The Revision Petitioner/Defacto Complainant has preferred the instant Criminal Revision Petition before this Court, as against the order, dated 8/12/2015 passed in Crl.M.P.No.990 of 2015, in Crime No.148 of 2015 by the Learned District Munsif-cum-Judicial Magistrate, Omalur, Salem District.

2. The Learned District Munsif-cum-Judicial Magistrate, Omalur, Salem District, while passing the impugned order in Crl.M.P.No.990 of 2015 (filed by the Revision Petitioner/Defacto Complainant as petitioner), at paragraph 4, had inter alia observed that ... In the present petition, the gold jewels sought for by the petitioner is of different varieties and in receipt note book produced by the petitioner and in note books, the weight of the jewels and the weight of the jewels produced by the Investigating Officer, there is a difference and further, in the complete statement of the Petitioner, the Petitioner had only stated a sum of Rs.4,50,000/- alone was lost by means of theft and also in the Petition, only a sum of Rs.8,57,520/- was only prayed for to be returned and added further, in respect of the aforesaid amount/money, one Narayanan had filed Crl.M.P.No.2722 of 2015, claiming the entire amount and the said petition is also pending and also that no one statement from the witnesses was produced before the Court by the Investigating Officer and also since the Investigation is not yet completed and also that the Accused are absconding and at the time of enquiry of the Sessions Court, the jewels which were pledged in different pawn shops and as such they were not to be handed over and since the Accused were also involved in other cases and in the other cases, the case related jewels are to be produced and there is a possibility to produce the same and when the theft of 300 sovereigns is said to be and when the Investigating Officer had produced, the different types of jewels weighing 350 sovereigns and also in the form of gold in bars and in respect of silver articles, proper documents and receipts were not produced and resultantly dismissed the petition.

3. Being dissatisfied with the order of dismissal, dated 8/12/2015, in Crl.M.P.No.990 of 2015, passed by the trial Court, the Revision Petitioner/Defacto Complaint has filed the present Criminal Revision Petition, contending that the impugned order passed by the trial Court, dated 8/12/2015, is an erroneous one against Law, weight or evidence and opposed to facts.

4. The Learned Counsel for the Petitioner submits that the Petitioner is running 'SPR Bankers' and therefore, she is entitled to get back the 'Return of the stolen properties' in question.

5. The Learned Counsel for the Petitioner brings to the notice of this Court that it is a primary responsibility of the Petitioner to get back the stolen properties, all the more when she is the Defacto Complainant in Crime No.148 of 2015 on the file of the Respondent/Police. Apart from that, she had produced the document pertaining to the mortgaged receipt concerning the jewels and this vital aspect was not appreciated by the trial Court in a real and proper perspective, which has resulted in serious miscarriage of Justice.

6. The Learned Counsel for the Petitioner projects a legal argument that the individuals who had pledged the jewels with the Petitioner are pressurising the Petitioner for the return of the jewels which were stolen from 'SPR Bankers' (run by the Petitioner) and since the Mortgagors are the real owners of the jewels in question and when the said jewels were pledged with the Petitioner's 'SPR Bankers', then it is the primordial duty of the Petitioner to return back the jewels to the Mortgagors when they redeem the said jewels after paying the necessary principal sum and interest arising thereto.

7. Lastly, it is the stand of the Petitioner that the reasons assigned by the trial Court in dismissing Crl.M.P.No.990 of 2015 are not correct in the eye of Law and as such, the same are to be set aside to promote the substantial cause of Justice.

8. Per contra, it is the submission of the Learned Government Advocate (Criminal Side) for the Respondent/State that ultimately view taken by the trial Court in passing the impugned Order in Crl.M.P.No.990 of 2015 is a valid one in the eye of Law and the same need not be set aside by this Court.

9. It is to be borne in mind that under Section 451 of the Code of Criminal Procedure, at the time of disposal of the property, the property should be under the control of the trial Court. No wonder, the order passed by the Court of Law either in terms of Section 451 of the Code of Criminal Procedure or under Section 457 of the Code of Criminal Procedure are is only during the pendency of the trial or enquiry.

10. It is to be pertinently pointed out that an order passed under Section 451 of the Code of Criminal Procedure is temporary in nature. Indeed, an enquiry under Section 451 of the Code of Criminal Procedure need not be a detailed one, inasmuch as the said Section is summary in character. At the time of dealing with the Petition under Section 451 of the Code of Criminal Procedure, the Court is entitled to look into a statement under Section 161 of the Code of Criminal Procedure, recorded by the Police or under Section 25 of the Indian Evidence Act, 1872.

11. At this stage, this Court, aptly points out that in the decision YASWANT PORWAL Vs. STATE OF ORISSA {2004 Cri.L.J  2778}, it is observed and held that where gold ornaments and other valuable articles snatched by the accused from the complainant are recovered from the possession of the accused when complainant prays for return of such things, such seized articles shall be returned to the complainant after taking security and bond so as to present evidence of being lost altered or destroyed.

12. Also, in the decision VENKATARAGHAVAN Vs. STATE OF KARNATAKA & ANOTHER {2006 Cri.L.J  1571}, at special page Nos.1572 and 1573, at paragraph 4, it is observed as follows:-

The detailed panchanama of the currency notes in question should be drawn by the Registrar of the City Civil and Sessions Court, Bangalore in the presence of two panchas and in the actual and physical presence of the Presiding Officer of the trial Court.

(b). taking photograph of such currency notes at the expense of State.

The photographs of such notes shall be taken in the presence of Registrar of City Civil and Sessions Court, Bangalore and the same shall be preserved by the trial Court to be marked during trial. The trial Court should see that photographs of currency notes are attested or countersigned by the accused and respondent No.2 herein (complainant), the Registrar of City Civil and Sessions Court and two panchas.

(c). after taking self bond to the extent of about Rs.2 lakhs from complainant with one surity for the likesum.

With the aforesaid directions, Criminal Petition is disposed of.

13. Apart from that, it is to be remembered that the concept of pledge is dealt with in Section 172 and Section 179 of the Indian Contract Act, 1872. In reality, in Mulla's book on Transfer of Property Act , for the term ''pledge'', it is described as under:-

14. Section 172 of the Contract Act, provides that bailment of goods as security or payment of debt or performance of a compromise is called 'pledge'. 'Bailor' is the 'Pawnor' and 'Pawnee' is the 'Bailee'.

15. Section 148 of the Contract Act, provides that bailment is the delivery of goods by one person to another for some purpose, based on a contract that they shall, when the purpose of fulfilled, be returned or otherwise, disposed of according to the directions of the individual delivering them. The individual delivering the goods is called 'Bailor' and the person to whom the goods are delivered is 'Bailee'.

16. It is to be noted that the Honourable Supreme Court, in the decision SUNDERBHAI AMBALA DESAI V. STATE OF GUJARAT reported in AIR 2003 SC 638, laid down as follows:-

For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under S.451 , Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under S.451 , Cr.P.C., to impose any other appropriate condition. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in the bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.

17. Apart from that, even the trial Court can take a security and bond in regard to the gold/silver ornaments and other valuable articles to be returned, so as to prevent evidence of being lost or altered. Undoubtedly, the trial Court is entitled to impose necessary restrictions at the time of passing an order for return of property.

18. In the instant case on hand, the Petitioner/Defacto Complainant in a Petition under Section 451 of the Code of Criminal Procedure in Crl.M.P.No.990 of 2015 had mentioned in detail about the properties description (jewels and cash) in C.P.No.75 of 2015.

19. From the spirit and tenor of the aforesaid decision of the Honourable Supreme Court in SUNDERBHAI AMBALA DESAI V. STATE OF GUJARAT reported in AIR 2003 SC 638, it is latently and patently quite clear that at the time of handing over of the articles/return of jewels (including Gold jewels/Silver Articles, a Court of Law is quite right within its purview to prepare a panchanama in respect of the said articles and if the situation so warrants, can order for taking photographs of such articles and also issue necessary directions for executing a bond, so that the same would be required at the time of trial of the main case. It cannot be gain said that the necessary security can be taken from the concerned.

20. Admittedly, in the present case, before the trial Court in Crl.M.P.No.990 of 2015, the Revision Petitioner/Defacto Complainant had not entered into the witness box and produced any documents to be marked as exhibits/pawn tickets. Even on the side of the Respondent/Complainant, no one had entered into the witness box to repel/repudiate the plea taken on behalf of the Petitioner.

21. Be that as it may, in view of the fact that the trial Court is empowered in terms of the ingredients of Section 451 of the Code of Criminal Procedure, to return the concerned properties (both gold jewels, silver articles and cash) in C.P.No.75 of 2015 and also this Court bearing in mind a prime fact that the trial Court as a matter of prudent care, caution and with utmost circumspection can permit the parties to let in oral and documentary evidence by examining witnesses in the manner known to Law and in accordance with Law and in short, this Court, taking note of the attendant facts and circumstances of the present case in a conspectus fashion, comes to a consequent conclusion that the impugned order, dated 8/12/2015, passed by the trial Court, in Crl.M.P.No.990 of 2015, is not in consonance with the principles laid down by the Honourable Supreme Court, in the decision SUNDERBHAI AMBALA DESAI V. STATE OF GUJARAT reported in AIR 2003 SC 638 and on this score, to prevent the aberration of Justice, interferes with the said order and sets aside the same.

22. In the result, this Criminal Revision Case is allowed and the order passed by the trial Court in Crl.M.P.No.990 of 2015 is set aside by this Court, for the reasons assigned in this Criminal Revision Petition. Further, the trial Court is directed to restore Crl.M.P.No.990 of 2015 to file and to pass a fresh, reasoned, speaking order, on merits, in a dispassionate manner, uninfluenced and untrammeled with any of the observations made by this Court, within a period of three weeks, from the date of receipt of a copy of this order. It is made clear that the trial Court shall provide enough opportunities to the respective parties to let in oral and documentary evidence and the parties are to avail the same, if they so desire/advised. Also that the trial Court is to bear in mind the principles governing the ingredients of Section 451 of the Code of Criminal Procedure, relating to the return of properties and to pass necessary orders diligently within the time adumbrated supra.

25/4/2016 mvs.

Index: Yes website: Yes To

1. The District Munsif and Judicial Magistrate Court, Omalur, Salem District

2. The Inspector of Police Deevattipatty Police Station Salem District.

M.VENUGOPAL,J mvs.

Criminal Revision Case No. 282 of 2016 25/4/2016