ORDER
1. The judgment dated 7-2-1995 of the learned Prl. Sessions Judge, Hassan passed in Cr. A. No. 49 of 1991 dismissing the same, stands challenged in Cr. P. No. 1519 of 1995 by the petitioner 'The Oriental Insurance Company Limited, Bangalore', as the insurer of the complainant-Bank.
In Cr. P.C. No. 426 of 1995 the learned Trial Magistrate's order dated 8th March, 1981 and the said judgment dated 7-2-1995 of Session's Court confirming that order of Magistrate are challenged by the complainant-Bank.
2. The four accused named, (1) Anantha @ Gende, (2) K.N. Manju-natha @ Manja, (3) Ganesha @ Ganeshraj Ballal and (4) M.K. Ravichandra @ Ravi @ Kutti (A1, A2, A3 and A4 respectively) were prosecuted for the offences under Sections 120-B and 392, IPC before the learned C.J.M., Hassan in C.C. No. 11 of 1989 by P.W. 43-Dy. Superintendent of Police of Hassan Sub-Division, (hereinafter referred to as the 'I.O.') Hassan, on the allegations that pursuant to the conspiracy hatched out between them they committed robbery of Rs. 1,78,348/- from the complainant-Bank on 15-11-1988 at about 7.15 p.m. by putting its employ-ees-P.Ws. 1 and 2 and C.Ws. 1 and 2, under the instant fear of death and bodily injury to them. On a full-fledged trial they were acquitted of the said offences by the learned Trial Magistrate by his judgment dated March 8, 1981. Under the said judgment of acquittal the learned Trial Magistrate further passed his order purporting to be one under Section 452, Cr. P.C. confiscating the said cash marked at M.Os. 10 to 32 to the State instead of returning the same to the complainant-Bank.
3. The order of the learned Magistrate was challenged before the learned Sessions Judge in the said Cr. Appeal No. 41 of 1991 by the City Co-operative Bank Limited, Hassan, (hereinafter called the 'complainant'), on the ground that the said cash amount belonged to the complain-ant which was subject of said robbery and, as such, the complainant was entitled to return thereof.
4. In the course of investigation the I.O. (P.W. 43) arrested A2 on 3-3-1989. On his voluntary statement at Ex. P. 51 he (I.O.) recovered, together with other articles, the total cash of Rs. 5,000/- consisting of two bundles of Rs. 10/- containing Rs. 2,000/-; five bundles, each containing 100 currency notes of Rs. 5/- denomination; one bundle containing 100 currency notes of Rs. 2/- denomination, and three bundles each containing 100 currency notes of Re. 1/-, under Ex. P. 20 seizure mahazar marked at Ex. P. 10 to P. 13 at the trial. Again on 4-3-1989 A1 was arrested and interrogated by the I.O. and on his voluntary information Ex. P.3, he recovered M.O. 40 suit case containing currency notes of total value of Rs. 20,000/- consisting of 3 bundles of Rs. 20/- notes each containing 100 currency notes; 5 bundles of Rs. 10/- notes each containing 100 currency notes; 20 bundles of Rs. 5/- notes each containing 100 currency notes; 4 bundles of Rs. 2/- notes each containing 100 currency notes of Rs. 2/-; and two bundles of Re. 1/- notes each bundle containing 100 currency notes of Re. 1/-, which are identified at M.O. Nos. 16 to 20 by P.W. 1. This seizure was effected under Ex. P. 21. Again, on 4-3-1989 A1 was arrested by P.W. 43 (I.O.) on whose voluntary information at Ex. P. 3 he recovered 5 bundles of Rs. 20/- notes at M.O. 14 and 10 bundles of Rs. 10/- notes at M.O. 15, of the total value of Rs. 20,000/-. Similarly, on the same day A3 was also arrested by P.W. 43 on whose voluntary statement at Ex. P. 55 one bundle of Rs. 20/- notes at M.O. 22, 10 bundles of Rs. 10/- notes at M.O. 22 and 5 bundles of Rs. 5/- at M.O. 23, totalling the cash of Rs. 25,000/-, were seized under Ex. P. 41 the panchanama.
5. On the following day i.e., on 5-3-1989 the I.O. effected recovery at the instance of A1 of 2 bundles of notes of Rs. 10/- denomination marked at M.O. 24 of the total value of Rs. 2,000/- under Ex. P. 13 panchanama, and one bundle of currency notes of Rs. 10/- marked at M.O. 25, and 4 bundles of Rs. 5/- notes marked at M.O. 26 under Ex. P. 15 panchanama. Thereafter, on 7-3-1989 A4's arrest was made by the I.O. and he was also interrogated. A4's voluntary statement at Ex. P. 57 was recorded by him. In consequence of Ex. P. 57 he recovered 7 bundles of Rs. 10/- notes marked at M.O. 27, 2 bundles of Rs. 5/- notes marked at M.O. 28 and 5 bundles of Rs. 2/- marked at M.O. 29, the total value of which was Rs. 8,500/-, under Ex. P. 17 panchanama. On 10-3-1989, again at the instance of A4 he effected recovery of one bundle of Rs. 50/- notes at M.O. 30, one bundle of Rs. 20/- at M.O. 31 and 80 pieces of Rs. 10/- notes at M.O. 32, the total cash value of which is Rs. 7,800/- and the same was seized by him under Ex. P. 50 panchanama.
6. The I.O. (P.W. 43) has testified to the fact of said recoveries of the bundles of currency notes at M.Os. 10 to 32 on the information and at the instance of A1, A2, A3 and A4 under the said respective seizure panchanamas made by him in the presence of panchas who have attested them. In addition, there is the evidence of P.W. 1 complainant who was accountant of the Bank as also of the two Bank cashiers whowere eye-witnesses to the occurrence. Their evidence is to the effect that in the said incident of dacoity a total cash of Rs. 1,78,384/- was looted from the treasury of the bank by the dacoits at the gun point and that the currency note bundles at M.O. Nos. 10 to 29 carry the Bank's shara of scroll containing necessary particulars such as the total figure of value of each bundle with date and initials of both P.Ws. 1 and 2. P.W. 2 has specifically deposed before the Trial Court that M. Os. 10 to 29 were prepared by both P.Ws. 1 and 2 and the said shara scrolls on each of them bearing their initials were labelled and thus they are the currency notes of their Bank. It is pertinent to note that this positive piece of material evidence regarding identity of M.Os. 10 to 29 by independent, believable P.Ws. 1 and 2 stands unchallenged in their cross-examination and it has been singularly ignored from consideration by both the Courts below. They have proceeded oh the baseless assumption that all the note bundles at M.Os. 10 to 32 were not at all identified by P.Ws. 1 and 2 as the currency note bundles of their bank. The said crucial piece of evidence was in itself sufficient for both the Courts below to hold that the Bank was prima facie entitled to possession thereof under Section 452, Cr. P.C. This apart, the complainant-Bank's account books at Ex. P. 1 'cash reserve register', Ex. P. 2 'denomination slip book' and Ex. P. 5 which is the 'cashier-accountant scroll register' were also produced by the prosecution at the Trial through evidence of P.Ws. 1 and 2 who have identified the relevant entries therein pertaining to the cash at M.Os. 10 to 29 with reference to the denomination value of each of these notes contained in each of these bundles, which evidence of theirs has also gone unchallenged on record. This important piece of relevant evidence is also not considered by both the Courts below.
7. In addition, to the above stated relevant material on record there are the statements of accused-A1, A2, A3 and A4, recorded in detail by the I.O. (P.W. 43) who has deposed to the same at the trial. From their statements it clearly transpires that in the dacoity committed by them in the complainant-Bank at the already stated date and time, a total cash of Rs. 1,40,000/- contained in various bundles was looted by them holding out threats to the life of P.Ws. 1, 2 and other two attendees of the Bank, who are attendees C.W. 3 Shivaram and C.W. 4 Shivalin-gaiah, and they decamped with their booty and had it distributed among themselves.
8. The moot point for consideration that arises is whether for the disposal of the property under Section 452, Cr. P.C. the relevant portions of the statements of charge-sheet witnesses recorded by the Investigating Officer under Section 161, Cr. P.C. as also the confessional statements of the accused recorded by him, could be looked into and acted upon in law?
9. It is now a settled proposition of law that the bar under Section 162, Cr. P.C. for use of the statements of witnesses recorded by the Investigating Officer under Section 161, Cr. P.C. is confined to and limited for the prosecution in adducing its evidence at the trial in proof of the alleged guilt of the accused and that the use of such statement forthe purpose of any enquiry or proceeding other than the enquiry and proceeding relating to the trial of the accused is not precluded. In this regard the Supreme Court in case of Mahesh Kumar v State of Rajas-than, has laid down the following proposition.-
'It is now accepted principle that the confessional part of the statement made by the accused leading to discovery within the meaning of Section 27 of the Evidence Act, 1872 or Section 162 of the Code of Criminal Procedure, 1973 can be made use of for purpose of and the disposal of property under Section 452 of the Code'.
10. The High Court of Rajasthan in case of Balkrishan v State of Rajasthan, reviewing the case law on the point has held.-
'It is thus settled position of law that the statement of an accused or a witnesses can be looked into for disposal of the property, which takes place at the conclusion of the enquiry or trial of a case'.
Elaborating this legal position the High Court has observed as under.-
'The words 'at any enquiry or trial in respect of any offence under investigation' imply that such a statement cannot be used during any enquiry or trial for the offence. But the use of such a statement recorded under Section 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. . .. '.
11. This Court in case of Veerabhadrappa v Govindamma and Another, has held to the effect that.-
'The confessional statement of the accused made before the Investigating Officer during the investigation is though inadmissible to prove the offence, it can be relied while making the order under Sections 452 and 517, Cr. P.C. (Corresponding Section in the new Code, Section 452, Cr. P.C.).
12. The High Court of Kerala in case of Thampi Chettiar Arjunan Chettiar v State and Another, has also taken the same view, while dealing with the same question. At Para 13 of its order, which reads as follows.-
'Prohibition by Section 162(1) regarding the use of the statement is for any purpose except as allowed in the proviso, at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. Therefore, by no stretch of imagination, it could be said that the prohibition is applicable to the admission of the statement in the proceedings with which I am now concerned. The proceedings in question isnot any enquiry or trial in respect of any offence under investigation at the time when the statement was made. We are now concerned only with the proceedings regarding disposal of property after conclusion of trial. That is not an enquiry or Trial in respect of any offence under investigation when the statement was made. Therefore, the prohibition is not applicable and there is no merit in the objection'.
13. Therefore, the aforequoted authorities dealing with the scope of Sections 161, 162 in the context of an order to be placed by a Criminal Court under Section 452, Cr. P.C. make the legal position clear for the purpose of the delivery of property under Section 452, Cr. P.C. that the Magistrate need not necessarily confine his attention to the prosecution evidence proper on record and on his findings recorded on the material points raised by him relating to the guilt of an accused in a criminal trial, but he can and has to look into the material portions in the statements of charge-sheet, witnesses as also confessional statement of the accused recorded by the Investigating Officer during his Investigation, although such material is inadmissible in evidence by virtue of Section 162. Cr. P.C., the only exception being the statement of accused falling within the ambit of Section 27 of the Evidence Act.
14. In the case on hand accused 1, 2, 3 and 4 in their statements recorded by the Investigating Officer, which were produced in the Trial Court along with the charge-sheet, have given a clear account of their commission of robbery in the complainant-Bank and of their having robbed the total cash amount of Rs. 1,32,0007- from the said Bank and having distributed that booty amongst themselves. Besides, there is the evidence of P.W. 43 1.0. on record on his recovery of currency notes at M.O. Nos. 10 to 30 on the information and at the instance of these accused. Coupled with this dependable material there was also the said material evidence of P.Ws. 1 and 2 available to the learned Magistrate and the learned Sessions Judge in revision. The bundle of notes at M.O. Nos. 10 to 29 were duly identified by them as the stolen cash amount of their Bank on the basis of the shroff scrolls appended to each of those bundles, under their initials and date. In the face of that sufficient and dependable material on record there was no justification whatsoever for both the Courts below to pass the impugned orders declining the delivery of the total cash amount of Rs. 93,300/- marked at M.O. Nos. 10 to 32, merely on the ground that on the basis of the evidence on record the negative findings were recorded by the learned Magistrate on the material points in judgment of acquittal. Undoubtedly, on the basis of the above relevant material on record, the complainant-Bank was entitled to delivery of the possession of the cash at M.O. Nos. 10 to 32 and both the Courts below have erred in law in passing their impugned orders rejecting the prayer of the complainant-Bank. In that view of the matter their orders are unsustainable in law and the application of the complainant-Bank under Section 452, Cr. P.C. made for delivery of the said cash amount is entitled to be allowed.
15. Hence, for the reasons aforesaid, the Criminal Revision Petition No. 426 of 1995 filed by the complainant-Bank is allowed. The impugned orders of both the Courts below are set aside. The petitioner's (complainant-Bank's) application made before the learned Magistrate under Section 452, Cr. P.C. is allowed, holding that the petitioner is entitled to the possession of the currency notes marked during trial at M.O. Nos. 10 to 32, the total value of which is Rs. 93,300/- and the same shall be returned to the complainant-Bank.
16. In view of this order the Criminal Petition No. 1519 of 1995 filed by the Oriental Insurance Company Limited, Bangalore, does not survive and it stands disposed of accordingly.