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Mohomed Yusuf Vs. Jivkaj Premjibhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR1019
AppellantMohomed Yusuf
RespondentJivkaj Premjibhai and anr.
Cases ReferredDeopujan Mahto v. Kukur Ahir A.I.R.
Excerpt:
- .....even when the party from whose possession the property has been produced in court happens to be an accused person and the order may be passed at the time of the conclusion of the trial or at the time of the judgment after convicting or acquitting the accused. this view is also taken in deopujan mahto v. kukur ahir a.i.r. 1940 patna 198.3. but if the property has been produced in court from the possession of some 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 an accused person or the complainant and unless the order of the disposal of property is passed in the judgment itself. in this case it is true that the order of the disposal of the property has been passed in the judgment but the.....
Judgment:

V.B. Raja, J.

1. This revision application arises out of an order for the disposal of property namely a truck after the completion of a criminal trial passed by the learned J.M.F.C. Bansda and varied by the learned Sessions Judge in appeal. The learned Magistrate convicted the accused for an offence of criminal breach of trust and cheating and 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 person therefore went in appeal to the Sessions Court and the learned Extra Additional Sessions Judge ordered that the truck should be handed over to the third person from whose possession the truck was taken by the police and produced in the Court. The learned Extra Additional Sessions Judge set aside the conviction for criminal breach of trust under Section 406 I.P.Code and confirmed the conviction of the accused for cheating under Section 420 I.P.Code and the disposal of the property namely the truck on the ground that no notice has been given to the person from whose possession the truck was taken and also on the ground that according to the complainant that third person had purchased the truck from the accused on 15-4-1960 about six months before it was taken possession of from him by the police for production in the Court.

That order of the learned Extra Additional Sessions Judge is now challenged in this revision and it is contended that no notice is necessary. It is also contended that the learned Extra Additional Sessions Judge was wrong in going into the question of title and that there is no proper evidence to show that the truck in question belonged to the third person namely Messrs. Hirjibhai Premjibhai. Section 517(1) Cr. P.C. reads as follows:

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 been committed or which has been used for the commission of any offence.

2. At the conclusion of an inquiry or a trial the Court may make such order as it thinks fit for the disposal amongst other things to deliver to any person claiming to be entitled to possession thereof or otherwise of any property produced before it. Admittedly the truck was before the Court and it had been produced from the custody of Hirjibhai Premjibhai having been taken from his possession on 6-10-60. This Hirjibhai is neither the complainant nor the accused. Even according to the complainant he had purchased the truck from the accused on 15-4-60. This is stated in the complaint. Ordinarily a criminal court passing an order under Section 517 Cr. P.C. should not go into the question of the title of property. But if a person reasonably claims to be entitled to possession thereof and if the property has in fact been taken from his possession the properly should be returned to him unless the property is stolen property within the meaning of Section 410 I.P. Code. Section 410 I.P. Code reads as follows:

Property the possession whereof has been transferred by theft or by extortion or by robbery and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is designated as stolen property whether the transfer has been made or the misappropriation or breach of trust has been committed within or without India. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof it then ceases to be stolen property.

It does not apply to property which has changed hands as a result of cheating.

In the instant case the learned Extra Additional Sessions Judge has set aside the conviction for criminal breach of trust and has confirmed the conviction for the offence of cheating. Property which has changed hands as a result of the offence of cheating does not become stolen property and it is open to the person who was cheated to sell the property to somebody else. In any case in view of the fact that the truck was produced in the Court from the custody of Hirjibhai it was not right on the part of the Court to pass orders without hearing him. It is true that Section 517 Criminal Procedure Code does not require notice to be given to the party from whose possession the property has been produced in the Court. Such a notice is not necessary even when the party from whose possession the property has been produced in Court happens to be an accused person and the order may be passed at the time of the conclusion of the trial or at the time of the judgment after convicting or acquitting the accused. This view is also taken in Deopujan Mahto v. Kukur Ahir A.I.R. 1940 Patna 198.

3. But if the property has been produced in Court from the possession of some 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 an accused person or the complainant and unless the order of the disposal of property is passed in the judgment itself. 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 is taken from The possession of Hirjibhai who is neither the complainant nor the accused. In these circumstances the Court should have heard Hirjibhai Premjibhai before passing any order. Apart from this the whole basis of the order passed by the learned Magistrate namely the conviction of the criminal breach of trust does not remain as that conviction has been set aside by the learned Extra Assistant Judge. Section 517 Cr. P.C. also refers to property regarding which any offence appears to have been committed or which has been used for the commission of any offence. These alternatives refer to properties which have not been produced before the Court. If the property has been produced before the Court an order can be passed under Section 517 Cr.P.C. if no offence appears to have been committed in respect of the property. If the property has been produced before the Court the expression property or document produced before it could have been applied and the second expression namely regarding which any offence appears to have been committed or which has been used for the commission of any offence may also apply. But the Court should pass order as it thinks fit for the disposal of the property by destruction confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise. If the property is not ordered to be destroyed or confiscated it should be delivered to the person claiming to be entitled to possession thereof and in particular to the person from whose possession it has been taken. The property can be delivered to some other person if the person from whose possession it has been produced before the Court does not claim to be entitled to possession thereof and somebody else claims to be entitled in possession thereof. But in this case the person from whose possession the property is taken claims to be entitled to possession thereof and even according to he complainant he had purchased the property from the accused on 15-4-60 six month before the date of the complainant and six months before the property was taken from the possession of Hirjibhai. In these circumstances the order passed by the learned extra Assistant Judge is quite correct.

The revision application is therefore dismissed.


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