ORDER :

1. The petitioner was charge-sheeted for offence punishable under Sections 304B & 498A of the IPC and Sections 3 & 4 of the Dowry Prohibition Act and convicted by the jurisdictional criminal court and ultimately, acquitted by this Court vide judgment dated 3-5-2017 passed in Cr.A.No.805/2013 vide Annexure P-1. Thereafter, he applied for releasing the property seized in the said crime and kept in the malkhana of Police Station Kotwali, Jagdalpur. The 1st Additional Sessions Judge by order dated 10-1-2019 directed the Station In-charge, Police Station City Kotwali, Jagdalpur to give the property mentioned in the said order to the petitioner and file report to that effect, however, the Station House Officer submitted report to the said Court on 15-1-2019 vide Annexure P-3 that the property seized in Crime No.268/1992 was misappropriated by Head Constable Sukal Singh Gawde against whom Crime No.37/1997 for offence punishable under Section 409 read with Section 34 of the IPC has been registered and he is being prosecuted. The petitioner again made application to the said Court on 18-1-2019 that as per the order of the Court dated 10-1-2019, he is entitled for the property, but the property is missing and not available in the Police Station. However, this time, the learned Additional Sessions Judge by its order dated 28-1-2020 (Annexure P-11) held that as per the report submitted by the Station House Officer, Police Station Kotwali, Jagdalpur, the property which was kept in the malkhana has been misapprorpriated by the Incharge of malkhana, therefore, the petitioner is at liberty to take proper steps before in accordance with law by filing application before the higher officer of the concerned Department or before the State Government. The said order dated 28-1-2020 passed by the 1st Additional Sessions Judge, Jagdalpur has been called in question in this petition under Section 482 of the CrPC.

2. Mrs. Renu Kochar, learned counsel appearing for the petitioner, submits that it is the duty of the Court to pass order with regard to the property which has been seized and once the property is stolen, lost or destroyed; the Court has power to order payment of the value of the property. She would rely upon the decision of the Supreme Court in the matter of Smt. Basava Kom Dyamogouda Patil v. State of Mysore and another, AIR 1977 SC 1749 in support of her contention.

3. On the other hand, Mr. Animesh Tiwari, learned State counsel, submits that it has clearly been informed to the Court that the property has been stolen/misappropriated by the malkhana incharge and Crime No.37/1997 for that offence punishable under Section 409 read with Section 34 of the IPC has been registered against the said malkhana in-charge.

4. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

5. It is not in dispute that pursuant to the acquittal of the petitioner, the learned Additional Sessions Judge has directed for returning the property to the petitioner, but since the property is said to have been misappropriated by the malkhana in-charge, the learned Additional Sessions Judge by order dated 28-1-2020 held as under: -

28@01@2020

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