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CR.A/1120/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1120 of 2011
=========================================================
LALAJI
SARDARJI THAKORE - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MS
NEETA J MERCHANT for
Appellant(s) : 1,MR PRATIK B BAROT for Appellant(s) : 1,
PUBLIC
PROSECUTOR for Opponent(s) : 1,
None for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 29/09/2011
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
challenge in this appeal is to the order regarding disposal of
muddamal articles made in the impugned judgment and order dated 13th
October, 2006 rendered by the learned Additional Sessions Judge,
Fast Track Court, Deesa, in Sessions Case No. 48 of 2006, whereby,
the learned Additional Sessions Judge directed the muddamal articles
to be destroyed.
Mr.
Pratik B. Barot, learned advocate appearing for the appellant
submitted that the trial court by the judgment and order dated 13th
October, 2006, recorded acquittal of all the accused persons,
including the appellant, of the offences punishable under Sections
306, 498A and 114 of Indian Penal Code. During the course of the
investigation, certain valuable muddamal articles like gold and
silver ornaments came to be seized. The trial court appears to have
committed bonafide mistake while directing destruction of all the
muddamal articles including valuable golden and silver ornaments.
Mr.
Kartik Pandya, learned Additional Public Prosecutor, appearing on
behalf of the respondent no.1 State submitted that there is no
dispute that in the instant matter, during the course of the
investigation, when the dead body of the deceased was sent to
hospital for postmortem, certain valuable golden and silver
ornaments which were on the body of the deceased came to be seized
as muddamal articles. Mr. Pandya submitted that there appears to be
a bona fide mistake on the part of the trial court in issuing
direction regarding destruction of all the muddamal articles. Mr.
Pandya, however, submitted that the proper course open for the
appellant is to apply before the trial court itself for obtaining
appropriate order under Section 452 of the Code of Criminal
Procedure, 1973 [“the Code” for short] regarding
disposal of the valuable muddamal articles.
There
is no dispute that during the course of the investigation, valuable
golden and silver ornaments came to be seized as referred in the
list annexed at Annexure:B with the memo of this appeal. The trial
court, therefore, at the time of disposal of the Sessions Case,
should not have passed order regarding destruction of all muddamal
articles, but should have conducted an inquiry as contemplated under
Section 452 of the Code for disposal of the muddamal articles for
handing over back the muddamal golden ornaments to their rightful
claimant or claimants. Under such circumstances, this Court is of
the opinion that instead of entertaining and allowing the appeal and
deciding the issue regarding delivery of muddamal ornaments to the
rightful claimant, it would be in the interest of justice if the
appellant is directed to move the concerned trial court under
Section 452 of the Code for obtaining appropriate order as
apparently the impugned order passed by the trial court in the
judgment and order regarding destruction of muddamal articles
including valuable golden and silver ornaments appears to be an
error apparent on the record committed by the trial court.
In
the above view of the matter, the appellant is directed to move the
concerned trial court under Section 452 of the Code of Criminal
Procedure, 1973 seeking relief of appropriate disposal of muddamal
articles, more particularly, golden and silver ornaments. The trial
court shall hold appropriate inquiry and hear the appellant as well
as the original complainant and shall pass appropriate order as
contemplated under Section 452 of the Code.
The
appeal is accordingly disposed of with the above directions.
[D.H.WAGHELA,
J.]
[J.C.UPADHYAYA,
J.]
pirzada/-
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