PRAHLAD Vs. STATE OF M. P.

JUDGEMENT

(1.) BEING aggrieved by the order dated 14.1.2009 passed by III ASJ, Indore in Criminal Revision No. 374/2008 whereby the order dated 5.5.2008 passed by learned JMFC, Indore in Criminal Case No. 18/2008 whereby the application filed by the petitioner for return of submersible motor pump was dismissed, was maintained, the present petition has been filed.

(2.) SHORT facts of the case are that petitioner was prosecuted for an offence punishable under section 379 of IPC in Criminal Case No. 538/ 2004 and was convicted vide judgment dated 24.7.2007 for an imprisonment of six months and fine of Rs. 500/-. Being aggrieved by the judgment passed by learned JMFC, Indore an appeal was filed by the petitioner which was registered as criminal appeal No. 506/2007 and learned III ASJ, Indore vide judgment dated 12.3.2008 allowed the appeal filed by the petitioner and set-aside the judgment dated 24.7.2007 passed by learned JMFC, Indore holding that the prosecution has failed to prove that petitioner committed offence under section 379 of IPC and learned appellate Court further directed that fine of Rs. 500/- which has been deposited by the petitioner be refunded to the petitioner. Since no observation was made by learned appellate Court relating to the alleged stolen property which is submersible motor pump, therefore, an application was filed by the petitioner before the learned trial Court for return of submersible motor pump. The said application was dismissed by the learned trial Court vide judgment dated 5.5.2008 on the ground that since learned appellate Court has not made any observation in regard to return of submersible motor pump, therefore, no order can be passed by learned trial Court. Against this order revision petition was filed by the petitioner which was registered as 374/2008 and was dismissed by III ASJ, Indore on the ground that against the impugned order dated 5.5.2008 passed by learned JMFC, Indore appeal under section 454 of CrPC is maintainable and the revision petition filed by the petitioner is not maintainable, hence revision petition was dismissed against which the present petition has been filed.

(3.) LEARNED counsel for the petitioner submits that since the order of return of seized article was not final order, therefore, the revision petition was also maintainable. It is also submitted that on technical ground only the revision petition could not have been dismissed. It is submitted that the petition filed by the petitioner be allowed and the impugned order passed by learned Courts below be set-aside and it be directed to return the seized submersible motor pump.