Judgment:
J.N. Bhatt, J.
1. The present revision petition is directed against the judgment and order passed by the learned Additional Sessions Judge, Jamnagar on 26-7-1983 in a Criminal Appeal No. 47 of 1982.
2. The material facts giving rise to the present Revision may be stated at the outset:
3. The petitioner herein is a goldsmith carrying on business in the name of Choksi Bhagwandas and Vrajlal Brothers at Jamnagar from whom gold ingot weighing 22 grams had been seized pursuant to an offence registered with Crime Register No. 76 of 1981. The opponent No. 1 herein is the original complainant who had filed criminal complaint under Section 379 of the Indian Penal Code for theft of her ornaments and clothes against one Ranjanben Laxmishankar on 25-1-1981.
4. Pursuant to the complaint, investigation was carried out and in course of the investigation, the muddamal gold ingot weighing 22 grams alleged to be stolen by the accused from the complainant had been recovered from the petitioner herein. Panchnama was also prepared in respect of the said muddamal recovered from the petitioner herein.
5. The learned Chief Judicial Magistrate, Jamnagar was pleased to convict the accused Ranjanben for the offence punishable under Section 379 of the Indian Penal Code and while passing the order of conviction in Criminal Case No. 1496 of 1981, the learned Chief Judicial Magistrate directed to return the muddamal Articles including the aforesaid muddamal gold ingot to the original complainant opponent No. 1 herein Binduben Gulabrai.
6. Being aggrieved by the said order with regard to the disposal of muddamal gold ingot, the petitioner herein filed the aforesaid Criminal Appeal No. 47 of 1982 in the Court of the learned Sessions Judge, Jamnagar. After hearing, the learned Sessions Judge, Jamnagar was pleased to dismiss the appeal on 26-7-1983.
7. Being dissatisfied by the said judgment and order of the learned Sessions Judge, Jamnagar, the applicant preferred this revision challenging the legality and validity of the order passed by the trial Court.
8. The learned Counsels for the applicant has contended that the impugned order with regard to the disposal of muddamal gold ingot is illegal as it was passed without hearing the petitioner herein. In order to appreciate the merits of this contention, it would be necessary to refer the material facts and circumstances facts and circumstances emerging from the record of the present case.
9. It is an admitted fact that the muddamal gold ingot weighing 22 grams had been taken from the possession of the present petitioner on 12-2-1981. The Panchnama, in that regard was also prepared which was produced in the trial Court at Ex. 12. The present petitioner who is a gold-smith was not cited as a witness in the charge-sheet. The present petitioner was also not examined in the trial Court. It is also apparent that the impugned order of the trial Court with regard to the disposal of the said muddamal gold ingot came to be passed under Section 452 of the Code of Criminal Procedure without hearing the present petitioner.
10. Section 452 of the Code of Criminal Procedure empowers the Court for passing appropriate orders for disposal of the muddamal Articles at the conclusion of the trial. There is no dispute about the fact that the present petitioner is affected by the impugned order. There is also no dispute about the fact that the present petitioner was not heard. No notice is issued against him prior to the passing of the impugned order with regard to the disposal of the said muddamal Article.
11. It is settled proposition of law that no order can be passed against a person who is affected or likely to be affected thereby. No doubt it is true that Section 452 of the Code does not in term prescribe or require a notice to be issued or hearing to be given to the party likely to be affected. But though the law is silent and does not expressly require issue of such notice, there is in the eye of law necessary implication that the parties adversely affected should invariably be heard before the Court makes an order of return of the seized property. This proposition of law is very well settled by Court of the land in State Bank of India v. Rajinder Kumar Singh reported in AIR 1969 SC 401. Unfortunately the learned Sessions Judge has failed to consider this important aspect. The finding of the learned Additional Sessions Judge with regard to the disposal of the muddamal Article in question is not only erroneous but is illegal. With the result, this petition is required to be allowed and the matter is required to be remanded to the trial Court.
12. For the foregoing grounds, this Revision is allowed and the matter is sent back to the learned Chief Judicial Magistrate at Jamnagar for disposal as expeditiously as possible insofar as the question of disposal of muddamal only of gold ingot gold weighing 22 grams is concerned. The Revision is allowed accordingly. The stay granted by this Court in respect of the said muddamal Article against the execution and implemention of the order of the trial Court shall remain operative till the matter is disposed of by the trial Court. Rule is made absolute.