MUNSHILAL Vs. SEWARAM

JUDGEMENT

(1.) IN the intervening night of 16th and 17th December 1974, a theft took place in the house of Sewaram, non-applicant No. 1. He promptly lodged a report (Ext p-1) in Police Station, Basoda. The Police of Basoda after recording the first information report, also obtained Ext. P-2, the list of the stolen property. During the course of investigation, applicant Munshilal and non-applicants No. 2 and 3 Ramesh and takhat Singh were arrested. On arrest, the statement of Munshilal, the applicant, was recorded in Ext. P-9 in which he stated that the stolen property consisting of 8 gold mohars, bajjatee, timnee and other ornaments along with other property, was deposited by him with his wife, who was at her father's place. He offered in Ext. P-9 to get the said property recovered. Consequently, the investigating agency recovered these stolen properties vide Ext. P-10. During the course of investigation, these seized ornaments were put up for identification parade and the memo of identification parade is Ext P-3. From Ext. P-3 it is apparent that Sewaram, non-applicant No. 1, and Lal Sahib (PW. 6)identified these stolen properties as that of Sewaram, non-applicant No. 1. After the trial, the trial Court acquitted the applicant and non-applicants Nos. 2 and 3, but directed that the watches recovered from the possession of Munshilal should be confiscated, and the 8 gold mohars, timnee, bajjatee, four items of gold ring, two sarees and ten currency notes of hundred rupee denomination be returned to Munshilal, the applicant. Remaining items of property were directed to be returned to non-applicant no. 1. Being aggrieved by this order of the Magistrate with regard to disposal of the property, the non-appliant No. 1 preferred appeal before the Sessions Court. The sessions Judge set aside the order of the trial Magistrate and directed that the properties, which have been directed to be given to applicant Munshilal, be returned to non-applicant No. 1 Sewaram Aggrieved by this judgment of the Sessions Judge, munshilal, the applicant, has come up before this Court under section 397 of the Code of Criminal Procedure.

(2.) SHRI R. D. Agrawal, learned counsel for the applicant, contended that after acquittal the properties were directed to be given to applicant Munshilal, because they were recovered from his possession, and the impugned judgment is against the provisions of law. Shri Agrawal cited plethora of case-laws, but, unfortunately, they are not on the point and do not concern directly with the question in issue.

(3.) THE impugned judgment of the Sessions Judge could not be assailed to be perverse or illegal by the learned counsel for the applicant. In the impugned judgment facts have been elaborately discussed and have been evaluated according to the principles of law. Inconsistencies in the case of the applicant have been vividly described and the conclusion seems to be based on sound principles of law. This Court in Prakash Chandra vs. Jagdish, A. I. R. 1968 M. P. 270, has observed that ordinarily when no offence has been committed in respect of any property in its custody, the Court should restore it to the person from whose possession it was seized But in exceptional cases where circumstances so warrant and the evidence so indicates that it would be inequitable to restore it to the possession of the person from whom it was seized, the court may in proper exercise of its judicial discretion restore it to the person, who, in its opinion, is the person best entitled to its possession. Even though the accused has been acquitted due to incomplete evidence, it would not be proper exercise of discretion to hand over the property back to the accused, because his confession, though not admissible in criminal trial, would be admissible for the purpose of determining as to who would be the person best entitled to the possession of the seized property. Keeping in view the principles enunciated in this case, it would be relevant to observe that in Ex. P-9, the previous statement of the applicant, recorded during the course of investigation, clearly indicates that the property recovered from the wife of the applicant, was stolen property. For the purpose of disposal of the property, the statement made by the accused to the police during the course of investigation can be used as evidence against him, because such statement is not being used against the accused in any inquiry or tried. Disposal of property is a separate proceeding. At the conclusion of inquiry or trial any admission or confession of fact with regard to seized property made by the accused during investigation can easily be used for determining the question as to in whose favour the order of disposal of the property be passed. Ext P-9, if not a confession, is, admittedly, an admission in law, which indicates that the property described therein does not belong to the applicant, but it is stolen property. The facts contained therein, that is, in Ext P-9, stand further strengthened by perusal of ext. P-10, the seizure memo. Thus, the admission of the applicant led to the discovery of a material fact, and vide Ext P-10, the police recovered the property, which was stolen, according to the admission of the applicant This view of mine is further strengthened by a Single Bench judgment of this Court in Bhagwatiprasad vs. State, 1963 J. L. J. Note 87. Various other reasons, in addition, based upon the finding of fact have been given in the impugned judgment by the Sessions Judge, and I do not think it proper to repeat the same over and again in this order. I express my general agreement with the impugned judgment of the Sessions Court