property as belonging to them. The wife of the petitioner, to whom the
ornaments in question were belonging, was not examined as a witness
during the trial. The identity of the property, as the same that was
robbed, was not established during the trial and as such the order of
acquittal was proper and legal. However, the respondent Nos. 2 and 3
were also not examined as witnesses during the trial. Their stand, viz.
as to whether the property produced before the Court had been
recovered from them and further whether that property had been
purchased by any of them from accused No. 1 or any other accused, was
also not ascertained during the trial. In such a case, instead of passing
an order of return of property to the respondent Nos. 2 and 3, the
learned Magistrate ought to have held an inquiry for the limited purpose
of the disposal of property. The persons to whom the property was
directed to be returned, viz. the respondent Nos. 2 and 3, had not at all
appeared before the Court and had not made any claim that the gold
that was produced as stolen property, was actually belonging to them or
that it had been recovered by the investigating agency from them. In
the context of the claim of the petitioner, it was also necessary to
ascertain as to from whom the respondent Nos. 2 and 3 had obtained
the property and whether it had been obtained by them from the
accused No. 1 or anybody else and under what circumstances. It was
also necessary to ascertain as to the circumstances in which the property
came to the investigating agency and under what circumstances,if at all,
it was parted with by the respondent Nos. 2 and 3 without any protest.
8. Thus, this was a fit case where the learned Magistrate ought
to have held an inquiry for the disposal of the property.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 998 OF 2010
Anandi Roy S/o Dilipkumar Roy
V
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
DATE OF JUDGMENT : 28/08/2013
Citation; 2013 ALL M R(cri)3898
1. Rule. By consent, Rule made returnable forthwith. The
respondents waive service. By consent, heard finally forthwith.
2. The petitioner had lodged a report with Osmanpura Police
Station, Aurangabad alleging commission of offences punishable under
sections 454 and 380 of the Indian Penal Code by unknown persons. It
was reported that, theft in respect of the gold ornaments and cash
belonging to the first informant and his wife, totally valued at `
89,300/ [ Rupees Eighty Nine Thousand Three Hundred only ] had
been committed by some unknown offenders. The investigation
commenced and three (3) persons came to be prosecuted in respect of
the said offences. The trial held by the Judicial Magistrate First Class,
Aurangabad resulted in the acquittal of all the accused persons. In the
course of investigation, the stolen property was, allegedly, recovered by
the investigating agency and this property was produced before the
Court during trial. At the conclusion of the trial, the learned Magistrate
passed an order directing the property to be returned to the respondent
Nos. 2 and 3 herein, who are goldsmiths and from whom, according to
the investigating agency, the said property had been recovered.
Aggrieved by the order passed by the learned Magistrate with respect to
the return of the property to the respondent Nos. 2 and 3, the petitioner
herein approached the Court of Sessions by filing a revision application.
The revision application came to be dismissed by an order dated
30/10/2009. The petitioner has now approached this Court invoking its
constitutional jurisdiction and praying that the order passed by the
learned Magistrate be set aside to the extent of the disposal of property
and the order passed by the Sessions Judge in revision be also set aside
and that the muddemal property be directed to be given to the
petitioner.
3. I have heard Mr. M.D.Narwadkar, the learned counsel for
the petitioner, Smt. S.D.Shelke, the learned A.P.P. for the State and Mr.
S.J.Gaike, the learned counsel for the respondent Nos. 2 and 3.
4. It is clear that the property that was stolen, consisted of
gold ornaments and cash of ` 6,000/ [ Rupees Six Thousand only ].
The gold ornaments were belonging to the present petitioner. The case
of the investigating agency was that, pursuant to the disclosure
statement made by accused No. 1 Ayya Khan, part of the robbed
property came to be recovered from respondent No. 2 herein and part
thereof came to be recovered from respondent No. 3 herein.
Interestingly, what was recovered, is, admittedly not in the same form
in which it was stolen. What was recovered, was in the form of ingots.
The case of the investigating agency was that, the ingots were prepared
after melting the stolen gold ornaments. The fact, therefore, remains
that the property recovered was, admittedly, not in the form in which it
was stolen.
5. Since the learned Magistrate came to the conclusion that
the case against the accused persons was not proved and since he passed
an order of acquittal, he was of the view that the property should be
returned to the persons from whose possession the same had been
seized. Ordinarily, this would be the correct approach to be adopted in
the matters of this type. But, in the instant case, there are some aspects
of the matter, which are relevant and which were not taken into
consideration by the learned Magistrate.
6. It may be observed that the revision filed before the Court
of Sessions, against the order passed by the Magistrate, was not
maintainable. The order passed by the Magistrate was one falling U/s
452 of the Code of Criminal Procedure [ For short, ' Code ' ], from which
order an Appeal is provided for U/s 454 of the Code. In sub section (4)
of Section 401 of the Code, it has been laid down that no proceedings by
way of revision shall be entertained at the instance of the party who could
have appealed. Thus, the learned Sessions Judge ought to have treated
the revision application as an Appeal and ought to have dealt with the
matter accordingly.
7. It appears that the accused persons had not claimed the
property as belonging to them. The wife of the petitioner, to whom the
ornaments in question were belonging, was not examined as a witness
during the trial. The identity of the property, as the same that was
robbed, was not established during the trial and as such the order of
acquittal was proper and legal. However, the respondent Nos. 2 and 3
were also not examined as witnesses during the trial. Their stand, viz.
as to whether the property produced before the Court had been
recovered from them and further whether that property had been
purchased by any of them from accused No. 1 or any other accused, was
also not ascertained during the trial. In such a case, instead of passing
an order of return of property to the respondent Nos. 2 and 3, the
learned Magistrate ought to have held an inquiry for the limited purpose
of the disposal of property. The persons to whom the property was
directed to be returned, viz. the respondent Nos. 2 and 3, had not at all
appeared before the Court and had not made any claim that the gold
that was produced as stolen property, was actually belonging to them or
that it had been recovered by the investigating agency from them. In
the context of the claim of the petitioner, it was also necessary to
ascertain as to from whom the respondent Nos. 2 and 3 had obtained
the property and whether it had been obtained by them from the
accused No. 1 or anybody else and under what circumstances. It was
also necessary to ascertain as to the circumstances in which the property
came to the investigating agency and under what circumstances,if at all,
it was parted with by the respondent Nos. 2 and 3 without any protest.
8. Thus, this was a fit case where the learned Magistrate ought
to have held an inquiry for the disposal of the property. The learned
Sessions Judge also while dismissing the revision, observed that the
Magistrate ought to have given some opportunity to the petitioner or his
wife, but was of the view that absence of giving such opportunity was
not an irregularity, which would vitiate the proceedings in respect of the
disposal of the property.
9. I am of the view that the matter has not been considered in
proper perspective either by the learned Magistrate or by the learned
Sessions Judge. This was a case where, though as per the case of
prosecution, the property had been recovered from the respondent Nos.
2 and 3, it was also the prosecution case that it was stolen property.
The persons to whom the property was directed to be returned, had
never claimed that it had been recovered from their possession.
Therefore, there was no sufficient material before the Court to decide
the question of disposal of the property in a satisfactory manner, and
under these circumstances, the decision with regard to the disposal of
the property ought to have been done after holding due inquiry by
recording evidence on that aspect.
10. Since the impugned orders suffer from a patent error of
law, which has resulted in miscarriage of justice, the constitutional
jurisdiction of this Court is required to be invoked to set things right.
11. The Writ Petition is partly allowed. The impugned orders
are set aside.
12. The matter is remanded back to the learned Magistrate,
who shall hold an inquiry into the matter and then decide the question
of handing over of the custody of the property in question to any party,
who, it may appear to the learned Magistrate, to be entitled for the
possession thereof.
13. The Writ Petition is disposed of accordingly. Rule is made
absolute in the aforesaid terms.
[ ABHAY M. THIPSAY, J. ]
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