Case Note & Summary
The petitioner, Satish Ramakant Naik, filed a criminal revision application before the High Court of Bombay at Goa challenging two orders: one dated 17/12/2014 passed by the Judicial Magistrate First Class (JMFC), Mapusa, in Criminal Misc. Application No.254/Release/2014/A, and another dated 10/03/2016 passed by the Additional Sessions Judge, Mapusa, in Criminal Appeal No.12/2015. The background of the case is that on 13/04/2005, the petitioner lodged a report with Porvorim Police Station regarding theft of golden ornaments, cash, and his service pistol from his residence. Based on this report, crime no.34/2005 was registered under Sections 454 and 380 of the Indian Penal Code (IPC). During investigation, part of the gold in a melted condition was recovered from the accused. The Investigating Officer informed the petitioner that if he desired to obtain the gold, he could apply to the court. On 16/10/2007, the petitioner filed an application under Section 457 of the Code of Criminal Procedure (CrPC) before the Magistrate. The Magistrate, after considering the police's say, directed the respondent no.1 (State of Goa) to release and hand over the melted gold to the petitioner upon executing an indemnity bond of ₹50,000/-. The petitioner complied and took possession of the gold. Subsequently, the accused were acquitted in Criminal Case No.47/S/2009/A on 28/05/2014. After the acquittal, the respondent no.2, Kalidas R. Raikar, who is a goldsmith, filed an application on 01/07/2014 under Section 452 CrPC claiming custody of the melted gold. The learned Magistrate, by the impugned order dated 17/12/2014, directed the petitioner to deposit the melted gold in the court and upon deposit, directed it to be delivered to respondent no.2 on his executing an indemnity bond of ₹3,00,000/-. The bond was to remain in force for three months. The petitioner appealed this order, but the Additional Sessions Judge dismissed the appeal on 10/03/2016. Hence, the petitioner approached the High Court. The High Court heard arguments from Shri Santosh H. Bharne for the petitioner, Shri S.R. Rivankar for the State, and Shri Ganesh Naik for respondent no.2. The court noted that the petitioner was the victim of theft and had been given custody of the gold under Section 457 CrPC. The court observed that the Magistrate's order under Section 452 CrPC was erroneous because it failed to consider that the gold was stolen from the petitioner and recovered from the accused. The court held that the petitioner had a legitimate claim to the gold and that the order directing delivery to respondent no.2 was unsustainable. The High Court allowed the revision application, set aside the impugned orders, and directed that the petitioner shall retain the melted gold in his custody.
Headnote
A) Criminal Procedure Code - Disposal of Property - Sections 452 and 457 CrPC - Custody of Recovered Property - The petitioner, victim of theft, was given custody of melted gold under Section 457 CrPC after executing an indemnity bond. After acquittal of accused, the goldsmith (respondent no.2) claimed custody under Section 452 CrPC. The Magistrate ordered petitioner to deposit gold and deliver it to respondent no.2. The High Court held that the order was erroneous as the petitioner was the victim and had legitimate claim; the Magistrate failed to consider that the gold was stolen from petitioner and recovered from accused. The order was set aside. (Paras 1-12) B) Criminal Procedure Code - Disposal of Property - Section 452 CrPC - Order for Delivery - The court must determine the person entitled to possession. In this case, the gold was stolen from petitioner and recovered from accused; petitioner had been given custody under Section 457 CrPC. The Magistrate's order to deliver to respondent no.2 without proper inquiry was unsustainable. (Paras 8-12) C) Criminal Procedure Code - Revision - Section 397 CrPC - High Court's Revisional Powers - The High Court can interfere when the lower court's order is illegal or improper. Here, the impugned orders were set aside as they failed to protect the rights of the victim. (Para 12)
Issue of Consideration
Whether the learned Magistrate and the Appellate Court were justified in directing the petitioner, who was the victim of theft and had been given custody of the melted gold under Section 457 CrPC, to deposit the gold and deliver it to the respondent no.2 (goldsmith) under Section 452 CrPC after the acquittal of the accused.
Final Decision
The High Court allowed the criminal revision application, set aside the impugned orders dated 17/12/2014 and 10/03/2016, and directed that the petitioner shall retain the melted gold in his custody.
Law Points
- Section 452 CrPC does not override Section 457 CrPC
- victim's right to retain property recovered from accused
- order for disposal of property after conclusion of trial must consider rightful owner
- appellate court's failure to consider relevant factors
