NATVARLAL DAMODARDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Before the Court of the Judicial Magistrate First Class at Vijapur one Hasmukhlal Dashrathlal the accused No. 1 and two others were charge-sheeted by the police for committing theft of silver ornaments etc. valued at Rs. 3979-75 nP. from the shop of Nagindas Gokaldas at Vijapur on the night of 19-7-66. During the course of the investigation of that case articles Nos. 58 59 and 60 were attached by the investigating officer on 30-7-66 from the possession of Natvarlal Damodar of Galemandi in the presence of the panchas. The first two articles were the silver pats each weighing about 4 kilos and 635 grams. The third article consisted of silver gilted copper wire weighing about 4 kilos and 660 grams That formed the part of the muddamal property before the Court when the trial took place before the learned Magistrate. In that case this Natvarlal Damodar the applicant before this Court was examined as a witness. After considering the effect of the evidence adduced in that case while accused Nos. 2 and 3 came to be acquitted the accused No. 1 was convicted any sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs 200/- or in default to suffer further rigorous imprisonment for one month for an offence under sec. 411 of the Indian Penal Code. He was however acquitted in respect of the offences under secs. 457 and 380 of the Indian Penal Code. At the same time the learned Magistrate passed an order in respect of the muddamal property before the Court in that case. The silver pats articles 58 and 59 along with some other articles were directed to be handed over to the complainant Nagindas Gokaldas from whose shop the theft of silver articles etc. had taken place. Some other articles before the Court which included the silver gilted copper wires-article 60 were directed to be confiscated to the State. In respect of the other muddamal he directed the same to be returned from whom that was seized. That order was passed on 20-1-67 by Mr. S. G. Bhatt Judicial Magistrate First Class Vijapur. That Natvarlal Damodar of Galemandi has filed the present application in revision against that part of the order which relates to the muddamal articles 58 59 and 60 which were taken possession of by the investigating officer from him. According to him they belong to him and that the learned Magistrate was wrong in directing the silver puts to be banded over to the complainant Nagindas as also in confiscating the silver gilted copper wires to the State under sec. 517 of the Criminal Procedure Code

(2.) Now the contention made out by Mr. Patel was that the learned Magistrate ought to have returned the said property to the applicant as the same was attached from his possession and more particularly as that belonged to him and not shown to be the stolen property so as to return to the complainant. At any rate if necessary an inquiry should have been held before passing any such order under sec. 517 of the Criminal Procedure Code after giving intimation about the same to the applicant so as to enable him to substantiate his claim. On the other hand it was urged by Mr. Sheth the learned advocate for the complainant in whose favour the order has been passed by the learned Magistrate with regard to the return of the property that having regard to sec. 517 of the Criminal Procedure Code the applicant must have made a claim in respect of that property before the Court at the time when the order was being passed by the Court and that it was in no way necessary for the Court to issue notice to any such person. He also urged that sec. 517 of the Code nowhere contemplates issuing of any such notice to a third party and according to him as the property was taken from his possession it was up to him to make a claim in respect thereof before the Court so that his claim can be considered on its own merits while passing the order of disposal at the conclusion of the trial under sec. 517 of the Criminal Procedure Code.

(3.) Now sub-sec. (1) of sec. 517 provides as under:-