Full Judgment
S.K. Phaujdar, J.
1. The applicants have invoked the powers of this Court under Section 482, Cr. P.C. for quashing an order dated 19-3-1998 recorded by the VII Additional Sessions Judge, Varanasi, in Criminal Appeal No. 235 of 1984, now pending before him. The present respondent No. 2 faced a prosecution under Sections 457/380 and 411, I.P.C. and was convicted for offences under Sections 457/380, I.P.C. and was sentenced to R. I. for two years. The articles, that were said to have been recovered during investigation were lying in the custody of the present two applicants and the Trial Court, by its judgment dated 3-9-1984, directed that the same be returned to the accused-respondent only after disposal of the appeal and during pendency of the appeal it should remain in the custody of the complainant. This judgment was challenged both in Criminal Appeal No. 265 of 1984 and in Criminal Revision No. 232 of 1984. These appeal and revision are both pending before the VII Additional Sessions Judge, Varanasi. Before the Appellate Court, Ajay Kumar made a prayer for keeping the case properties in material Exts. 1 and 4 in the Malkhana and the said application was allowed by the learned Additional Sessions Judge by the impugned order dated 19-5-1998. It was stated that during the trial Ajay Kumar had never claimed to be entitled to the possession of these materials and the order of the Appellate Court could not have modified the direction given by the trial Court. It was further stated that Ajay Kumar while moving his bail application at the trial stage had asserted that nothing was recovered from his possession.
2. The arguments of the applicants have two facets. The order was challenged on the question of jurisdiction of the Appellate Court and it was also challenged on the question of its propriety in view of the facts of the case. Section 452, Cr. P.C. speaks of the power of a criminal court to direct disposal of property at conclusion of trial. Under this section, when an enquiry or trial in a criminal court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody or regarding which an offence appears to have been committed or which has been used for the commission of any offence.
3. An order under Section 452, Cr. P.C. regarding disposal of property is open to an appeal under Section 454, Cr. P.C. It is necessary to quote the words of this section :
454. Appeal against orders under Section 452 or Section 453. - (1) Any person aggrieved by an order made by a court under Section 452 or Section 453 may appeal against it to the court to which appeals ordinarily lie from convictions by the former court.
(2) On such appeal, the appellate court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.
(3) The powers referred to in Sub-section (2) may also be exercised by a court of appeal confirm or revision while dealing with the case in which the order referred to in Sub-section (1) was made.
4. It, thus, appears that the order for disposal of a property when recorded in a judgment of conviction may come before the court of appeal or revision either by way of an appeal against the disposal order itself as provided under Section 454, Cr. P.C. or it may come up as a question in an appeal against the conviction itself. Whether it is an appeal under Section 454 or an appeal against the conviction passed in the judgment in which the disposal order was passed, the court of appeal could modify, alter or annul the order of disposal recorded by the court below and make any further order that may be just.
Thus, the first objection regarding absence of jurisdiction is untenable. The appellate court had every authority to modify the order of disposal or even to annul the same as was recorded by the court below.
5. I may now come to the propriety of the impugned order. It appears from the impugned order as well as the judgment of conviction as recorded by the Magistrate that material Exts. 1 and 4 (both gold ornaments) were directed to be returned to the accused after expiry of the appeal period subject to the decision of the appeal, if filed. There was a further direction that as the materials were already in the custody of the complainant, the same would continue to be in his custody till any order in appeal was passed. The learned lower appellate court had considered the judgment of the trial court to find that the trial court had found that material Exts. 2, 3 and 5 to 27 were properly identified in court and were properties of the complainant and the defence in regard to these properties was not accepted. He further opined that the trial court had come to a conclusion that the material Exts. 1 and 4 did not belong to the complainant as the same were not identified in a test-identification parade. With this background before him and with the power given to him under Section 454(3), Cr. P.C. the direction that material Exts. 1 and 4 should now be produced before the Chief Judicial Magistrate, Varanasi with a further direction that the same would be kept in the Malkhana do not appear to be improper. The trial Court did not find that these properties belong to the complainant and as such there was no justification for him to allow the same to be retained by the complainant. The appellate court had not directed return of the same to the accused. It has simply directed that the same may be kept in the court Malkhana. The present applicants have no reason to be aggrieved by this order.
6. Accordingly, on both the points advanced before this Court, the present petition is untenable and is accordingly dismissed.