Madras High Court
Kanakaraj vs The State Rep. By on 17 December, 2021
Crl.O.P(MD)No.8110 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE DR.G.JAYACHANDRAN
Crl.O.P(MD)No.8110 of 2015
and
M.P(MD)No.1 of 2015
Kanakaraj ... Petitioner/Defacto Complainant
-vs-
The State Rep. by
The Inspector of Police,
Karaikudi Town Police Station (Crime Branch),
Karaikudi,
Sivagangai District.
(Crime No.172 of 1994). ... Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., praying
to call for the records relating to the Na.Ka.No.1/Karaikudi Town Crime Branch
Police/Sivagangai/2015 in Crime No.172 of 1994 on the file of the respondent
police and quash the same.
For Petitioner : Mr.VR.Shanmuganathan
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
1/9
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
ORDER
This petition has been filed by one Kanagaraj, who is the defacto
complainant in Cr.No.172 of 1994, which was investigated by the Karaikudi
North Police Station and ended in conviction of one Seeni @ Murugan for the
offences under Sections 457 and 380 IPC r/w 75 IPC.
2. The gist of the said case is that on 24.04.1994 at night, the house of the
defacto complainant Kanagaraj was broke open and jewels around 48 ½
sovereigns kept in the Almirah was stolen, hence, Seeni @ Murugan was
prosecuted for the offences under Sections 457 and 380 IPC. During the course
of investigation, the stolen properties were recovered and produced before the
Court under Form-91 and the same was received by the trial Court under the
property Register No.404/1994. Pending trial, in C.C.No.476/1994 the stolen
jewels were returned to the defacto complainant under Section 451 r/w 457
Cr.P.C. In the course of trial, the accused Seeni @ Murugan pleaded guilty and he
was sentenced to undergo 10 months Rigorous Imprisonment. While so, the very
same accused Seeni @ Murugan has also been prosecuted in another case
registered in Cr.No.549/1994 for similar offence. Since the investigation
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
conducted by the police indicated that the portion of the jewels stolen from the
petitioner was purchased by one Subramanian knowing well that it is a stolen
property, a case has been registered against the said Subramanian under Section
411 IPC in Cr.No.3/1995, which was taken on file for trial in C.C.No.55/1999 by
the learned Judicial Magistrate No.I, Madurai. The said Subramanian was
acquitted in the said case vide order, dated 27.11.2002.
3. In the said order of acquittal, the trial Court has specifically observed
that the prosecution has failed to prove the recovery of any jewels from the
accused and the witnesses for the prosecution for recovery had deposed contrary
to each other. Therefore, extending the benefit of doubt, the trial Court acquitted
the accused Subramanian. It is to be noted that in the course of trial, the
prosecution has not marked any material objects and the same is recorded in the
trial Court judgment.
4. In the said circumstances, the said Subramanian has preferred a
complaint against the police officials, who initiated prosecution against him for
offence under Section 411 IPC. The said complaint was taken on file by the
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
learned Judicial Magistrate No.I, Madurai in C.C.No.23 of 1997. The trial Court
convicted the police officials for offences under Sections 120-B, 385, 365, 341
and 347 IPC. The said judgment of conviction and sentence was challenged by
the police officials in C.A.No.131 of 2002 and that was allowed by the learned
Additional Sessions Judge, FTC No.I, Madurai. Aggrieved by the said acquittal,
the Subramanian has approached this Court by way of revision petition in
Crl.R.C.(MD)No.1805 of 2003. In the said revision, this Court vide order dated
29.01.2010 had remanded back the matter to the trial Court for re-trial.
5. The learned Additional Public Prosecutor appearing for the respondents
would submit that out of two accused, one of the accused by name Balakrishnan
died and other accused Kannan retired from service long back.
6. While the fact being so, when the State preferred an appeal against the
order of the learned Judicial Magistrate No.I, Madurai acquitting the said
Subramanian in C.C.No.55 of 1999, this Court while dismissing the appeal has
passed an order directing the State to return back the jewels viz., 6 sovereigns
chain, 3 sovereign bracelet and one ring and cash of Rs.2,390/- and 216.610 gram
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
gold ingot which were alleged to have been seized from the Subramanian by the
police within a period of three months.
7. This portion of the order passed by this Court in Crl.A.No.1208 of 2003
dated 16.12.2014 has lead to issuance of impugned proceedings by the Inspector
of Police, Karaikudi police station, dated 23.01.2015 addressing the petitioner
herein to return back 39 ½ sovereigns of gold jewels which he received through
the Court in C.C.No.476 of 1994 on the file of the learned Judicial Magistrate,
Karaikudi in Cr.No.172 of 1994 Karaikudi Police Station.
8. The Short point canvassed by the petitioner herein challenging the
impugned proceedings of the respondent is that the said proceedings per se illegal
and devoid of merits, it is contrary to the facts and findings of the trial Court.
While the jewels stolen from the petitioner's house were recovered and produced
before the Court and the same has been returned to the petitioner as per law and
guidelines laid down by the Supreme Court, the proceedings of the respondent to
return back those jewels, relying upon the observation of the High Court in
different proceedings, is baseless.
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
9. The learned counsel for the petitioner would submit that in the criminal
case in C.C.No.55 of 1999 where the said Subramanian was prosecuted for
offence under Section 411 IPC, no material object was marked, certainly not the
39 ½ sovereigns of jewels which is the subject matter of C.C.No.476/1994.
While so, there is no reason for the police to direct the petitioner herein to return
his jewels in lieu of the list of jewels mentioned in the order of this Court, dated
16.12.2014 passed in Crl.A.No.1208 of 2003 arose from C.C.No.23 of 1997.
Further more, even if there is any order to return jewels, direction is to the
respondent police and not to the petitioner herein. As far as the jewels, which the
petitioner received through the Court are the jewels stolen from his house by the
accused and on proper identification and satisfaction, the trial Court has returned
the jewels to the petitioner. When there is a categorical finding that no proof for
recovery of jewels from the house of Subramanian as projected by the prosecution
in C.C.No.55 of 1999 and that being the reason for acquitting him for the offence
under Section 411 IPC, the list of jewels mentioned in Crl.A.No.1208 of 2003 the
High Court order in the appeal preferred by the State cannot be in respect of the
petitioner's jewels.
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
10. It is not the case of the said Subramanian that the police has recovered
the jewels from his possession and those belongs to him. When he was
prosecuted for possessing stolen property with knowledge he had pleaded that
nothing was recovered from his residence and got acquitted and no jewels were
marked in the case, where, he was prosecuted. While so, the return of non
existing property to Subramanian does not arise factually and if there is anything
to be returned, the same cannot be from the petitioner herein.
11. Therefore, this Criminal Original Petition is allowed by setting aside
the order of the respondent, dated 23.01.2015 in Na.Ka.No.1/Karaikudi Town
Crime Branch Police/Sivagangai/2015. No costs. Consequently, connected
miscellaneous petition is closed.
17.12.2021
Index : Yes / No
Internet : Yes / No
am
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate / litigant
concerned.
To
1.The Inspector of Police,
Karaikudi Town Police Station (Crime Branch),
Karaikudi,
Sivagangai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8110 of 2015
DR.G.JAYACHANDRAN,J.
am
Crl.O.P(MD)No.8110 of 2015
17.12.2021
https://www.mhc.tn.gov.in/judis
