ORDER
1. This revision by P.W. 9, is directed against the order passed by the Chief Judicial Magistrate, Madurai in C.A. No. 52 of 1985 filed under Sec. 454 Cr.P.C. reversing the order passed by the Judicial Second Class Magistrate, Palani and directing the return of M.Os. 1 and 2 to first respondent herein.
2. M.Os. 1 and 2 are two items of gold jewellery weighing 62 grams, which were involved in C.C. No. 542/82 on the file of the Judicial Second Class Magistrate, Palani. The case had been instituted on a charge sheet filed by the police, the second respondent herein, on a complaint given by the first respondent for an offence under section 379 I.P.C., During the investigation, the M.Os. had been recovered by the police from the petitioner who was examined as P.W. 9 during trial. The accused in the case had been acquitted on 19-12-1984 and by order dated 31-12-1984 the learned Magistrate had directed return of M.Os. 1 and 2 to the petitioner herein. The first respondent filed C.A. No. 36/85 under section 454 Cr.P.C. before the Sessions Judge, Madurai, who transferred it to the Chief Judicial Magistrate, Madurai, who in turn took it on his file as C.A. No. 52/85. The petitioner was not made a party in the above appeal. After hearing both the respondents who alone were parties in the appeal, the learned Chief Judicial Magistrate allowed the appeal and directed M.Os. 1 and 2 to be returned to the first respondent. Challenging the above order, this revision has been filed by P.W. 9.
3. Thiru Jagadeeswaran, learned counsel for the petitioner urged two contentions. According to the learned counsel the learned Sessions Judge ought not to have transferred the appeal under section 454 Cr.P.C. to the Chief Judicial Magistrate, since it was not in accordance with Section 381 Cr.P.C. and consequently the Chief Judicial Magistrate had no jurisdiction to deal with the appeal and pass orders thereon. The matters therefore, had to be remitted to the sessions Judge to be disposed of by him. The second contention of the learned counsel was that, the petitioner against whom an adverse order has been passed in C.A. No. 52/85 was not made a party in that appeal and had not been heard, which was in violation of the principles of natural justice as also the law laid down by the Supreme Court.
4. Thiru Dinakaran, learned counsel for the first respondent and the learned Public Prosecutor for the second respondent were also heard.
5. Both the contentions of the learned counsel for the petitioner have to be accepted. The initial order passed by the trial Court was under Section 452 Cr.P.C. and the appeal preferred by the first respondent was under section 454 Cr.P.C. Section 381 would show that appeals are to be heard by the Sessions or the Additional Sessions Judge and sub-section (2), enables an Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate, to hear such appeals as are made over to them by the Sessions Judge. The proviso to Section 381(1) Cr.P.C. indicates the nature of appeals that could be heard by the Assistant Sessions Judge or the Chief Judicial Magistrate. According to the said provision they shall hear appeals against convictions of trial held by a Magistrate of the Second Class. A reading of all these provisions would show that only appeals included in the above proviso, namely arising against conviction on a trial held by a Magistrate of the Second Class, could be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate. It is only these appeals that could be made over to them by the Sessions Judge. An appeal under section 454 Cr.P.C. is not an appeal against a conviction on a trial held by a Magistrate of the Second Class. Such an appeal, therefore, cannot be made over by a Sessions Judge, either to the Assistant Sessions Judge or to the Chief Judicial Magistrate and neither the Assistant Sessions Judge nor the Chief Judicial Magistrate would have jurisdiction to hear an appeal under Section 454 Cr.P.C. On this aspect I agree with the decision relied on by the learned counsel for the petitioner in Srinivasan K. N. v. S.I. Pennalurpet and another, 1987 Mad LW Crl 95, where in a learned Judge of this Court had taken the above view. The Chief Judicial Magistrate Madurai, therefore, had no jurisdiction to hear and dispose of C.A. No. 52/85 filed under section 454 Cr.P.C. His order, has to be set aside.
6. The order of the learned Chief Judicial Magistrate would show that the present petitioner was not made a party in the above appeal and he had not been heard. The state alone had been impleaded as respondent and had been heard. It is necessary that before an adverse order is passed against the party, he should be heard. It is not known why the first respondent did not choose to make the petitioner a party in the Criminal Appeal particularly when in Criminal Miscellaneous Petition No. 2383/85 filed by him in this Court under Section 482 Cr.P.C. against the initial order passed by the Judicial Second Class Magistrate, Palani, he had made the petitioner a party. Whatever that be, the Supreme Court in State Bank of India v. Rajendrakumar Singh and others, set aside the order of the High Court, which had reversed the order of the Sessions Court passed under section 517 (Sec. 454 of the present Code) without giving notice to the person to whom the property was directed to be delivered by the Sessions Court. The Supreme Court observed that though the Criminal Procedure Code was silent and did not expressly require issue of any notice, there was in the eye of the law, a necessary implication that the parties adversely affected should be heard before the Court made an order of return of the seized property. The order passed by the learned Chief Judicial Magistrate without hearing the petitioner has to be struck down on this ground as well.
7. In the result, the revision is allowed, the order passed by the learned Chief Judicial Magistrate, Madurai in C.A. No. 52 of 1985 is set aside, and the matter is sent to the Sessions Judge, Madurai, North at Dindigul to be dealt with as an appeal under section 454 Cr.P.C. after giving notice to the present petitioner as well.
8. Revision allowed.