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1990 Supreme(Ori) 210
IN THE HIGH COURT OF ORISSA
V. Gopalaswamy, J.
SARAT CHANDRA PADHI - APPELLANT
Versus
BIJOY KUMAR BASTARAI AND ANOTHER - RESPONDENT
Criminal Revision No. 468 of 1986
Decided On : 08-08-1990
S.K. Padhi, B. Rath, J.M. Das and P.K. Mishra-II, for the Appellant; B.B. Ratha, B. Pradhan, R.P. Mahapatra, M. Misra, B. Senapati and B. Ratha and H.K. Jena, Additional Government Advocate, for the Respondent
The court's discretion in ordering the disposal of property under Section 452, CrPC is to be exercised judicially and in accordance with sound principles of reason and justice, taking into account the class and nature of the property and the material before it.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 452 - ORDER FOR DISPOSAL OF PROPERTY AT CONCLUSION OF TRIAL - SCOPE AND APPLICATION - COURT'S DISCRETION - CONFLICTING CLAIMS TO PROPERTY - PROCEDURE TO BE FOLLOWED.
Fact of the Case:
The petitioner's mother's gold mali was stolen from her neck. The police recovered the gold mali from the accused, Bijay Kumar Bastarai, and filed a charge sheet against him and his co-accused, Uma Charan Digal, under Sections 457/380/34 IPC. The trial court acquitted both the accused and ordered the return of the gold mali to the informant. The accused appealed to the Sessions Court, which allowed the appeal and directed the return of the gold mali to the accused.
Finding of the Court:
The High Court held that the trial court's order was correct as there was no evidence to prove that the gold mali recovered from the accused was the same gold mali that was stolen from the informant's mother. The High Court also held that the Sessions Court erred in mechanically following the normal rule of returning the seized property to the accused without considering the conflicting claims of the parties.
Issues: 1. Whether the trial court was correct in ordering the return of the gold mali to the informant? 2. Whether the Sessions Court erred in allowing the appeal and directing the return of the gold mali to the accused?
Ratio Decidendi: 1. The scope of the powers exercisable under Section 452, CrPC is only summary and does not adjudicate upon the civil rights of the parties. 2. Under Section 452, CrPC, the choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. 3. When there are conflicting claims to the property, the title can only be decided by a civil court.
Final Decision: The High Court partly allowed the revision petition and modified the order of the Sessions Court. The High Court directed that the seized gold mali should continue to be in the custody of the trial court for a further period of two months. If the informant filed a civil suit to establish his title to the gold mali within that period, the trial court should continue to keep the property in its custody. However, if no civil suit was filed within the specified period, the trial court was directed to deliver the gold mali to the accused.
JUDGMENT :
V. Gopalaswamy, J. - The facts giving rise to this revision may be briefly stated as follows:
On the night 20/21-2-1982 at village Barakhama (within Balliguda P.S. in Phulbani district) at about 1 a. m. same unknown culprits entered the house of the informant (the present, Petitioner) and committed theft of one gold Mali weighing about 4 tolas from the neck of his mother who was sleeping in the front room of the house. The informant lodged the F.I.R. about the occurrence and the police on the basis of the report proceeded with the investigation of the case and during the course of such investigation gold beads etc at the alleged stolen gold mali in separated bits were recovered from the Present opposite patty No. 1. Bijay Kumar Bastarai under seizure list Ext. 1 and the same are marked as M.O. I and conveniently referred to herein after as the gold mali, M.O. I. As accused Bijay and co-acused Uma Charan Digal went to Bhanjanagar for selling the gold mali M.O. I and as the same was recovered from accused Bijoy at Bhanjanagar the police registered G.R Case No. 49 of 1982 against the present opposite party, No. 1 and the said Uma Charan Digal and submitted the charge-sheet against the both opposite party No. l- and Uma Charan Digal stood their trial u/s 457/380/34 I.P.C. The trial Court acquitted them of all the charges levelled against them. While so acquitting them the trial Court passed an order directing the gold Mali M.O.I seized in the case to be returned to the informant. Being aggrieved by the said order of disposal passed by the S.D.J.M., Balliguda, the present opposite party No. 1 preferred Criminal Appeal No. 35 of 1985 before the Sessions Judge, Phulbani. On hearing both the parties the learned Sessions Judge allowed the appeal and directed that, the seized gold Mali M.O. I be returned to the present opposite party No. 1. Being aggrieved by the said order the present Petitioner has preferred this revision.
2. So the bone of contention between the present Petitioner and the opposite party No. 1 is that each of them claims that he is entitled to the possession of the gold Mali M.O. I and so the same ought to be returned to him in view of the provisions u/s 452, Code of Criminal Procedure.
3. For convenience of ready reference Section 452(1), Code of Criminal Procedure is quoted below:
452. Order for disposal of property at conclusion of tria1-(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 procedure 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.
Subsection (1) of Section 452 of the new Code reproduces Sub-section (1) of Section 517 of the old Code.
4. In G.R. Case No. 49 of 1982 during the course of the investigation no test identification parade was conducted in respect of the seized gold Mali M.O. I. The informant's mother from whose neck the gold Mali was stolen was not examined as a witness in the case to identify the seized gold Mali M.O. I to be the stolen gold Mali. None of the female members of the informant's family was examined to identify the seized gold Mali M.O. I to be the Mali which was stolen from the neck of the informant's mother on the relevant night. It is only the informant who deposed that the gold Mali M.O. I was the Mali which was stolen from the neck of his mother. In view of these circumstances: the learned S.D.J.M. arrived at the finding that it is not duly proved if the gold Mali M.O. I was the gold Mali stolen from the neck of the informant's mother. The learned S.D.J.M. did not give any categorical finding that the gold Mali M.O. I belonged to accused Bijoy Kumar (the present opposite party No. 1). From the statements of the two accused persons u/s 313, Code of Crim
