Decided on January 03,1984

BAL KISHAN Appellant

Referred Judgements :-



S. S. BYAS, J. - (1.)THIS revision is directed against an order of the learned Sessions Judge, Balotra dated June 4, 1981 passed in an appeal under Sec. 454, Cr. P. C. relating to the delivery of the property.
(2.)VERY few facts need narration for the disposal of this revision. Kanraj, who is respondent No. 2 in this proceeding, lodged a written report on 17. 8. 75 at police station, Balotra stating therein that in his absence, unknown miscreants renounced the house situate in his town Pachpadara and decamped with gold and silver ornaments and other properties of huge value running in several thous and of rupees. The police took up the investigation and rounded up the burglars with their arides. The major portion of the stolen properties and in original and converted shape were recovered in consequence of the informations furnished by the culprits whilst under police custody. On the completion of investigation, the police presented a charge-sheet against six persons including the revision-petitioners Balkishan and Meghamal. The case was tried by the Munsif and Judicial Magistrate, Balotra. Charges under sections 411 and 414, IPC were framed against them and Kamal Kishore and respondent No. 3 Parasmal. Charges under sections 457 and 380, IPC were framed against Govindlai and Jagdish. On the conclusion of trial, the revision-petitioners and Kamal Kishore were acquitted. The remaining three were convicted and sentenced. The properties which were recovered by the police included one gold ingot weighing 9. 6, tolas and currency notes of Rs. 7,841/. The said ingot was recovered from petitioner Balkishan, while the currency notes of Rs. 7,841/- were recovered from accused Parasmal (convicted and sentenced ). The Munsif and Judicial Magistrate held that the aforesaid gold nugget was not proved to be the stolen property. He further held that the currency notes of Rs. 7,841/- which were recovered from accused Parasmal belonged to the revision-petitioner Meghamal, which he had paid to Parasmal as the price of another gold nugget weighing 13 tolas. The Magistrate, therefore, passed an order that the gold nugget weighing 9. 6 tolas be returned to revision-petitioner Balkishan and the currency notes of Rs. 7,841/- be returned to the other revision-petitioner Meghamal. Aggrieved against this order of the Magistrate, Kanmal filed an appeal under Sec. 454, Cr. P. C. In appeal the learned Sessions Judge reversed the above part of the order of the Magistrate and directed the delivery of the said properties i. e. gold nugget weighing 9. 6 tolas and currency notes of Rs. 7, 841/- to respondent Kanmal. Dis-satisfied with this order of the learned Sessions Judge dated June 4, 1981, Balkishan and Meghamal have rushed up in revision.
I have heard the learned counsel appearing for the parties and the Public Prosecutor. I have also gone through the record carefully.

Before proceeding further, it may be pointed out that the learned Sessions Judge in passing the impugned order mainly depended on the statements of the revision-petitioners recorded under sec. 161, Cr. P. C. during investigation. He further relied upon the informations furnished by them and the other co-accused given by them to the investigating officer under sec. 27 of the Evidence Act. He held that sec. 162, Cr P. C. created no bar against the reception of these statements in revision. These statements could be looked into for the purpose of the delivery of the properties. In doing so, he relied upon the two decisions of this Court viz. Dhanraj Baldeokishan v. The State (1) and Mst. Bhuti v. Bhanwar Lal (2 ).

The learned counsel appearing for the revision-petitioners vehemently contended that the whole approach of the Sessions Judge was erroneous and unsustainable in law. The statements made by the revision-petitioners and the co-accused could not be looked into for any purpose. In reply, it was submitted that in view of the above two decisions of this Court and the decisions of the other High Courts, the statements of revision-petitioners and other to accused-persons could be looked into for the limited purpose of delivery of the properties. I have taken the respective contentions into consideration.

The statement recorded under sec. 162, Cr. P. C. is prohibited from being used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The general caption is that it can be used by the accused to confront and contradict its maker. The prosecution can also use such a statement to contradict its maker with the permission of the court. The words "at any enquiry or trial in respect of any offence under investigation" imply that such a statement can not be used during any enquiry or trial for the offence. But the use of such a statement recorded under sec. 161, Cr. P. C. is not prohibited for any other purpose or in a subsequent stage of the same case after when the trial is concluded. The learned counsel appearing for the revision-petitioners could not bring any authority to my notice wherein the reception of such a statement is prohibited for any purpose other than in the enquiry or trial.

(3.)IN addition to the two authorities of this Court referred to above, there are decisions of the other High Courts in which it has been held that the statement made during investigation can be used in proceeding under sections 517 and 523, Cr. P. C. (now sections 452 and 457 of the New Code) and also subsequent for civil suits. IN Pohlu vs. Emperor (3), it was held that the confessional statement of the accused could be properly used for the purposes of Sec. 517 to determine (1) whether the property is property regarding which an offence appears to have been committed and, (2) for determining the person to whose custody, it should to delivered. The same view was expressed in Queen Empress vs. Tribhuvan Manekchand (4 ). The view adopted in the aforesaid two decisions was followed in Prakash vs. Jagdish (5 ). IN Dhanraj Baldeokishan's case (Supra), the view taken in the above three authorities was approved and it was observed: - "that being so, I am clearly of opinion that these entire statements including those parts which might not have been admissible at the trial of the accused whether under sec. 25 of the Evidence Act or sec. 162 of the Code of Criminal Procedure were perfectly good material for the purpose of sec. 517, Cr. P. C. IN other words, we have it from the accused himself that those monies had been realised by him from the sale of the stolen commodities which undoubtedly belonged to the complainants. " IN Mst. Bhuti's case (Supra), it was laid down: - "thus the use of statements recorded during investigation is barred during an enquiry or trial relating to the offence under investigation when such statement was made. But an order for disposal of property is passed after the conclusion of an enquiry or trial as the opening words of sec. 517 show and so sec. 162 cannot be a bar for using those statements in such proceedings where the question of right of possession of the property is only looked into by the court and not of its owner-ship. "
It is thus settled position in law that the statement of an accused or a witness can be looked into for disposal of the property, which takes place at the conclusion of the enquiry or trial of a case. The contention of the learned counsel for the revision petitioners is thus barren and holds no ground.

It was next argued that the molten pieces of gold weighing 9. 6 tolas and currency notes of Rs. 7841/- have not been proved to be the stolen properties and the learned Sessions Judge was obviously in error in delivering them to respondent Kanmal. it was argued that no gold nugget or currency-notes were alleged to have been stolen. It has also not been proved that the gold nugget was of the molten pieces of the gold ornaments, which were alleged to have been stolen.

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