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2002 Supreme(Ker) 196
Judges : M.R.HARIHARAN NAIR
The President - Appellant
Versus
C.V.Manoharan - Respondent
Case No : Crl. R.P. No. 758 of 1994
Decided On : 03/22/2002
Advocates Appeared :
For Petitioner:T.R. Raman Pillai, T.R. Ramachandran Nair, Advocates. For Respondent: R1 NN. Sugunapalan, Advocate, R2 TK. Latiff, Public Prosecutor.
Headnote:
Code of Criminal Procedure – S. 162 451 452 453 – Possession of Stolen Jewellery – A theft of various valuable belonging to the Temple, represented by the present revision petitioner, took place –Subsequently two persons were arrested and based on the confession statement given by the second accused part of the stolen articles as ingots (MOs. 39 and 40) were recovered from the MJewellery, of which the first respondent is a Partner–The Sessions Court, however, set aside the said order and directed return of the said ingots to the present first respondent– The challenge in the revision is with regard to the said latter order–The question is whether it is the petitioner or the first respondent, who is entitled to possession of MOs. 39 and 40– Held, in an enquiry of the present nature, the question of possession and right to possession alone will be considered in the normal course –Ownership and title are matters for decision by competent Civil Court in case of further dispute –In view of the production of the aforesaid documents and in view of their proof by PW4, who is the Superintendent of Central Excise and Customs, which affords full corroboration to the evidence of the first respondent as PW2 regarding the seizure of the items, Court is of the view that the learned Appellate Judge did not commit any material illegality, irregularity or impropriety in the matter of his finding that there was no circumstance to disbelieve the case of the first respondent–It, is to be mentioned here that the seizure of the items took place nearly 19 months after the date of occurrence and the date of alleged sale by the second accused to the first respondent – It is against normal human conduct that the articles like gold crown and ornaments of temple would be preserved by a gold dealer like the first respondent forsuch a long period so as to afford opportunity to seizure, even in the form of ingots– Chances are more that the seized items were forcefully obtained by the police and got melted by PW3, as deposed by him–During hearing the first respondent brought to my notice the existence of G.O.(Rt) No. 1371/81/Home wherein the Government directed the police officers that no dealer should be forced to part with ingots unless he admits having received it as stolen article and having melted it into ingots– The seizure appears to have been made in violation of this–Further, the said seizure also took place nearly 8 months before the incident, which was the subject matter of the criminal case and more than 2 years before the seizure of the ingots– Revision petitioner’s contention in the matter fails–In the circumstances Court is not satisfied that there is scope for interference with the judgment of the Appellate Court– No illegality or irregularity is evident therein–The Revision is dismissed with this observation– Revision Petition Dismissed
M.R. Hariharan Nair, J.
A theft of various valuables belonging to the Puthyyedathukavu Devaswom Temple, Taliparamba, represented by the present revision petitioner, took place on 10.11.1983. Gold ornaments including a gold crown totally weighing 427 gms and silver articles weighing 4.122 kilograms were stolen. Subsequently two persons were arrested and based on the confession statement given by the second accused part of the stolen articles as ingots were recovered from the Manohar Jewellery, of which the first respondent is a partner. After trial, though both the accused were convicted by the trial court, this court in a Criminal Revision acquitted the second accused.
2. The first respondent had filed C.M.P. No. 2620of 1990 on 11.7.1985 before the trial court seeking return of the ingots. Though the petition was filed invoking Sec. 451 of the Cr.P.C. it was ultimately disposed of only by the transferee court after conclusion of the trial and at that time the power available with the court was under sec. 452 only. The trial court, after considering the question of return of Mos. 39 and 40, which were the ingots weighing 221 grams of gold and 1.388 kgs. Of silver, allegedly made from part of the stolen articles received by the present first respondent from the second accused, ordered release of the material objects to the petitioner herein. The Sessions Court, Thalasserry in Crl. A. No. 149 of 1993, however, set aside the said order and directed return of the said ingots to the present first respondent. The challenge in the revision is with regard to the said latter order.
3. Shri. T.R. Raman Pillai, who appeared for the petitioner, submitted that in the matter of return of stolen articles the inhibition contained in Sec. 25 of the Indian Evidence Act and in Sec. 162 of the Cr. P.C. are not applicable and that such statements could very well be looked into and acted upon. According to him, the confession statement given by the second accused and the case diary statement of the present first respondent given before the investigating officer would clearly show that Mos. 39 and 40 were actually made out of the stolen articles that the second accused sold to the first respondent and in that perspective the impugned order is unjustified. On the other hand, the learned counsel for the first respondent relied on case law to show that normally the articles recovered from a person should, on completion of the trial, be returned to himself. He also relied on the books of accounts maintained by the first respondent to show that actually there was a forceful seizure of Mos. 39 and 40 from the business place of the first respondent and that there was in fact no admission at all by him that they were part of the stolen property. Reliance was also placed on the evidence of PW3, who claims that he actually melted certain ornaments available in the business place of the first respondent to make Mos. 39 and 40 ingots according to the dictates of the Investigating Officer and out of compulsion.
4. Sec. 452 of the Cr. P.C., which is the relevant provision that governs return of Mos. 39 and 40, as on the date of judgment reads as follows :
S. 452 : Order for disposal of property at conclusion of trial.
1. When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
2. An order may be made under sub-sec. (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the court, engaging to restore such property to the court if the
