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Natvarlal Damodardas Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR361
AppellantNatvarlal Damodardas
RespondentThe State of Gujarat and anr.
Cases ReferredMohmad Yusuf v. Jivraj Premibhai and State of Gujarat I.L.R.
Excerpt:
- - before holding any such inquiry, it would be perfectly legitimate of any such applicant to claim a notice and it is after hearing him that the final order in that can be passed under section 517(1) of the criminal procedure code. 1019) a similar question bad arisen......formed the part of the muddamal property before the court when the trial took place before the learned magistrate. in that case, this natvarlal damodar, the applicant before this court, was examined as a witness. after considering the effect of the evidence adduced in that case, while accused nos. 2 and 3 came to be acquitted, the accused no. 1 was convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of rs. 200/-, or, in default, to suffer further rigorous imprisonment for one month for an offence under section 411 of the indian penal code. he was, however, acquitted in respect of the offences under sections 457 and 380 of the indian penal code. at the same time, the learned magistrate passed an order in respect of the muddamal property before the.....
Judgment:

N.G. Shelat, J.

1. Before the Court of the Judicial Magistrate, First Class at Vijapur, one Hasmukhlal Dashrathlal the accused No. 1 and two others were charge-sheeted by the police for committing theft of silver ornaments etc. valued at Rs. 3979-75 nP. from the shop of Nagindas Gokaldas at Vijapur on the night of 19-7-66. During the course of the investigation of that case, articles Nos. 58, 59 and 60 were attached by the investigating officer on 30-7-66 from the possession of Natvarlal Damodar of Galemandi in the presence of the panchas. The first two articles were the silver pats, each weighing about 4 kilos and 635 grams. The third article consisted of silver gilted copper wire weighing about 4 kilos and 660 grams. That formed the part of the muddamal property before the Court when the trial took place before the learned Magistrate. In that case, this Natvarlal Damodar, the applicant before this Court, was examined as a witness. After considering the effect of the evidence adduced in that case, while accused Nos. 2 and 3 came to be acquitted, the accused No. 1 was convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs. 200/-, or, in default, to suffer further rigorous imprisonment for one month for an offence under Section 411 of the Indian Penal Code. He was, however, acquitted in respect of the offences under Sections 457 and 380 of the Indian Penal Code. At the same time, the learned Magistrate passed an order in respect of the muddamal property before the Court in that case. The silver pats Articles 58 and 59 along with some other articles were directed to be banded over to the complainant Nagindas Gokaldas from whose shop the theft of silver articles etc. had taken place. Some other articles before the Court which included the silver gilted copper wires-Article 60 were directed to be confiscated to the State. In respect of the other muddamal, he directed the same to be returned from whom that was seized. That order was passed on 20-1-67 by Mr. S.G. Bhatt, Judicial Magistrate, First Class, Vijapur. That Natvarlal Damodar of Galemandi has filed the present application in revision against that part of the order which relates to the muddamal Articles 58, 59 and 60 which were taken possession of by the investigating officer from him. According to him, they belong to him and that the learned Magistrate was wrong in directing the silver pats to be banded over to the complainant Nagindas as also in confiscating the silver gilted copper wires to the State, under Section 517 of the Criminal Procedure Code.

2. Now the contention made out by Mr. Patel was that the learned Magistrate ought to have returned the said property to the applicant as the same was attached from his possession, and more particularly as that belonged to him and not shown to be the stolen property so as to return to the complainant. At any rate, if necessary, an inquiry should have been held before passing any such order under Section 517 of the Criminal Procedure Code, after giving intimation about the same to the applicant, so as to enable him to substantiate his claim. On the other hand, it was urged by Mr. Sheth, the learned advocate for the complainant in whose favour the order has been passed by the learned Magistrate with regard to the return of the property, that having regard to Section 517 of the Criminal Procedure Code, the applicant must have made a claim in respect of that property before the Court, at the time when the order was being passed by the Court and that it was in no way necessary for the Court to issue notice to any such person. He also urged that Section 517 of the Code nowhere contemplates issuing of any such notice to a third party, and according to him, as the property was taken from his possession it was up to him to make a claim in respect thereof before the Court so that his claim can be considered on its own merits while passing the order of disposal at the conclusion of the trial, under Section 517 of the Criminal Procedure Code.

3. Now Sub-section (1) of Section 517 provides as under:

517. (1) When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have committed, or which has been used for the commission of any offence.

The emphasis was laid on the words 'any person claiming to be entitled to possession thereof, to say that the applicant must have made a claim over the same, and that too at the conclusion of the inquiry or trial so that the Court in its discretion can pass suitable order for disposal of any such property before it. Now it involves no difficulty when the claim to (hat property before Court is made either by the complainant or the accused in the case, as both are supposed to be in the know of the conclusion of the trial or inquiry as the case may be. The Court can consider their claims on the basis of evidence already before him In that case. But the difficulty arises when any third party-be he a witness examined in the case or not-claims the same. The words 'any person claiming to be entitled to possession thereof do contemplate a claim to the property having been made before the Court. That land's support from a decision in the case of Budhulal Harnarayan Agarwal v. Sukhman 43 Cr.LJ. 698, relied upon by the learned advocate for the respondent No. 2 the original complainant in the case. It can be said, however, that unless claim or right to possession was made by him while giving his evidence or about his having asked for an opportunity being given to prove his claim on the same, the Court may not be so strictly required to take notice of his any supposed claim. But where any such claim was before the Court, it would be the duty of the Court to consider the same and after hearing him pass any suitable orders in relation to any such property under Section 517 of the Criminal Procedure Code.

4. But on a perusal of the unexhibited miscellaneous papers in the file of this case, we find an application made by this petitioner wherein he had inter alia stated that the said property was attached from his possession by the investigating officer Mr. Sharma on 30-7-66 and that he has supplied him with all the material evidence relating to his ownership in respect thereof. He has then stated that the said property which has been taken possession of from his custody may be handed over to him on taking suitable security and on condition to produce the same at any time required by the Court. That application is at page 39 of the case-papers. A copy thereof was sent to the Police Sub-Inspector, Vijapur. That has been at page 302 of the case-papers. The endorsement made by the P.S.I. Vijapur thereon shows that till the case is decided, the said property which forms the part of muddamal in the case should not be handed over to him. Below that endorsement, appears to be an endorsement made by the learned Magistrate on 19-8-66 saying that the applicant may be informed about the opinion given by him. He was accordingly informed on 16-9-66. The same was then forwarded back to the Court of the Magistrate on 29-9-66. In other words, the Court probably agreed with the opinion of the investigating officer in the case that no orders for return of the property to the applicant should be passed during the pendency of the trial. The order under Section 517 of the Criminal Procedure Code has to be passed at the conclusion of the trial and at that stage the learned Magistrate did neither issue any notice to this claimant, nor made any inquiry in that regard, and passed an order directing Articles 58 and 59 to be handed over to the complainant and Article 60 to be confiscated to the State. It was, however, urged by Mr. Sheth that this application was during the pendency of the case and that he should have made a claim that he was entitled to get back the property at the time when the trial came to an end so as to enable the learned Magistrate to make an inquiry in that regard. Since the application already referred to hereabove dated 17-8-66 made by this applicant was before the Court, the Court knew or at any rate is expected to know that there was a claim in respect of certain muddamal property in respect of which an order under Section 517 of the Criminal Procedure Code would be passed. That application can be said to be alive till the end of the trial. The applicant claimant was not a party to the proceeding as such and consequently he was entitled to be heard before the Court were to pass any order in respect of that muddamal property which he had chosen to claim in his application dated 17-8-66. It was the duty of the Court to consider this application pending along with the case that was being heard by him and while passing the final order in regard to the disposal of the muddamal property, he should have made some inquiry in relation thereto. Before holding any such inquiry, it would be perfectly legitimate of any such applicant to claim a notice and it is after hearing him that the final order in that can be passed under Section 517(1) of the Criminal Procedure Code. No fresh application was necessary at the time when the actual order came to be passed. The application was before the Court, as I said, till last and the learned Magistrate appears to have lost sight of that. When such an application was there, it can be said to be of a person claiming to be entitled to the possession thereof as contemplated under Section 517(1) of the Criminal Procedure Code.

5. In the case of Mohmad Yusuf v. Jivraj Premibhai and State of Gujarat I.L.R. 1963 Gujarat 1002 (IV G.L.R. 1019) a similar question bad arisen. While convicting the accused for an offence of criminal breach of trust and cheating, the learned Magistrate ordered that the truck in respect of which the offence was committed should be returned to the complainant although it was taken from the possession of a third party. That third party, therefore, went in appeal to the Sessions Court and the learned Extra Additional Sessions Judge who heard the same, ordered that the truck should be handed over to the third person from whose possession the truck was taken and produced in the Court. Against that order, an application in revision was filed in this Court and one of the contentions was that no notice was necessary. This Court considered that aspect of the matter and observed that if the property has been produced in Court from the possession of some one, the Court should not pass an order directing the property to be returned to somebody else without giving a notice to that person unless he happens to be the accused person or the complainant and unless the order of the disposal of property is passed in the judgment itself. Then it has observed that in this case it is true that the order of the disposal of the property has been passed in the judgment, but the order of disposal passed is one in which possession is ordered to be delivered to some one else. The truck was taken from the possession of Hirjibhai, who was neither the complainant nor the accused. It was in those circumstances that it was held that the Court should have given him an opportunity to be heard before passing any order. In other words, when the claimant is some one else and neither the complainant nor the accused, that third party from whose possession any such property is attached by the police during the investigation of the case, has got to be heard before passing any order under Section 517 of the Criminal Procedure Code. Once he is required to be heard, the Court has no alternative but to issue a notice to any such person claiming the same, as he is neither the complainant nor the accused in the case, so as to enable him to substantiate his claim in regard to that property before any final order is passed under Section 517(1) of the Code. Issuing of a notice or giving Intimation by the Court in that regard can be taken as implicit in the provision, for without It, the person claiming the same may not be able to know when the trial came to an end and the order passed in respect of the muddamal property before the Court. No express words to that effect are essential to be there in that provision as urged by Mr. Sheth.

6. With respect, I agree with the observations made in the judgment, and hold that part of the order which affects the application in regard to the claim of Articles 58, 59 and 60 is liable to be set aside. The learned Magistrate shall, therefore, issue notice to the claimant-applicant as also the complainant and if necessary, to the accused in the case and after holding an inquiry pass suitable orders in regard to the property under Section 517(1) of the Criminal Procedure Code. The final order of disposal of the property may, in those circumstances, wait for some time till that inquiry is made, and it is not absolutely essential to have it passed simultaneously with the final order in the case, where any such claim of a third party is required to be determined.

7. In the result, therefore, the order passed by the learned Magistrate with regard to the disposal of property consisting of muddamal Articles 58, 59 and 60 which have been chimed by the applicant is set aside. The learned Magistrate shall issue notices to the claimant-applicant as also the complainant Nagindas Gokaldas, and if necessary, to the accused and then hold an inquiry in accordance with law before passing final order under Section 517(1) of the Criminal Procedure Code.


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