N SATHIYAN Vs. G R VAIDYANATHAN

JUDGEMENT

(1.) The petitioner has preferred the revision aggrieved against the order passed by the learned Principal Sessions Judge. Kanyakumari at Nagercoil dismissing the appeal filed by the petitioner in C.S. 56/95 dated 15-2-1996 and confirming the order of Judicial Magistrate. Padmanabhapuram in C.C. No. 482/89 dated 23-7-1990.

(2.) The case in brief for the disposed of the revision is as follows: There was theft in the house of the first respondent arid a complaint was given for the offences under sections 457 and 380 I.P.C. against two accused in Crime No. 725/88 of Thacklay Police station. The first accused is one Edwin Devakumar and the second accused is one. Murugaiah. During investigation on the confession statement given by the accused, the properties were recovered which included gold jewels and entrusted into the court. After investigation, charge sheet was filed and the case was taken on file in C.C. 1088/89 by the trial court. The first accused admitted the offence and he was imposed punishment. The case against the second accused was split up in C.C. 482/89 and during the pendency of the case, the second accused also died and t he case against him abated, There upon, .the first respondent filed on application before the trial court in C.C. 482/89 for return of the gold jewels on the ground that they belong to him. Items 16 to 18 were entrusted to the possession of the first respondent by an order dated 23-7-1990. Later, it appears that the petitioner filed an application before the trial court for the same relief relating to the same properties and on the basis of which, a notice was issued to the first respondent herein to re-deposit the properties into the court on 20-5-1991. After receiving the notice, the first respondent filed levision No. 34/91 before, the Sessions Court. Nagercoil and the direction given by the trial court was set aside. Now, the petitioner filed C.A. 56/95 against the order passed in C.C. 482/89 relating to the properties dated 23-7-1990 and the appeal was dismissed. Aggrieved against this, the petitioner has come forward with the present revision.

(3.) The learned counsel for the petitioner contended that the orders passed by both the courts below arc not proper and correct. The trial court erred in returning the properties to the first respondent on the basis that there is no rival claim. No opportunity or notice was also given to the petitioner before passing the order of return. No enquiry was conducted by the court as to who is entitled to the return of the property. In the absence of regular trial or enquiry with regard to the return of the property by examining witnesses and marking documents, the return order is erroneous. Simply because the prosecution gave no objection, it cannot be allowed automatically. The trial court discharged the petitioner for an offence under section 411 I.P.C. The orders passed by both the courts below are liable to be set aside and suitable direction has to be given to conduct an enquiry under section 452 of the Code of Criminal Procedure.