BRIJ MOHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Only a short question is involved in this appeal that is, whether an order of custody of property in favour of party can be reversed in appeal without giving opportunity to such part of being heard.

(2.) In a criminal case No. 586/74 under sections 447 and 379 I.P.C., the learned Judicial Magistrate, Abu Road convicted the accused Dharma Ram under sections 447 and 379 I.P.C. and sentenced him to under go imprisonment. The learned Magistrate ordered that the grain recovered from the accused and allegedly subject of theft, be given to the custody of the complainant Brij Mohan, the appellant before this Court. Dharma Ram, the accused preferred an appeal against his conviction and sentence before the learned Additional Sessions Judge, Sirohi and Brij Mohan was not a party to that appeal. The learned Additional Sessions Judge, allowed the appeal, acquitted Dharma Ram of the offence under sections 447 and 379 1. P. C. and ordered that the property recovered from accused Dharma Ram be given to him.

(3.) It is not necessary to see for the present as to whether the order of the learned Additional Sessions Judge on merits calls for any interference. Suffice it to say that the principles of audi alteram partem have been violated. Once an order was passed in favour of Brij Mohan by the trial court, if the appellate court thought fit to set aside, then it was necessary for that court to have issued a notice to Brij Mohan and thereafter giving him an opportunity of being heard to have dispose of that matter. It will be proper here to refer to Bachraj Dugar Vs. Narendra Kumar & anr. (1979 Cr. L. J.), 116 relied on by Mr. Joshi learned advocate for the petitioner. It has been held in the aforesaid authority that notice to person likely to be effected by order section 452 Cr, P. C. is a necessity.