K.J. Johny v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA,** ## **1945** **CRL.REV.PET NO.1155 OF 2023 JUDGMENT DATED 04-08-2023 IN CRA 184/2021 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA ORDER DATED 30-06-2020 AND CMP 523/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY** ## **REVISION PETITIONERS/APPELLANT/PETITIONER:** **K.J.JOHNY AGED 75 YEARS S/O.JOHN KANNANGAYATHU HOUSE, VELIYANADU P.O., ERNAKULAM, PIN - 682313** **BY ADVS. REJI GEORGE ANUPAMA JOHNY SAISANKAR.S** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.1155 of 2023 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** ## **Crl.Rev.Pet.No.1155 of 2023** **----------------------------------------------------------Dated this the 20[th] day of November, 2023** ## **O R D E R** The petitioner is the defacto complainant in C.C.No.1950 of 2011. He filed C.M.P.No.523 of 2020 under Section 452 of the Code of Criminal Procedure, 1973 (Code) seeking return of MOs 1 and 2 which are gold bars. That petition was dismissed and the order was confirmed in the appeal. The petitioner in this revision under Section 397 read with Section 401 of the Code challenges correctness, legality and propriety of the said order and the judgment. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. C.C.No.1950 of 2011 arose on a police report. The offences involved were punishable under Sections 454, 380, 461 and 411 r/w Section 34 of the Indian Penal Code, 1860. The allegations were that accused Nos.1 and 3 broke open the house of the petitioner and stole two gold bars kept inside a steel almirah in that house. Accused No.2 aided 3 Crl.R.P.No.1155 of 2023 them. Accused No.4 received the gold bars knowing them to be stolen articles. The prosecution ended in conviction of accused Nos.1, 2 and 4. Accused No.3 was acquitted. The judgment of conviction dated 03.05.2012 was challenged by the 2[nd] accused in Crl.Appeal No.422 of 2012. The 4[th] accused filed Crl.Appeal No.370 of 2012. It is seen that the said appeals were dismissed. 4. It is mentioned in the order dated 30.06.2020 in C.M.P.No.523 of 2020 that a Crl.Revision Petition No.39 of 2015 was filed against the judgment in Crl.Appeal No.422 of 2012. From the above, it is evident that the trial court as well as the appellate court confirmed the conviction of accused Nos.1, 2 and 4 for the offences alleged against them. 5. The trial court in its judgment in C.C.No.1950 of 2011 entered a definite finding that Mos.1 and 2 gold bars belonged to the petitioner and were stolen from his house. Based on the evidence on record, the trial court concluded that accused Nos.1 and 3 in furtherance of their common intention stole MOs 1 and 2 and the 4th accused knowing it 4 Crl.R.P.No.1155 of 2023 to be stolen articles, received MOs 1 and 2. The said findings were confirmed by the appellate court. 6. The trial court dismissed C.M.P.No.523 of 2020 stating that the records were not available in that court for perusal and verification. It was the said order that was challenged by the petitioner before the appellate court in Crl.Appeal No.184 of 2021 which was filed under Section 454 of the Code. The appellate court after having a detailed discussion, concluded that there was no error in the order of the trial court. 7. The theft occurred in the year 2011. The trial was concluded on 03.05.2012. Despite filing an application by the petitioner for return of MOs 1 and 2, the trial court as well as the appellate court did not consider the request for the mere reason that the respective courts were not able to peruse the records concerning C.C.No.1950 of 2011. It was as if those courts were not aware where the records were and also not in a position to know where the records were. If the records were in the appellate court or the revisional court, what was the difficulty either to request those courts 5 ## Crl.R.P.No.1155 of 2023 to send back the records specifically mentioning the purpose and resubmit after perusal, or to direct the petitioner to obtain and produce certified copies of the relevant records. Without doing so, the trial court rejected the application on the lame excuse that the records were not readily available in that court. By endorsing the said order, the appellate court also abdicated the obligation to take a decision on the application of the petitioner which was filed about 10 years after the theft. 8. In Bharat **Sanchar Nigam Limited v. Suryanarayanan and another[2020 (12) SCC 637]** the Apex Court held that the authority which is entrusted to the Court under Section 452 of the Code is judicial in nature. As a judicial power, it has to be exercised for valid reasons keeping in view the class and nature of the property and the material before the Court. 9. Section 452 of the Code empowers the Magistrate to pass orders in respect of custody of the property after the conclusion of inquiry or trial, and the Court may make such order as it thinks fit directing disposal by delivery of property 6 ## Crl.R.P.No.1155 of 2023 to any person claiming to be entitled to the possession thereof. The words "may make such order as it thinks fit" in the section vest the Court with the discretion to dispose of the property in any of the modes stipulated in the section. In **N. Madhavan v. State of Kerala [1979 (4) SCC 1]** , the Apex Court held that the normal rule is that a property must be restored to the person from whose possession it has come. When it is a stolen property and its ownership is established, the court is expected to order it to be given to its owner, especially when there is no rival claim. 10. From the judgments of the trial court and the appellate court, the facts that the theft occurred in the house of the petitioner and MOs 1 and 2 are the articles stolen have been found conclusively. When that is the finding, there is absolutely no purpose for retaining the stolen articles in court. Even if an appeal or revision is pending that does not prohibit release of the articles at least after getting a bond executed to ensure its production in court if required in future as provided in Section 452(2) of the Code. Going by the provisions of sub section (4) of Section 452 of the 7 ## Crl.R.P.No.1155 of 2023 Code an order for disposal of the property shall not be operative until the appeal has been disposed of. It also implies that the trial court is obliged to pass order for the disposal of the property on conclusion of the inquiry or trial. 11. Appeals filed by the convicts are also disposed of. In none of such judgments there is a reference that any of the accused staked a claim over the said objects. Even if there are rival claims, it was the obligation of trial court to pass an order for disposal of the properties under Section 452 of the Code, of course, subject to the decision of the civil court. The court need not have waited for an application in that respect is filed. At any rate, when an application was filed, that should not have been left undecided for the reason of nonavailability of the records. 12. There is an endorsement in the appendix of the judgment of the trial court in C.C.No.1950 of 2011 that MO1 was returned to PW1. But there is no reference in the judgment in that regard. Moreover the application filed by the petitioner for release of the articles and the appeal thereon were dismissed, which obviate that MOs 1 and 2 are 8 ## Crl.R.P.No.1155 of 2023 still in the custody of the court. In the above circumstances, there cannot be any doubt that those articles have to be returned to the petitioner, who is the defacto complainant and the person found to be the owner of the said articles by trial court as well as the appellate court, without any further delay. It is not known sure whether the revision petition challenging the conviction is disposed of or not. Therefore the return of MOs 1 and 2 can be only on executing a bond. In such circumstances, the impugned judgment and order being erroneous and improper are set aside. This revision petition is allowed. C.M.P.No.523 of 2020 of the Judicial Magistrate of First Class, Kolencherry is allowed. MOs 1 and 2 will be returned to the petitioner-PW1 in C.C.No.1950 of 2011 on his executing a bond for Rs.3,00,000/- (Rupees Three lakhs only) with one surety before the trial court. The trial court shall verify the availability of Mos 1 and 2 and identity of both petitioner and MOs 1 and 2 before return. Sd/- **P.G. AJITHKUMAR, JUDGE** PV