1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 85 OF 2011 (Maheshkumar Bansidharji Khandelwal and others .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri R.L. Khapre, Advocate with Shri S.A. Mohta, Advocate for the applicants. Shri P.V. Bhoyar, APP for the respondent/State. CORAM : PRASANNA B. VARALE, J. 18TH APRIL, 2011. Heard the learned Counsel for the applicants and learned APP for the respondent/State. By way of present application, the applicants are seeking challenge to the order dated 12.10.2010 passed by the learned Additional Sessions Judge, Akola in Miscellaneous Civil Application No. 46 of 2010. The brief facts giving rise to filing of the present application are as under :- On complaint dated 03.10.2004 lodged by the father of applicant No.1, namely, Bansidhar Khandelwal that some unknown persons entered his house and committed robbery, as such offence punishable under Section 395 of the Indian Penal Code came to be registered against them. On collecting the material, the investigating agency filed the charge sheet. Learned Ad-hoc Additional Sessions Judge, Akola vide judgment and order dated 08.09.2009, acquitted accused No.1 – Dilipsingh Baware, accused No.2 – Triloksingh Juni and accused No.6 – Roshansingh Juni of the offence punishable under Section 395 of the Indian Penal Code. It was further directed in the said judgment and order that the mudeemal property produced vide V.P. No. 22/2008 and exhibited Article-A to V etc. be returned to the legal representatives of complainant, who is reported to be dead, after appeal period, on executing a bond worth value of the property to produce it before Court as and when called for, as the case against accused Nos.3, 4, 5 and 7 is on dormant file. 2 The applicants claiming themselves to be the legal heirs of deceased Bansidhar Khandelwal, filed an application for delivery of muddemal property. Learned Additional Sessions Judge, Akola vide order dated 12.10.2010, directed to return the muddemal property A to V to the applicants or their constituted attorney on their executing the bond of the amount of value of the articles to be returned to the applicants to be assessed by the Goldsmith at the costs of the applicants subject to condition that they shall produce the muddemal property before the Court as and when called for as the case against accused Nos.3, 4, 5 and 7 is on dormant file. Shri R.L. Khapre, the learned Counsel appearing on behalf of the applicants, submits that by the said order, the learned Additional Sessions Judge directed to return the muddemal property A to V to the applicants. He further submits that those were the 22 articles i.e. referred to as Articles-A to V including a mobile phone and certain golden ornaments. Learned Counsel further submits that apart from these articles, there were 12 more articles as per separate list vide Schedule-B which includes golden articles, cash amount, mobile charger and telephone diary. He vehemently argues that the learned Additional Sessions Judge, Akola, vide judgment and order dated 08.09.2009, specifically ordered to return the property mentioning as “exhibited Article-A to V etc.” and as such the applicants were entitled for receiving the other 12 articles also. Learned Counsel further submits that the learned Additional Sessions Judge, Akola has not directed to return those articles and the order dated 12.10.2010 is an erroneous order. He, therefore, prays for direction to the learned Additional District Judge, Akola for modification of the order dated 12.10.2010 thereby directing to return the property mentioned in Schedule-B of V.P. No.22/2008 to the applicants. Learned Counsel for the applicants, in support of his submission, submits that under Section 482 of the Code of Criminal Procedure, the course open for the learned Additional Sessions Judge on the application of the applicants was, directing 3 under Section 452(3) to the Chief Judicial Magistrate for delivering the property. For ready reference, Section 452(1) and (3) are quoted herewith. “452. Order for disposal of property at conclusion of trial – (1) When an inquiry or trial in any 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 any offence appears to have been committed, or which has been used for the commission of any offence. (2) … (3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.” Shri P.V. Bhoyar, the learned APP appearing on behalf of the respondent/State, strongly opposes the prayer of the applicants. In view of the aforesaid controversy, I have heard the learned Counsel and learned APP at length. Perused the material placed on record. The judgment and order passed by the learned Additional Sessions Judge, Akola in Sessions Trial No. 44/2005 shows that on 03.10.2004 at about 03:00 to 03:30 a.m., robbery was committed in the house of the complainant. It is observed by the learned Sessions Judge that except the evidence of Maheshkumar Khandelwar (PW-1) and Richa Khandelwal (PW-2), there is no direct evidence to the incident. The learned trial Judge observed that four persons who have entered the house of Maheshkumar had muffled their faces. The learned trial Judge, on consideration of evidence, found that the evidence of both the witnesses to the incident is of no help in respect of nexus of the accused with the crime in question. 4 It is important to refer to the identification of the muddemal property. Learned Sessions Judge found that only Richa Khandelwar (PW-2) identified part of the muddemal property Article-A to V in the Court. It is observed by the learned trial Judge that Maheshkumar (PW-1) was unable to identify the seized muddemal property. It is further observed that Richa (PW-2) stated that muddemal property Article-A to V was identified by her at Warora and also in the Court. She has also stated in her cross examination that muddemal property like Article-A to V is not available in the market. She further stated that Article-B to V would not be available in the market as they are having special design. In view of the aforesaid facts, it is clear that the only witness Richa (PW-2) had identified the articles referring to the muddemal property Article-A to V. The applicants, by taking undue advantage of the word “etc”, are seeking release of the other property. Perusal of the material further shows that there were two separate lists prepared and referred in the report of the Superintendent, District Court, Akola while giving information about the muddemal property. In view of the facts mentioned above, I am unable to accept the submission of learned Counsel for the applicants that the applicants are entitled to receive the other 12 articles. Though the learned Counsel for the applicants submits that in view of the provisions of Section 452(3), the learned Sessions Judge ought to have directed the learned Magistrate to verify the lists and then pass the order for returning of the property, I find no merit in the submission of the learned Counsel for the reason that Section 452 would come into play after the trial is concluded. Learned APP submits that in the present case, the trial is separated against accused Nos.3, 4, 5 and 7. The case against accused Nos.3, 4, 5 and 7 is kept on dormant file. He submits that in view of this fact, as the trial is not concluded as against those other absconding accused, Section 452(3) would not come into play. 5 I find considerable merits in the submission of learned APP. On considering the material, I am of the opinion that no fault can be found with the order dated 12.10.2010 passed by the learned Additional Sessions Judge, Akola in Miscellaneous Criminal Application No. 46/2010. In the result, the application is rejected. JUDGE *rrg.