Criminal Case.
The whole scheme as laid down under Sections 452, 453 and 454, if read together, would give a clear understanding that the claim to the property advanced in Criminal Case can be decided by the trial Judge, appellate Court or the revisional Court and also in an appeal provided under Section 454.
The legislature has not laid down that if an appeal is not preferred under Section 454 (I), the order passed by the trial Court in respect of the disposal of the property shall not be varied in appeal revision or confirmation proceedings. It has been specifically provided that these courts can exercise the powers to vary the order in respect of the disposal of the property. Therefore, the submission made by Shri Mundhe does not appear to be sound, that in case, no appeal is filed by a person whose claim to the property was negatived, appellate Court or the revisional Court would be incompetent to reconsider the order of the disposal of the property.
Remedy of appeal provided under Section 454 (1), Cr. P. C. 1973 to any person aggrieved is in addition to the normal remedy of appeal which is available to the complainant, State or the accused against the order of conviction or acquittal, as the case may be. The remedy under Section 454 (1) is not to be read in exclusion with the remedy of appeal or revision against an order in respect of the criminal offence.
The function entrusted to the Criminal Courts to pass orders in respect of the disposal of the property which are subject matter of the Criminal Cases is a sort of supplementary proceedings and the same forum is entrusted with both the jobs. The order passed by the trial Judge in respect of the criminal offence can be varied or annulled by the appellate or revisional Court. Similarly, the order passed in respect of the disposal of the property also can be varied or annulled by that Court. It is not necessary that there should be a separate grievance made by the claimant or he should file a separate proceeding, person who is not either the complainant or an accused can also claim the property and it transpires In the evidence before the trial Judge that the property is owned by third party.
In that event, the Judge is always competent to pass orders for restoration of that property to him. When a judgment in a Criminal Case is passed, such a third party not being either complainant or accused is normally not present in the Court or aware of the decision, no notice to such a person is provided by the statute. If he gets the knowledge of the rejection of his claim by any source or, in case, he is an accused or complainant in the Criminal Case, does not wish to challenge the order of conviction or acquittal, as the case may be, then he may file an appeal in respect of the rejection of his claim to the property only under Section 454 (1) Cr. P. C. 1973.
But when no separate appeal has been filed under Section 454 (1), the powers of the appellate or the revisional Court to deal with the order of the disposal of the property are saved by Sub-section (3) of Section 454 Therefore it will have to be held that the appellate and the revisional Court has power to vary or annul any order of the disposal of the property passed by the trial Court while dealing with the order of conviction or acquittal, as the case may be.
Sections 453 and 454-Propcrty-Order in respect of likely to affect third -Notice must be given to said third party though not provided in Statute.
2. Shri H.K. Mundhe, learned Advocate appearing for Applicant, made two submissions in support of the prayer in the application. Firstly, that any order passed regarding disposal of the property in a criminal case cannot be varied by the appellate or revisional Court without hearing the party in whose favour the order was made by the trial Court. In the instant case, no notice was served on Bhikaji and, therefore, the order passed by the learned Sessions Judge is nullity so far as it speaks about the disposal of the property. Secondly, he submits that Jijabai had staked her claim as owner of stolen property before the trial Magistrate and the trial Magistrate had after considering her claim ordered that the property be handed over to the complainant. This rejection of the claim of Jijabai could have been challenged by her by filing an appeal as provided in section 454 of the Code of Criminal Procedure, 1973. In the absence of any appeal by Jijabai, the learned Sessions Judge deciding appeal against the conviction had no jurisdiction to pass any order varying the order of disposal of the property passed by learned Judicial Magistrate. According to Shri Mundhe, a remedy of challenging the conviction in appeal and the remedy to challenge an order passed under section 452 or 453 Cr. P.C. 1973 is available to any person who need not necessarily be either complainant or accused in the case. This remedy being of a wider scope, excludes the reconsideration of the disposal of the property by the appellate Court hearing appeal against conviction or acquittal, as the case may be, in the absence of any appeal under section 454 by the aggrieved person. Shri B.D. Mundhe, learned Advocate appearing for respondents 2 and 3, submitted that the powers vested in the Court of appeal under the Code of Criminal Procedure, 1973 includes power to vary any order passed by the trial Magistrate while dealing the C
