Decided on October 29,1991



KAMLESH SHARMA,J. - (1.) In Case No. 105/1 of 1984 titled State v. Davinder Singh and four others, while acquitting the accused under section 379 and 34,1. P. C, the Sub -Divisional Judicial Magistrate, Theog, Shimla, passed the following order in respect of the case property which consisted of 165 scants of Kail and 25 scants of Deodar : - ".....As far as case property i.e. 165 scants of Kail and 25 scants of Deodar having not been proved to be the stolen property owned by Sh. Laiq Ram and there being no record with Jain Timber trader regarding its ownership, it be disposed of no establishing its ownership by any of these persons. In case, any of them fails to prove ownership, the case property shall be deemed to have been forfeited to the State of H. P. However, it be not disposed of in any manner within 60 days from today. In case appeal is not filed and in case of appeal be disposed of in accordance with the orders of the appellate Court......"
(2.) Now, the petitioner M/s. Friends Timber Trading Coy. through its partner Laiq Ram has filed this petition under section 482 read with sections 397 and 401 Cr. P. C. for quashing the above noted order and also for delivery of timber or payment of the amount realised, if timber ha s already been disposed of to it. Admittedly, the above stated criminal case was registered at the instance of Laiq Ram, partner of the petitioner firm who had also appeared as PW 1. His complaint was that the accused persons had stolen the timber from Brahmu where the timber of the petitioner firm was stacked Further, admittedly, during the investigation, the timber alleged to have been stolen was recovered from Jain Timber Trading Coy at Panchkula and its owner Sh. Taresh Chand was produced as PW -4. The statements of these two witnesses and other prosecution evidence on record has been examined by the trial Court to find out whether the accused persons are guilty of the offence of theft of timber. The point that who was the owner of the timber, which was taken into possession by the police from Jain Timber Trading Coy. was not directly involved in the case.
(3.) Sh. Praneet Gupta, learned Counsel for the petitioner, relying upon AIR 1969 SC 401, State Bank of India v. Rajinder Kumar Singh and others, has urged that before passing the order in respect of disposal of the case property, some sort of hearing was required to be given to the petitioner -firm or its partner Laiq Ram who had lodged the F. I. R. and bad complained that the timber of the petitioner firm was stolen. la State Bank of India v. Rajinder Kumar Singh and others (supra), the Supreme Court of India while examining whether notice to the affected parties is required to be given before making an order in respect of disposal of the case property under old section 520, Cr, P. C. (new section 455, Cr. P. C.) held : - "......It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property......";

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