PRAKASH HALDANKAR Vs. BILL CARNEIRO

JUDGEMENT

(1.) RULE. By consent heard forthwith.

(2.) AN order of the District and Sessions Judge, Panaji in Criminal Appeal No. 5/96 dated 6-6-1996 is challenged in this revision. The said order under revision, arises out of an order passed by the Judicial Magistrate, First Class, Mapusa in Criminal Case No. 243/95/a, dated 31-1-1996. In that judgment of the learned Magistrate, the accused in that case was charged under Section 380, I. P. C. for having committed an offence of theft between 20th October, 1995 at 19. 00 hours to 24th October, 1996 at 6. 30 hours at Saligao. The accused is alleged to have committed theft of gold bangle, weighing 20 grams, worth Rs. 8,000/- from the jewelry box of his father, defacto complainant, PW 2. At the end of the trial, the learned Magistrate has passed an order convicting the accused under Section 380, I. P. C. and sentenced him to undergo 2 months R. I. and to pay a fine of Rs. 1,000/- in default to undergo another one month S. I. 2a. While convicting the accused, the learned Magistrate has disposed of the stolen property by an order purported to have been passed under Section 452 of the Cr. P. C. whereby he has ordered the return of melted gold M. O. 1 to PW 7, the revision-petitioner herein, who has purchased bona fide the said gold bangle for valuable consideration in the usual course of his business and converted the same into melted gold and was produced before the police. The other articles have been ordered to return to PW 2. Against the order of disposal of the property M. O. 1 by the Magistrate as aforesaid, PW 2 filed an appeal before the District and Sessions Judge, Panaji. The appellate Court set aside the order passed by the Magistrate and ordered that M. O. 1 melted gold should be returned to Mrs. Lela Sebnis, PW 5, who is none other than the daughter of PW 2, on executing a bond before the Lower Court to produce M. O. 1 or its gold equivalent if and when ordered by the Court, during the period of one year.

(3.) LEARNED Counsel for the petitioner Mr. Lotlikar has submitted that the Lower Appellate Court has committed a serious miscarriage of justice in setting aside the order of the Magistrate. He submits that the Lower Appellate Court has not properly construed the provisions of Section 452, particularly Sub-Section (2) of the said Section. He submits that the Lower Appellate Court has, without any justification not followed the dictum laid down in the decision of this Court in AIR 1918 Bom 215 : (1918 (19) Cri LJ 721 ). He submits that following this decision, the order of the learned Magistrate is not liable to be set aside. He also submits that the Lower Appellate Court has passed the order discarding another decision of the Gujarat High Court in the case of Kanchanlal Somalal Chokshi v. The State, 1963 (2) Cri LJ 262 (2) : (AIR 1963 Guj 223 ). He further submits that the learned Sessions Judge ordered to deliver the articles to a person other than that applied for.