1988 Supreme(MP) 485

IN THE HIGH COURT OF MADHYA PRADESH
R.K. VARMA, J.
Nanuram - Applicant
Vs.
State of M.P. - Respondents
Misc. Cr. C. No. 2011 of 1986 (I)
Decided On : 30-07-1988

Headnote:(1) Criminal Procedure Code, 1973 – S. 452 – application under – should be decided by judicial order – evidence should be recorded.

       (2) Evidence Act, 1872 – S. 27 – confessional statement under – cannot be relied upon without recording evidence thereon.

        Short Note

       1. The complainant – non – applicant No. 2 Rameshchandra filed an application under section 452 of the Cr. P. C. on 27 – 9 – 1985 for return of the seized lump of gold after the trial had abated as a result of the death of the accused Abdul Rashid. The only witnesses who could be examined in the trial before its abatement were Santoshbai wife of the complainant Rameshchandra and Rameshchandra himself. No other witnesses including the invest gating officer had been examined and consequently, the relevant documents having bearing on the seizure of gold could not be proved. However, the learned Magistrate, while deciding the complainant's application under section 452 of the Cr.P.C. claiming possession of the seized gold, by his order dated 3 – 10 – 1985, directed delivery of the seized gold to the complainant – non – applicant. The learned Magistrate relied on the memorandum under section 27 Evidence Act whereunder the accused had made a statement that he had sold the gold bangles to the applicant Nanuram from whom molten gold was seized. In revision, the learned Sessions Judge has also, relied on the confessional statement of the accused in the impugned order. The applicant has filed this revision and complains that the application under section 452 of the Cr.P.C. for disposal of property has not been disposed of judicially and that no offence has been proved in respect of the seized property since the trial abated before the offence could be proved against the accused.

       Held : Learned counsel appearing for the complainant – non applicant No. 2 has submitted on the basis of the authority of Shrimati Maliti Danial Sawn v. Tulsiram (1957 MPLJ Note No. 77) and Prakash Chandra Jain v. Jagdish Govindrao and another (1957 MPLJ P. 673) that confessional statement under section 27 of the evidence Act and the statement to police under section 162 of the Code of Criminal Procedure can be considered for the purpose of deciding the application for disposal of property under section 452 of the Code of Criminal Procedure even when the trial comes to an end because of abatement as a result of the death of the accused.

       2. Having heard learned counsel and having considered the facts and circumstances of the case, I am of the opinion that the order of the learned Magistrate as well as the impugned order of the learned Sessions Judge passed in revision cannot be sustained being based on a memorandum under S. 27 of the Evidence Act without the same having been introduced in evidence in the case. An order partakes the character of judicial order only when it is based on evidence. The impugned order cannot be called a judicial order and must be set aside. However, it is the duty of the trial Magistrate to dispose of the application under section 452 of the Code of Criminal Procedure in accordance with law for a just disposal of the case and the true claimant must not be deprived of the property on account of a faulty procedure of the Court. It is, therefore, necessary to remand the case to the learned Trial Magistrate for the proper disposal of the application under section 452 of the Code of Criminal Procedure. The learned Magistrate shall examine the investigating officer to let the necessary documents from the police papers proved so that the same may form part of evidence in the case, to enable the learned Magistrate to decide the question on evidence. 1957 MPLJ SN 77 and 1957 MPLJ 673 referred to. Case remanded.