The State, Acb vs Miryala Ramulu
2023 Latest Caselaw 1431 Tel

         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