(1.) 1. RULE. Mr. M. R. Mengdey, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondents. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing today. By way of this revision application, the petitioner - original complainant has prayed for an appropriate order to quash and set side the order dtd. 2/7/2008 passed passed by the learned Additional Judicial Magistrate, First Class, Ahmedabad Rural at Mirzapur in Criminal Misc. Application No. 137 of 2008, by which the learned trial court has rejected the application submitted by the petitioner submitted under sec. 451 of the Code of Criminal Procedure for handing over muddamal articles / ornaments which were stolen from the petitioner - complainant. The petitioner is the original complainant who has lodge the First Information Report being CR No. I-14 of 2008 with Sarkhej Police Station for the offences punishable under secs. 395 and 397 of Indian Penal Code. That during the course of the investigation the investigating officer investigating officer seized muddamal articles i. e. Silver ornaments weighing 1. 9 kg. , cash of Rs. 42,635 and one gold ring weighing 5. 200 milligram from the accused. As per the complainant - petitioner as stated in the complainant the accused persons have looted 10 Gold ring weighing 50 grams worth Rs. 50,000, 3 Gold Chain weighing 25 grams worth Rs. 25,000 and Silver ornaments 2. 1/2 kg. Worth Rs. 50,000=00.
(2.) THAT as per the First Information Report, in the aforesaid incident, the petitioner, mother and wife of the petitioner have received serious injuries for which they were hospitalised in Bopal Multi Speciality Hospital, Ahmedabad. As per the petitioner, the petitioner received serious injuries on head and the First Information Report was recorded in the hospital and since three family members were injured, the petitioner could not inform the police about the loot of the aforesaid articles in the incident, but subsequently the petitioner informed the Sarkhej Police Station that the accused persons have also looted gold weighing about 659. 970 grams silver weighing about 1. 3 kg and cash of Rs. 1,41,825 apart from what is stated in the First Information Report. That thereafter the investigation, chargesheet was filed and therefore, the petitioner preferred an application before the learned Judicial Magistrate, First Class, under sec. 451 read with sec. 457 of the Code of Criminal Procedure for obtaining the muddamal articles / ornaments recovered during the course of investigation. The report of the investigation officer was called for and it appears that the same was also in favour of the petitioner. However, the learned trial court rejected the said application submitted by the petitioner by impugned order dtd. 2/7/2008 observing that from the bills and description produced by the complainant, it cannot be said that the muddamal recovered during the course of investigation, is that of the complainant and unless and until evidence is recorded, the muddamal articles cannot be handed over to the petitioner - original complainant. Being aggrieved by and dissatisfied with the aforesaid order , the petitioner - original complainant has preferred present Criminal Revision Application.
(3.) MR. SUDHANSHU Patel, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned trial court has materially erred in rejecting the application submitted by the petitioner in not handing over the muddamal articles / ornaments. It is submitted that on imposing certain conditions inclusive of condition to produce proper securities of the like amount of the muddamal, the muddamal articles ought to have been handed over to the petitioner - original complainant. He has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Sundarbhai Ambalal Desai Vs. State of Gujarat, reported in 2002 AIR SCW 5301 : 2003 (1) GLH 307 S. C. It is submitted that the learned trial court has rejected the application submitted by the petitioner observing that the other co-accused have absconded from the custody and therefore, whether they are claiming the muddamal or not, cannot be considered at this stage and nothing is on record whether those accused have any objection against the application of the petitioner or not. It is submitted that it is an admitted position that till date nobody has claimed ownership and/or custody of the muddamal. It is submitted that merely because the accused have absconded and their no objection is not on record, the application of the petitioner for handing over muddamal cannot be rejected. It is submitted that because the other accused have absconded, the petitioner should not be punished. It is submitted that the petitioner is ready and willing to abide by any condition that may be imposed by this Court while ordering for handing over the muddamal articles / ornaments to the petitioner. Submitting accordingly it is requested to allow the present Revision Application. Mr. M. R. Mengdey, learned Additional Public Prosecutor has submitted that as the no objection from the other accused is not on record and the application of the petitioner for handing over muddamal articles/ornaments is rightly rejected by the trial court. However, he has fairly conceded that in fact the investigating officer has submitted his no objection before the trial court stating that he has no objection if the muddamal articles / ornaments are handed over to the petitioner on imposing certain condition of furnishing security of the value of the muddamal articles.