THIRUMALAISAMI ASARI Vs. BAKTHAVATSALAM

JUDGEMENT

(1.) This revision by P. W. 9, is directed against the order passed by the Chief Judicial Magistrate, Madurai in C. A. No. 52 of 1985 filed under Sec. 454 Cr. P.C. reversing the order passed by the Judicial Second Class Magistrate, Palani and directing the return of M. Os. 1 and 2 to first respondent herein.

(2.) M.Os. 1 and 2 are two items of gold jewelry weighing 62 grams, which were involved in C.C. No. 542/82 on the file of the Judicial Second Class Magistrate, Palani. The case had been instituted on a charge-sheet filed by the Police, the second respondent herein, on a complaints given by the first respondent for all offence under Section 379 I.P.C., During the investigation, the M.Os. had been recovered by the Police from the petitioner who was examined as P.W. 9 during trial. The accused in the case had been acquitted on 19-12-1984 and by order dated 31-12-1984 the learned Magistrate had directed return of M.Os. 1 and 2 to the petitioner herein. The first respondent filed C.A. No.36/85 under Section 454 Cr.P.C. before the Sessions Judge, Madurai, who transferred it to the Chief Judicial Magistrate, Madurai, who in turn took it on his file as C. A. No. 52/85. The petitioner was not made a party in the above appeal. After hearing both the respondents who alone were parties in the appeal, the learned Chief Judicial Magistrate allowed the appeal and directed M.Os. 1 and 2 to be returned to the first respondent. Challenging the above order, this revision has been filed by P.W. 9.

(3.) Thiru Jagadeeswaran, learned counsel for the petitioner urged two contentions. According to the learned counsel the learned Sessions Judge ought not to have transferred the appeal under Section 454 Cr. P.C. to the Chief Judicial Magistrate, since it was not in accordance with Section 381 Cr. P.C. and consequently the Chief Judicial Magistrate had no jurisdiction to deal with the appeal and pass orders thereon. The matters therefore, had to be remitted to the sessions Judge to be disposed of by him. The second contention of the learned counsel was that, the petitioner against whom an adverse order has been passed in C.A. No. 52/85 was not made a party in that appeal and had not been heard, which was in violation of the principles of natural justice as also the law laid down by the Supreme Court.