The court established that property converted from stolen items can still be returned to the original owner under Section 452(5) of Cr.P.C.

ORDER

The revision petitioner is PW2 in C.C. No.238/2011 of Chief Judicial Magistrate Court, Manjeri. The aforesaid calendar case arises from Crime No.29/2011 of Manjeri Police Station, which was registered for offences punishable under Sections 380, 454 and 461 of the Indian Penal Code.

2. The prosecution case is that on 16.01.2011 at about

11.30 a.m., the accused committed lurking house trespass by breaking open the front door of CW1’s house with the intention to commit theft and took away gold ornaments weighing 270 grams, a bank passbook, and a copy of driving license kept in the almirah. On the basis of the same, the final report was submitted, and as per the judgment dated 19.08.2016 in C.C.No.238/2011 of Chief Judicial Magistrate Court, Manjeri convicted the accused persons. Earlier, during the course of the investigation, the gold ornaments were recovered based on the confession statement of the accused and the said recovery was effected from jewellery owned by PW5. The gold ornaments were produced and marked as MO3 to MO9, and a gold coin was marked as MO10. It was also revealed that PW5, who purchased the gold ornaments, converted a part of the gold ornaments into an ingot and it was marked as MO11.

3. While convicting the accused persons, the learned Magistrate passed an order directing the release of the gold ornaments, gold coin and the said gold ingot to PW2, wife of the defacto complainant.

4. Challenging the order of conviction, the accused persons submitted an appeal before the Sessions Court. The said appeal was numbered as Crl.A. NO.161/2016 and culminated in the judgment dated 01.11.2019 by the Additional Sessions Court III, Manjeri. In the said judgment, the order of conviction was confirmed. But it was ordered that MO11 gold ingot was to be confiscated. This revision petition is filed by PW2 against the order of confiscation of MO11.

5. Heard Sri.Thareeq Anver K., learned counsel appearing for the petitioner and Sri.Vipin Narayan, learned Public Prosecutor for the State.

6. The specific contention of the learned counsel for the petitioner is that, even though the learned Sessions Judge ordered the confiscation of MO11, absolutely no reasons which lead to the said direction are seen in the order impugned. The learned counsel points out that the prosecution has recovered MO11 based on the statement given by PW5 to the effect that he converted the gold ornaments purchased from the accused into a gold ingot. It is evident from the observations made by the trial court in the judgment in C.C. No.238/11 that the PW5 has identified MO11 as well. It was in that circumstance that MO11 was directed to be released to the petitioner herein by the trial court, which finding was set aside by the appellate court.

7. Therefore, even though no reasons are stated in the appellate judgment, it appears that such an order was passed due to the reason that the articles which were taken away from PW2 were gold ornaments, and MO11 was not in the same form when it was lost. However, as rightly pointed out by the learned counsel for the petitioner, Section 452 (5)of Cr.P.C. specifically contemplates that the decision as to the disposal of the property to be taken under Section 452 Cr.P.C. includes the property which may have been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise. In this case, materials indicate that the gold ingot was made of gold ornaments taken away from PW2 by committing the offence. The same was properly identified by PW5, who purchased the said gold ornaments. Hence, the same would fall under sub section of Section 452 of Cr.P.C. It is also to be noted in this regard that, apart from PW2, no other persons have come forward claiming rights over MO11. In such circumstances, the order passed by the learned Sessions Judge to the extent directing confiscation of MO11 was not proper. The learned Magistrate ordered the return of the gold, including MO11, after