BAL KISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision is directed against an order of the learned Sessions Judge, Balotra dated June 4, 1981 passed in an appeal under Sec. 454, Cr. P. C. relating to the delivery of the property.

(2.) VERY few facts need narration for the disposal of this revision. Kanraj, who is respondent No. 2 in this proceeding, lodged a written report on 17. 8. 75 at police station, Balotra stating therein that in his absence, unknown miscreants renounced the house situate in his town Pachpadara and decamped with gold and silver ornaments and other properties of huge value running in several thous and of rupees. The police took up the investigation and rounded up the burglars with their arides. The major portion of the stolen properties and in original and converted shape were recovered in consequence of the informations furnished by the culprits whilst under police custody. On the completion of investigation, the police presented a charge-sheet against six persons including the revision-petitioners Balkishan and Meghamal. The case was tried by the Munsif and Judicial Magistrate, Balotra. Charges under sections 411 and 414, IPC were framed against them and Kamal Kishore and respondent No. 3 Parasmal. Charges under sections 457 and 380, IPC were framed against Govindlai and Jagdish. On the conclusion of trial, the revision-petitioners and Kamal Kishore were acquitted. The remaining three were convicted and sentenced. The properties which were recovered by the police included one gold ingot weighing 9. 6, tolas and currency notes of Rs. 7,841/. The said ingot was recovered from petitioner Balkishan, while the currency notes of Rs. 7,841/- were recovered from accused Parasmal (convicted and sentenced ). The Munsif and Judicial Magistrate held that the aforesaid gold nugget was not proved to be the stolen property. He further held that the currency notes of Rs. 7,841/- which were recovered from accused Parasmal belonged to the revision-petitioner Meghamal, which he had paid to Parasmal as the price of another gold nugget weighing 13 tolas. The Magistrate, therefore, passed an order that the gold nugget weighing 9. 6 tolas be returned to revision-petitioner Balkishan and the currency notes of Rs. 7,841/- be returned to the other revision-petitioner Meghamal. Aggrieved against this order of the Magistrate, Kanmal filed an appeal under Sec. 454, Cr. P. C. In appeal the learned Sessions Judge reversed the above part of the order of the Magistrate and directed the delivery of the said properties i. e. gold nugget weighing 9. 6 tolas and currency notes of Rs. 7, 841/- to respondent Kanmal. Dis-satisfied with this order of the learned Sessions Judge dated June 4, 1981, Balkishan and Meghamal have rushed up in revision.

(3.) IN addition to the two authorities of this Court referred to above, there are decisions of the other High Courts in which it has been held that the statement made during investigation can be used in proceeding under sections 517 and 523, Cr. P. C. (now sections 452 and 457 of the New Code) and also subsequent for civil suits. IN Pohlu vs. Emperor (3), it was held that the confessional statement of the accused could be properly used for the purposes of Sec. 517 to determine (1) whether the property is property regarding which an offence appears to have been committed and, (2) for determining the person to whose custody, it should to delivered. The same view was expressed in Queen Empress vs. Tribhuvan Manekchand (4 ). The view adopted in the aforesaid two decisions was followed in Prakash vs. Jagdish (5 ). IN Dhanraj Baldeokishan's case (Supra), the view taken in the above three authorities was approved and it was observed: - "that being so, I am clearly of opinion that these entire statements including those parts which might not have been admissible at the trial of the accused whether under sec. 25 of the Evidence Act or sec. 162 of the Code of Criminal Procedure were perfectly good material for the purpose of sec. 517, Cr. P. C. IN other words, we have it from the accused himself that those monies had been realised by him from the sale of the stolen commodities which undoubtedly belonged to the complainants. " IN Mst. Bhuti's case (Supra), it was laid down: - "thus the use of statements recorded during investigation is barred during an enquiry or trial relating to the offence under investigation when such statement was made. But an order for disposal of property is passed after the conclusion of an enquiry or trial as the opening words of sec. 517 show and so sec. 162 cannot be a bar for using those statements in such proceedings where the question of right of possession of the property is only looked into by the court and not of its owner-ship. "