Skip to content


Thampi Chettiar Arjunan Chettiar Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ1158
AppellantThampi Chettiar Arjunan Chettiar
RespondentState and anr.
Cases ReferredIn Sivasankara Pillai v. State of Kerala
Excerpt:
.....the offence, it would not be a proper exercise of discretion to hand over the property back to the accused person or to the person to whom the accused sold the articles after the theft, because the confession that he had stolen the property from the house of the real owner though not admissible in the criminal trial would be admissible for the purpose of determining who would be the person best entitled to the possession of the seized property. as well as in the evidence act. had occasion to consider these aspects and observe that such statements made during investigation and even confessional statements given by accused persons could be relied on as pieces of evidence in a proceeding like this for the purpose of considering and deciding as to who is the person best entitled to..........the offence, it would not be a proper exercise of discretion to hand over the property back to the accused person or to the person to whom the accused sold the articles after the theft, because the confession that he had stolen the property from the house of the real owner though not admissible in the criminal trial would be admissible for the purpose of determining who would be the person best entitled to the possession of the seized property.in this particular case, misappropriation was not proved and the accused was acquitted. m.os.1 to 24 are among the items which were the subject-matter of the alleged misappropriation. both the courts below considered the entire evidence and circumstances bearing in mind the true scope of an enquiry under section 452 of the cr. p.c. the relevant.....
Judgment:
ORDER

S. Padmanabhan, J.

1. The propriety of the order for disposal of property passed by the Judicial I Class Magistrate, Kottarakkara under Section 452 of the Code of Criminal Procedure, after conclusion of trial in CC 53/83 and the confirmation of the same in appeal by the Sessions Judge, Quilon are matters to be considered in these two revision petitions.

2. M.Os. 1 to 3 are gold ornaments. P.W.6 claimed them. M.Os.4 to 24 are household utensils. They were claimed by the accused. The complainant in that case was P.W.2. She claimed all the items. The accused was acquitted. But the Magistrate directed all the items to be given to P. W.2. Against the disposal of M.Os.1 to 3, P.W.6 filed Crl. R.P. 541 of 1984 and the order of disposal of M.Os.4 to 24 was challenged by the accused in Crl. R.P. 536 of 1984.

3. PW.2, the complainant is the wife of the accused. PW. 1 is father of PW.2. Accused married P.W.2 on 18-3-1981. The case of P, Ws. 1 and 2 is that at the time of marriage 24 sovereigns of ornaments including M.Os.1 to 3 were given by P. W. 1 to PW.2 and they were entrusted with the accused. M.Os.4 to 24 are said to be among the items received by PW.2 either as presents or from her house at the time of marriage. They were also alleged to have been entrusted to the accused. The complainant was taken for delivery to her house. It is said that at that time she carried the ornaments also. But subsequently, she returned to the house of the accused and took back the ornaments along with her. They were alleged to have been entrusted to the accused again. Thereafter, on account of estrangement PW.2 had to leave the residence of the accused on 28-3-1982. It is her case that she was able to take her thali alone and other items including M.Os.1 to 24 were with the accused and he misappropriated them. It was on this allegation that she filed a criminal complaint against the accused for an offence punishable under Section 406 of IPC. The accused was acquitted on the finding that the evidence has not established his guilt.

4. Before the Sessions Judge, Quilon P. W.6 challenged the disposal of M.Os.1 to 3 in Crl. A. 9 of 1984 and the accused challenged disposal of M.Os.4 to 24 in Crl. A.4 of 1984. Both the appeals were dismissed.

5. Section 452 of the Code of Criminal Procedure corresponds to old Sections 517 and 518. The proceedings for disposal of property on conclusion of trial is in the nature of quasi-civil proceedings where the question to be considered is only who is best entitled to possession. The purpose of the proceedings is only disposal of property on conclusion of trial. During the enquiry or trial, many items of property may come to the custody of the court. They may be items regarding which offences were committed or which were used for the commission of offences. So also, other items of properties may come to the possession of the court. Questions of title are not matters to be gone into in an enquiry regarding disposal of property. Question of possession and right to possession alone will be considered in the usual course. Ownership and title may be matters for decision by competent civil courts in cases of dispute. An order under Section 452 will never stand in the way of such decision by a competent civil court. In fact a decision under Section 452 will only be subject to such a decision by a competent civil court.

6. The normal rule is that when no offence is proved to have been committed regarding the property or when it is not proved to have been used for commission of offence, the person who produced the articles or from whom the articles were seized will be preferred for restoring possession. It is not necessary that this should be a rule of invariable application. There may be special circumstances brought out in evidence to deviate from this rule. In such cases, the main question to be considered will be as to who is best entitled to possession. It cannot be held as a uniform rule that the person who produced the articles or from whom they were seized is alone entitled to custody under Section 452 in all cases, where the accused happens to be acquitted.

7. The standard of proof required in a criminal case is very high. What is required is reasonable proof beyond the shadows of doubt. All cases may not stand such a test. There may also be cases where the accused may have to be acquitted giving benefit of doubt. Properties may come to the possession of a court being recovered on the basis of confessional statements given by an accused in a theft case. So also, there may be cases in which the accused may be arrested with stolen articles in his possession and he may not be able to explain as to how he came into possession, if it is otherwise than by theft. Likewise, properties may be recovered, from receivers of stolen property on the basis of information conveyed by the accused. In many of these cases, the accused may go free for want of sufficient evidence or on the basis of benefit of doubt. In several cases Of acquittal of the accused there may be evidence or circumstances indicating that he himself or the person from whom the items were recovered is not the person entitled to legal possession and somebody else is the person entitled to possession. Therefore, regarding the disposal of the property, no uniform rule of application can be followed. Each case will have to be decided on its own merits. The Magistrate or the Judge, as the case may be, is having the discretion in the peculiar facts and circumstances of each case to decide as to who is best entitled to possession of the property on the given facts.

8. In Sivasankara Pillai v. State of Kerala, 1972 Ker LT 61, E. K. Moidu, J. had occasion to consider all the relevant decisions concerning this aspect. After evaluating all the relevant decisions, it was observed:

The proceeding under Section 517 is a quasi-civil proceeding which arises on the conclusion of an enquiry or trial in a criminal court for the purpose of disposal of any property ' produced before it or in its custody or regarding which an offence appears to have been committed or which has been used for the commission of the offence. An order under this section only decides the question of possession and not that of ownership or title which has to be decided by a civil court. Ordinarily when no offence has been committed in respect of any property in the court's custody, the Court should restore it to the person from whose possession it was seized. In exceptional cases where circumstances so warrant and the evidence so indicates that it should be inequitable to restore it to the possession of the person from whom it was seized, the court may, in the proper exercise of its judicial discretion, restore it to a person who in its opinion is the person best entitled to its possession. Even though an accused had been acquitted due to the incomplete evidence or due to a bona fide doubt of the commission of the offence, it would not be a proper exercise of discretion to hand over the property back to the accused person or to the person to whom the accused sold the articles after the theft, because the confession that he had stolen the property from the house of the real owner though not admissible in the criminal trial would be admissible for the purpose of determining who would be the person best entitled to the possession of the seized property.

In this particular case, misappropriation was not proved and the accused was acquitted. M.Os.1 to 24 are among the items which were the subject-matter of the alleged misappropriation. Both the courts below considered the entire evidence and circumstances bearing in mind the true scope of an enquiry under Section 452 of the Cr. P.C. The relevant facts and circumstances were taken into account while ordering disposal of properties. No violation of the rules of evidence was committed. So also, the decisions do not indicate commission of any illegality or impropriety in the appreciation of evidence and circumstances in coming to the conclusions. Such being the case, this Court may not be inclined to interfere with the conclusions in revision, even if other conclusions are possible.

9. M.Os. 1 to 3 were pledged by PW.6 with the S.N. Co-operative Bank, Paravoor. Now he claims to be the owner of these items. He says that the order for disposal of M.Os. 1 to 3 was made without notice to him and hence it should be set aside and the matter remanded in Order to enable him to adduce fresh evidence. His contention is that affected parties are entitled to get notice in an enquiry under Section 452 of the Cr. P.C. There cannot be any dispute regarding that proposition of law. But the question is whether he could be considered as a genuine affected party. The circumstances show that he is not. It is true that it was he who pledged M.Os.1 to 3 in the Bank. He had no consistent case. When he was examined as P.W.6, he claimed to be the owner of M.Os.1 to 3 in chief examination. In cross-examination, he said that the actual owner is his brother. He was not able to specify how his brother got these items and how he was entrusted with them. The brother has not so far approached the court claiming the valuable items. There is also no case that the brother claimed the articles at any time from P.W.6.

10. During investigation, the version of P.W. 6 was that it was the accused who entrusted M.Os. 1 to 3 with him for being pledged in the bank on his behalf. That version fits in with the claim of PW. 2. But conveniently, the accused is not claiming those items at present. He is siding with P. W. 6. At least from the date of his examination, P. W. 6 was aware of the fact that M.0s. 1 to 3 are involved in this case. He must have been aware of the fact that the court will be ordering disposal of these items at the conclusion of the trial. Still he has not enquired as to what happened to M.Os. 1 to 3, even at the conclusion of the trial. These are circumstances affecting his bona fides. The conflicting versions given by him indicate that he is not having any bona fide right to possession.

11. Exts. P5 and P6 are portions of the case diary statements of P. W. 6, given during investigation of the criminal case. In those statements, he said that M.Os. 1 to 3 were entrusted to him by the accused for being pledged in the Bank. Admittedly he is a member of that Bank and he does not know whether the accused is a member of that Bank or not. It appears that not being a member of that Bank, the accused might have approached P.W. 6 for pleading the same in the Bank. But P. W. 6 has raised serious objection to the admissibility of the case diary statements in violation of the proviso to Section 162 of the Cr. P.C.

12. When P. W. 6 was examined as a witness in the criminal case, he was confronted with the statements given by him during investigation for the purpose of contradicting him with the statements given by him before court which were against the statements given by him during investigation. This is what is permitted under the proviso to Sub-section (1) of Section 162 of the Code of Criminal Procedure, wherein it is stated that any part of the statement, if duly proved, may be used to contradict such witness. Those contradictions were proved by the investigating officer, who had occasion to record the same. If so, the objection to the admissibility of Exts. P5 and P6 is not available to P. W. 6 even in an extreme case. But in this case that question also will not arise. What Section 162(1) of the Cr. P. C. provides is this:

162. Statements to police not to be signed : Use of statements in evidence - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:xx XX XX

13. Prohibition by. Section 162(1) regarding the use of the statement is for any purpose except as allowed in the proviso, at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. Therefore, by no stretch of imagination, it could be said that the prohibition is applicable to the admission of the statement in the proceedings with which I am now concerned. The proceeding in question is not any enquiry or trial in respect of any offence under investigation at the time when the statement was made. We are now concerned only with the proceedings regarding disposal of property after conclusion of trial. That is not an enquiry or trial in respect of any offence under investigation when the statement was made. Therefore, the prohibition is not applicable and there is no merit in the objection.

14. In order to protect the interest of the accused, who is facing trial certain safeguards are provided in the Cr. P. C. as well as in the Evidence Act. Section 24 onwards of the Evidence Act place some restrictions or prohibitions on the admissibility of confessional statements made by an accused person. So also under the Code of Criminal Procedure, there are certain restrictions regarding the user of the unsigned statements given by witnesses during investigation. These restrictions, which are intended to protect the interests of an accused facing trial, cannot be said to be available to him in other proceedings where those restrictions have no application. For example, in an enquiry under the Commissions of Inquiry Act, the statements given by witnesses during investigation, in a criminal case, may be admissible, without the restrictions being applicable. Even the confessional statements made by an accused person also may be applicable (admissible?) in such cases. In Sivasankara Pillai's case, 1972 Ker LT 61, E. K. Moidu, J. had occasion to consider these aspects and observe that such statements made during investigation and even confessional statements given by accused persons could be relied on as pieces of evidence in a proceeding like this for the purpose of considering and deciding as to who is the person best entitled to possession of the property. Therefore I am of opinion that there is no merit in the objection raised by the accused.

15. Thus PW. 6 had three different versions regarding M.Os. 1 to 3. In Exts. P5 and P6, his case was as if he had nothing to do with them and he was only acting as an agent of the accused in pledging them. In the box, in chief examination, he claimed to be the owner of M.Os. 1 to 3. In cross-examination, he said that M.Os. 1 to 3 belong to his brother and it was the brother who entrusted them to him. These circumstances alone will be sufficient to show that PW. 6 is not having any valid claim for possession over the items. Added to this, he was not able to specify any of the descriptions of M.Os. 1 to 3, when he was questioned in cross-examination. If he was the owner as claimed, he would definitely have been able to specify those details. The case of PWs. 1 and 2 is that these are among the ornaments made by PW. 1 through PW. 10 at the time of the marriage of PW. 2 for being given to her. P. W. 10 has given evidence that these items were among the ornaments manufactured by him at the instance of P. W. 1. Of course, PWs. 1 and 10 made a slight mistake in their evidence regarding the manufacture of M. Os. 1 to 3. But the fact remains that M.Os. 1 to 3 were seized on the basis of the details given by P.W. 1. Even in the first information statement he gave detailed descriptions of all the items of ornaments and vessels and said that they were entrusted to P. W. 2. It is only quite natural that ornaments and utensils are given to a daughter at the time of marriage. It is also natural that after the marriage these items may be entrusted to the husband and the husband may be in possession and custody on behalf of the wife.

16. From the inception P.Ws. 1 and 2 were maintaining that almost all the items contained the names and other details to show that P. W. 2 is the owner. The search list shows that many of the items contained the name of P. W. 2. There is no case that these entries were made after the search. Added to this, it has to be considered that the accused is not claiming any right over M.Os. 1 to 3 and the claim put forward by P.W. 6 prima facie appeared to be incorrect In the circumstances, the conclusion Is Irresistible that accused and P. W. 6 are not persons entitled to possession of M.Os. 1 to 3. All these items were identified by P.Ws. 1 and 2. Both the courts below relied on these facts and circumstances.

17. One of the items among M.Os. 4 to 24 is a briefcase. That is also an item claimed by the accused as belonging to him. But his brother, who was examined as P. W. 8, admitted that the briefcase belongs to P. W. 2. Thus in my opinion the courts below had ample materials for coming to the conclusion that P. W. 2 is the person best entitled to possession of M.Os. 1 to 24 in an enquiry under Section 452 of the Cr. P.C. There is nothing to indicate that there is anything incorrect, illegal or improper in the findings entered by the courts below. They have properly appreciated the evidence and circumstances and in such appreciation they have not violated any of the fundamental rules of evidence. There is nothing on record to show that this Court will be justified in interfering with the concurrent findings in its revisional powers.

18. The revision petitions are, therefore, dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //