Bombay High Court
Vishnudas Jagatmal Sainani vs The State Of Maharashtra on 27 November, 2017
Bench: S.S. Shinde
(1) cri.appeal 505.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 505 OF 2017
Vishnudas Jagatmal Sainani
Age : 53 years, Occ. Business,
R/o Near Tamboli Jin, Amalner,
Taluka Amalner, District Jalgaon. ... Appellant
Versus
The State of Maharashtra
Through Police Station Dharangaon,
Taluka Dharangaon, District Jalgaon. ... Respondent
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Mr. G.S. Rane, Advocate for the Appellant.
Mrs. P.V. Diggikar, A.P.P. for the Respondent/State.
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CORAM : S.S. SHINDE &
MANGESH S. PATIL, JJ.
DATE OF RESERVING THE JUDGMENT : 15.11.2017
DATE OF PRONOUNCING THE JUDGMENT : 27.11.2017
...
JUDGMENT: (Per Mangesh S. Patil, J.)
. Admit.
2. This is an appeal under Section 454 of Cr.P.C. by the original
informant, being aggrieved and dissatisfied by the judgment and order
dated 19.09.2015 thereby refusing to return the ornaments at the
conclusion of the trial under Section 452 of the Cr.P.C.
(2) cri.appeal 505.17
3. We have heard the learned Advocate for the appellant and
the learned A.P.P. We have also perused the record and proceedings
including the impugned judgment and order.
4. According to the learned Advocate for the appellant, the
appellant is the original informant at whose instance the criminal law was
set into motion registering the offences punishable under Section 395 of
the Indian Penal Code. The learned Additional Sessions Judge has
grossly erred in ignoring the fact that the appellant had filed the report
(exhibit-46) and during the deposition as PW-1 has stuck to his original
version about the dacoity. Even his wife Punam (PW-2) was examined
and she has also supported the prosecution inter alia regarding
commission of dacoity. They had specifically described all the ornaments
of which they were robbed of but even without discarding their testimony
or for that matter their title to the articles seized during investigation,
the learned Additional Sessions Judge has not directed the ornaments to
be returned to the appellant under Section 452 of the Cr.P.C. at the
conclusion of the trial. He also adverted our attention to the fact that a
similar application was moved by the appellant during the pendency of
the trial under Section 451 of the Cr.P.C., however, it appears that the
application was dismissed in default and in the revision preferred against
(3) cri.appeal 505.17
that order, even that was not pressed and it is thereafter that the
appellant had filed an application under Section 452 bearing Criminal
Application No. 6 of 2017 before the learned Additional Sessions Judge
claiming the property but that was not pressed perhaps because already
in the impugned judgment and order the learned Additional Sessions
Judge had passed the order and the remedy was available to the
appellant to prefer appeal under Section 454 of Cr.P.C. Thus, according
to the learned Advocate, the appellant is entitled to get back the
property which he was robbed of and there is no counter claim by
anybody.
5. The learned A.P.P. prayed to pass a suitable order.
6. At the outset, it is necessary to note that the request of the
appellant is rather innocuous. It is a common ground that the offence
was registered when he filed the report (exhibit-46) about the dacoity
and loss of various articles, ornaments gold and silver. It is also a
common ground that he and his wife did support the prosecution and the
report was duly proved by him during the course of trial. Even the
Investigation Officer Mr. Tiwari (PW-5) has stated about recovery of
various gold and silver ornaments from various accused. Inspite of such
state of affairs, the learned Additional Sessions Judge has refused to
(4) cri.appeal 505.17
return the Muddemal articles (A to E) by making following observations:
"23) So far as the seized Articles i.e. A to E is concerned,
no one including the informant and his wife came forward
so as to claim their right to have the possession thereof.
Therefore, I am of the opinion that, the same deserves to be
credited to the State."
Pertinently, the learned Additional Sessions Judge has not held that
these articles belong to someone else.
7. Ex facie, the observations are perverse and capricious. When
the appellant had stepped in the witness box and had admitted about
having lodged the report (exhibit-46) and on the basis of which the
prosecution had charge-sheeted the accused, there was no question of
the appellant lodging a claim to the property independently. The learned
Additional Sessions Judge was obliged to pass a suitable order under
Section 452 of the Cr.P.C. at the conclusion of the trial.
8. Be that as it may, the report of the Police Inspector,
Dharangaon Police Station, District Jalgaon addressed to the Additional
Public Prosecutor of this Bench states that the gold and silver ornaments
(5) cri.appeal 505.17
are robbed from the appellant and the police have no objection for
returning the same to him albeit on presentation of receipts and bills.
9. In view of such state of affairs, the appellant is entitled to
receive the articles. However, since we do not know if the State is
intending to prefer any appeal against acquittal, it would be just and
proper to direct the return of the property to the appellant subject to his
furnishing a personal bond of the value of the ornaments. Hence, we
pass the following order.
10. The Appeal is allowed. The impugned order to the extent of
refusing to return the seized valuable Muddemal to the appellant is
quashed and set aside.
11. The Muddemal articles (A to E) be returned to the appellant
on his furnishing indemnity bond before the learned trial Judge for
Rupees One Lakh subject to the condition that he shall produce the
Muddemal as and when directed.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
mub
