THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.572 of 2019
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/State represented by Inspector of Police, A.C.B., City Range-1, Hyderabad, challenging the order, dated 01.04.2019, passed in Crl.M.P.No.100 of 2019 in C.C.No.2 of 2011 by the Special Judge under the Prevention of Corruption Act for Speedy Trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc., Nampally, Hyderabad, whereby, the application filed by the Respondent herein/Accused Officer under Section 452 of Cr.P.C. to return the certain items which were seized and deposited before the Court below during the trial of the subject C.C.No.2 of 2011, was allowed and the office of the Court below was directed to return the items to the petitioner on proper identification and acknowledgement, apart from other directions.
2. I have heard the submissions of Sri Ch.Vidya Sagar Rao, learned Standing Counsel-cum-Special Public Prosecutor for A.C.B. appearing for the petitioner/State, Sri Prasad Ravanaboina, learned counsel for the Respondent/Accused Officer and perused the record.
3. Learned Standing Counsel-cum-Special Public Prosecutor for ACB Cases representing the petitioner/State would submit that the 2 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 impugned order of the trial Court is against the facts and law. The impugned order was passed without considering the contentions of the counsel for ACB and also the merits of the case and the impact of returning the properties on the pending appeal filed against the acquittal of the Respondent/Accused Officer. Though the Respondent herein/Accused Officer was acquitted in the subject calendar case, the ACB has addressed a letter to the Principal Secretary, Medical and Health Department, Government of Telangana, seeking permission to prefer an appeal and the response from the Government is awaited and on the said ground, the subject application ought to have been dismissed. The observation of the Court below in the impugned order that no appeal was preferred within the statutory period and therefore it had no option except to return the documents and properties which were seized is incorrect, inasmuch as sufficient proof was placed before the Court below about the decision taken by the Government to prefer an appeal challenging the acquittal of the Respondent herein/Accused Officer and accordingly a letter has been addressed to the Government seeking permission. Under these circumstances, the Court below ought to have waited for some more time so as to facilitate the petitioner herein to inform the Court below about the response from the Government with regard to filing of appeal. The properties which were directed to be returned to the Respondent/Accused Officer are 3 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 very crucial properties and in case the petitioner/State succeeds in the appeal, it would be difficult to the petitioner/State to get back those properties which are liable for confiscation in favour of the State and there is every chance of the Respondent/Accused Officer disposing of the said properties and if the Respondent/Accused officer disposes the properties which were directed to be returned to him by the trial Court, much prejudice would be caused to the petitioner/State in case it succeeds in the appeal. Under these circumstances, the Court below ought not have directed release of properties in favour of the Respondent/Accused Officer. The impugned order of the Court below is ex facie illegal, perverse and is liable to be set aside and accordingly requested this Court to set aside the order under challenge and allow the Criminal Revision Case as prayed for.
4. On the other hand, learned counsel for the Respondent/Accused Officer would submit that the subject calendar case registered against the Respondent/Accused Officer ended in acquittal. Further, no appeal was preferred by the petitioner/State challenging the said acquittal within the statutory period of 90 days. Under these circumstances, the Court below rightly observed that it was left with no other option, except to order return of the properties which was seized during the course of the trial. Further, the Court 4 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 below specifically directed the Respondent/Accused Officer to file an affidavit undertaking to produce the properties before the Court as and when directed. Hence, necessary precaution was taken by the Court below while returning the properties in favour of the Respondent/Accused Officer and as such, the contention of the petitioner/State that prejudice would be caused if the properties are released in favour of the Respondent/Accused Officer is untenable. Section 452 of Cr.P.C. empowers Criminal Court to pass orders regarding disposal, destruction, confiscation or delivery of any property as it thinks fit, when an enquiry or trial is concluded. Further the scope of revision under Section 397 and 401 of Cr.P.C. is very narrow. There is no illegality, impropriety or irregularity in the order under challenge warranting interference of this Court by exercising power under Section 397 and 401 of Cr.P.C. The contentions raised on behalf of the petitioner/State are untenable and ultimately prayed to dismiss the Criminal Revision Case.
5. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows:
"Whether the order, dated 01.04.2019, passed in Crl.M.P.No.100 of 2019 in C.C.No.2 of 2011 by the Special Judge under the Prevention of Corruption Act for Speedy trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare 5 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 Department, etc., Nampally, Hyderabad is suffers from illegality, impropriety or irregularity, warranting interference of this Court in exercise of its revisional jurisdiction under Sections 397 and 401 of Cr.P.C.?"
POINT:-
6. The Respondent/Accused Officer was the sole accused in the subject C.C.No.2 of 2011 on the file of the Court below. He was tried of the offences punishable under Sections 13 (1)(e) read with 13(2) of the Prevention of Corruption Act. The allegations against the Respondent/Accused Officer was that he had accumulated disproportionate assets to a tune of Rs.20,24,534/-. After due trial, the Respondent/Accused Officer was acquitted vide judgment, dated 28.08.2018. At the time of acquittal, the documents and property seized by the prosecution was directed to be returned to him after appeal period is over, if no appeal is preferred. As per Article 114 of the Limitation Act, the appeal period against a judgment of acquittal is 90 days. In the instant case, the period of 90 days elapsed by 26.11.2018, but however, the prosecution did not prefer any appeal within the said period. Subsequently, the Respondent/Accused Officer filed the subject Crl.M.P.No.100 of 2019 under Section 452 of Cr.P.C. to return the seized documents and property. The Court below, vide impugned order, dated 01.04.2019, was pleased to allow 6 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 the said application. The main contention of the learned Standing Counsel-cum-Special Public Prosecutor for ACB Cases representing the petitioner/State is that the prosecution has prepared the appeal grounds and sent to the Head Office on 16.10.2018 and the orders from the Government are awaited and as such, the subject documents and property cannot be returned to the Respondent/Accused Officer. He would also submit that the prosecution has submitted the grounds of appeal to the Government for their remarks and the Director General, ACB, addressed a letter to the Special Chief Secretary to Government, Health, Medical and Family Welfare Department, Government of Telangana, to grant permission to file Criminal Appeal against the Respondent/Accused Officer and so far, the prosecution has not received permission from the concerned authority to file appeal before this Court. It is also submitted that a reminder was also sent to the Government for early orders and as the correspondence is going on, at this juncture the trial Court erred in ordering return of the property to the Respondent/Accused Officer.
7. It is also brought to the notice of this Court that the prosecution filed Criminal Appeal No.288 of 2019 challenging the acquittal of the Respondent/Accused Officer with a delay of 125 days. Nonetheless, learned counsel for the Respondent/Accused Officer 7 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 would submit that in the pending appeal, the prosecution has not filed any application seeking to suspend the impugned judgment of acquittal or the direction not to return the documents and property to the Respondent/Accused Officer.
8. Be that as it is. Section 452 of Cr.P.C. which reads as follows:
452. Order for disposal of property at conclusion of trial:- (1) When an inquiry or 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) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and
459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
A plain reading of the above extracted Section 452 of Cr.P.C. makes it clear that the object and scheme of the said provision is that whether a property, which has been the subject matter of offences, is seized by the police, it must not be retained in the custody of the 8 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 police or Court, unless and until it is absolutely necessary to be kept in the custody of the police or Court. Thus it is clear that unless retaining the case property is absolutely necessary, neither the Court nor the police can retain the same in its custody for any more time after the conclusion of the trial. Further, according to Section 452 of Cr.P.C., the criminal Court has jurisdiction to make appropriate order for the disposal of the case property on conclusion of enquiry or trial. The Criminal Court can also deliver the property to any person claiming to be entitled to the possession thereof, with or without conditions. However, the discretion vested in the Court under this provision has to be exercised judicially and keeping in view the facts and circumstances of the case. Section 452 empowers Criminal Court to pass final orders regarding disposal, destruction, confiscation or delivery, as it thinks fit, when an enquiry or trial is concluded. In the instant case, the Court below after adverting to the submissions made and the facts and circumstances of the case, held that prima facie, the appeal period is over in this case by 28.11.2018; so far this Court has not received any notice from the Appellate Court to show that the prosecution filed any appeal before the Appellate Court against the judgment in the present case; the contents of the counter filed by the prosecution also indicates that the prosecution has submitted the grounds of appeal to the Government for their remarks and the Director General, ACB, Telangana State, Hyderabad, 9 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 addressed a letter to the Special Chief Secretary to Government, Health, Medical and Family Welfare Department, Telangana State, to grant permission to file criminal appeal against the Accused Officer and so far they have not received the permission from the concerned authority to file appeal before this Court; as a matter of fact, the Respondent/Accused Officer is having a right to seek for return of the seized items after the appeal period is over, if no appeal is preferred; in the present case, no appeal is preferred by the prosecution till date; therefore, there is no option for this Court except to return the documents and other properties to the Respondent/Accused Officer which were seized during the investigation, as no appeal is preferred by the prosecution within the stipulated period. This Court is in agreement with the findings recorded by the Court below. Pending of sanction from the Government to prefer an appeal against the acquittal of the accused cannot debar the Criminal Court to exercise Jurisdiction under Section 452 of Cr.P.C. ordering disposal of property at conclusion of trial. Further, there is a specific direction in the impugned order to the Respondent/Accused Officer to file an affidavit by undertaking to produce the items which were returned to him before the Court below as and when directed. Under these circumstances, the Respondent/Accused Officer is bound to produce the items which were returned to him before the Court as and when directed and hence, no prejudice would be caused to the 10 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 petitioner/State if the items are returned to the Respondent/Accused Officer and as such, the apprehension of the petitioner/State that if the properties are returned to the Respondent/Accused Officer there is every chance of the Respondent/Accused Officer disposing them is unsustainable.
9. Further, it is apt to mention here that object of Revisional jurisdiction is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the Court to scrutinize the orders, which, prima facie bear a token of careful consideration and appear to be in accordance with law. Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance of the provisions of law, the findings recorded are based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. A Revisional Court has to confine itself to the legality or propriety of the findings of the Subordinate Court and as to whether the Subordinate Court acted within its jurisdiction. A Revisional Court has no jurisdiction to set aside the findings of facts recorded by the learned Judge and substitute its own findings. Sections 397 and 401 of Cr.P.C. confer only limited power on the Revisional Court to the extent of satisfying about the legality propriety or regularity of the proceedings or orders of the 11 Justice Juvvadi Sridevi Crl.R.C.No.572 of 2019 Subordinate Court and not to act like appellate Court for other purposes, including the recording of new findings of fact on fresh appraisal of evidence. In the instant case, none of the considerations made above do exist in favour of the petitioner/State to vary the decision of the Court below. The order under challenge do not suffer from illegality, impropriety or irregularity warranting interference of this Court by exercising jurisdiction under Sections 397 and 401 of Cr.P.C. None of the contentions raised on behalf of the petitioner/State merit consideration. The Criminal Revision Case is devoid of merit and is liable to be dismissed.
10. Accordingly, the Criminal Revision Case is dismissed confirming the order, dated 01.04.2019 passed in Crl.M.P.No.100 of 2019 in C.C.No.2 of 2011 by the Special Judge under the Prevention of Corruption Act for Speedy trial of the Cases of Embezzlement of Scholarship Amounts in Social Welfare Department, etc., Nampally, Hyderabad.
Miscellaneous applications, if any, pending in this Criminal Revision Case, shall stand closed.
_______________ JUVVADI SRIDEVI, J 28th March, 2023 Ksk