BARATAM JAGANNATH RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is the informant who lodged the F. I. R. in Koraput Police Station alleging theft of gold ornaments and cash amounting to Rs. 1000/ - from his house on 23 -7 -1978. The Police registered the case under Section 380/457, I, P. C. and in course of investigation, seized M. Os. I to IV from underneath a bush at the instance of the accused and M. O. V. from a jeweller, examined as P. W. 10 in the trial. The learned Subdivisional judicial Magistrate, Koraput, found the accused guilty of the charges and convicted him under Section 380/457, I. P. C. So far as the seized articles are concerned, the learned Subdivisional Judicial Magistrate passed an order in exercise of his jurisdiction under Section 452, Cr. P. C., directing return of M. Os. I to V to the informant after the appeal period was over. The accused preferred an appeal against his conviction and sentence passed by the learned Subdivisional Judicial Magistrate. No appeal was, however, preferred by any person against the direction of the Magistrate regarding the disposal of the seized articles.

(2.) THE learned Sessions Judge on consideration of the evidence acquitted the accused. There after, P. W. 10 who is opposite party No. 2 in the present petition filed an application on 9 -12 -1981 without even serving a copy of the same on the informant before the learned Sessions Judge claiming that he was the owner of M. O. V having purchased the same bona fide and, therefore, the said M. O. V be returned to him. That application was disposed of by the learned Sessions Judge on 14 -12 -1981 and by the impugned order, the learned Sessions Judge directed to hold an enquiry and to find out who was entitled by possession of M. O. V and passed an Order as to its disposal in conformity of Section 452 of the Code of Criminal Procedure. Hence, the present revision.

(3.) THE rival contentions require careful examination. Coming to the first submission of the learned counsel for the petitioner, it appears from the records of the Court that the learned Magistrate after convicting the accused of the offence under Section 380, IPC, passed an order regarding disposal of the property in exercise of his powers under Section 452 of the Code of Criminal Procedure. The learned Magistrate directed that M. Os. I to V be given to the informant. That order is obviously one under Sub -Section (1) of Section 452 of the Code of Criminal Procedure which can be modified or set aside in appeal The fact remains that the Sessions Judge though set aside the order of conviction passed by the learned Magistrate, did not set aside the direction of the Magistrate regarding delivery of M. Os. I to V to the informant. That apart, an order passed under Sub -section (1) of Section 452, Cr. P. C., is appellable under Section 454, Cr. P.C., and under Sub -section (1) of of Section 454, Cr. P. C., any person aggrieved by the order made by a Court under Section 452, Cr. P. C., can appeal against the same If P. W. 10 was really aggrieved by the order, then he should have preferred an appeal as contemplated under Sub - Section (1) of Section 454, Cr. P. C. He having not preferred any appeal is not entitled to invoke the jurisdiction of the Sessions judge by filing a petition after disposal of the criminal appeal in my view, the Sessions Judge has no jurisdiction to entertain the application filed by P. W. 10 before him after disposal of the appeal and, therefore, the impugned order directing an enquiry into the matter at the instance of P. W. 10 must also be held to be bad in law. The contention of the learned counsel for the petitioner on this score must, therefore, be accepted.