1984 Supreme(MP) 400

K. L. Shrivastava, J.
Gopal v. Kanhaiyalal.
Cr. R. No 147 of 1982 (I); Decided on 30-7-1984.

Headnote:(1) Criminal P.C., 1973 -- Ss. 397 and 401 -- revision under -- not a statutory right to demand adjudication on question of fact or of law -- interference to be made in exceptional cases.

        (2) Criminal P. C., 1973 -- S. 452 -- case of criminal trespass ended in acquittal - accused is entitled to possession of the property.

        (3) Penal Code, 1860 -- Ss. 448 and 506 -- accused acquitted finding him rightful holder in possession -- possession should be handed over to him in interest of justice.

        The petitioner Gapal lodged a report at police Station Sailana on 18-11-80 that the respondent Kanhaiyalal after breaking open the lock, had taken possession of his house and had threatened to kill him. A crime under section 448 and 506 IPC was registered and investigation was set afoot. Ultimately, respondent Kanhaiyalal was prosecuted for offences under sections 448 and 506 IPC (vide Criminal Case No. 485 of 1980). On 22-1-82, the case ended in acquittal on the ground that Kanhaiyalals entry in the house was rightful.

        The respondent Kanhaiyalal, on 1-2-1982, applied to the Magistrate that during investigation the police had sealed the house in question. He was in possession of the house in his own title and the civi1 litigation was also pending. It was prayed that in the circumstances, possession of the house should be deLi"Vered to him. The Magistrate obtained police report touching the application and passed the order dated 25-2-82 allowing the prayer of the respondent. Aggrieved by the aforesaid order, the petitioner challenged it in appeal, but has been unsuccessful as stated earlier. By the present petition, the petitioner has invoked this Courts revisional jurisdiction.

        Held : Sec. 452 of the Code 1973 provides for disposal of the property on conclusion of the trial. The corresponding provision in the old Cr. P.C. was incorporated in sec. 517.

        In the decision in Narsingharaos case (AIR 1967 Orissa 182) in which reliance has been placed on the decision reported in 1960 JLJ 789 it has been held that sec. 528(1) covered only those cases which ended in conviction and wherein dispossession of the property took place by application of criminal force or intimidation by an accused and that every other class of dispossession of immoveable property came within the sweep of Sec. 517 (1) which speaks of any property. It has, therefore, to be held that the contention that Sec. 452 of the Cr. P. C. 1973 does not apply to immovable property, has to force.

        A perusal of Ex. P/4 in the record of the connected criminal case before the Magistrate shows that the police had merely taken possession of the lock opened by the respondent and of some other articles. In the report dated 18-2-82 submitted by the police to the Magistrate for deLi"Very of possession of the house in question, it has been stated that during investigation, the house in question had been locked by the police and had been sealed.

        Relying on the decision in Smt. BKD Patil v. State of Mysore (AIR 1977 SC 1749) it has been urged that production of property before the Court does not mean physical custody or possession, but includes even control exercised by the Court by passing an order regarding the custody of the articles, when produced before it. In the instant case, however it cannot be held that the house in question came within the four categories of the property envisaged under section 452 of the Cr. P. C. 1973.

        In the decision in State Bank of India v. Rajendra Kumar Singh and others (1969 JLJ 479) the property involved consisted of currency notes and with reference to Sec. 520 of the old Cr. P. C. it was observed that though the statute is silent regarding notice, there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.

        In the present case, the petitioner was examined as PW 1 in the criminal case and therefore, he can seek no help from the decision referred to in the preceding paragraph.

        In CS No. 209-A of 1980, of the Court of 4th Civil Judge, Class II, Ratlam, filed by the petitioner Gopal against Radhabai alias Radhibai and four others including the respondent, his application for grant of temporary injunction to him in relation to his possession of the house in question was dismissed on 3-11-1980 on the finding that the respondent was in possession of the house in his own right as purchaser from Smt. Radhabai. The certified copy of the order of the criminal case referred to above.

        In decision in Narsingharaos case (supra) it has been held that the Magistrate could order deLi"Very of possession of the property in exercise of inherent powers.

        In the decision in Ramamurthis case (AIR 1962 A. P. 263), during the course of investigation the police had evicted the accused from the house in question and had restored its possession to the complainant. The trial for offences under sections 448 and 457 IPC terminated in favour of the accused persons, and it was held that as no other specific provisions applicable to the special facts of the case order for restoration of possession to the accused should be passed to secure ends of justice so that the complainant does not get unfair advantage of evicting tae accused in original proceedings though in fact no offence of trespass by the accused was proved.

        It may be pointed out that the revision petition does not cloth the petitioner with statory right to demand an adjudication from the Court either on a question of fact or on a question of law or upon both. The possession is different in an appeal. The exercise of revisional power is discretionary with the Court and it interferes in exceptional cases where it seems that some real and substantial injustice has been done. 1960 JLJ 789, AIR 1967 Orissa 182. AIR 1977 SC 1746 and 1959 JLJ 479 relied on.