JUDGMENT
B.K. Behera. J.
1. The two appellants herein figured as P. Ws. 5 and 8 in Sessions Case No. 13 of 1981-B in the Court of the Sessions Judge, Ganjam, Berhampur. It had been alleged that two of the accused persons had removed gold ornaments from the person of the deceased Kanta Phula and had handed over the Articles to P. Ws. 5 and 8. All the accused persons were acquitted.
2. P. W. 3, the husband of the deceased, who was the first informant, had identified a gold necklace (M. O. II) and gold nose rings (MO III) as belonging to the deceased. He had identified these articles in the Court and at a prior test identification parade. In the course of investigation, M O. II had been recovered from the possession of P. W. 8 who had claimed it as belonging to her and M. O. Ill had been recovered from the person of P. W. 5 who had claimed this article to be hers. At the conclusion of the trial, the learned Sessions Judge has passed an order for return of M. Os. II and III to the first-informant. This order has been assailed by P. Ws. 5 and 8 in this appeal under Section 454(1) of the Code of Criminal Procedure (for short, the ‘Code’). We have heard the learned counsel for the appellants and the learned Additional Standing Counsel for the State.
3. It has been submitted on behalf of the Appellants that the learned trial Judge ought to have passed an order for return of M. O. II to P. W. 8 and M. O. Ill to P. W. 5. The first-informant has not entered appearance in this Court in spite of service of notice on him.
4. Here is a case in which claims had been made by P. W. 3 first-informant and P. Ws. 5 and 8 with regard to M. Os. II and Ill. The learned trial Judge was required to pass a judicial order regarding disposal of these articles at the conclusion of the trial after taking into consideration the evidence with regard to the ownership of the articles and recording a specific finding as to whether the first informant or P. Ws. 5 and 8 were entitled to the return of the articles. No specific finding has been recorded by the learned trial Judge with reference to the evidence. Before an order under Section 452 of the Code for return of articles identified and marked in the Court is made, it would be proper on the part of the trial Judge to record a specific finding with reasons for the benefit of the higher Court as an order passed under Section 452 of the Code is appealable.
5. It is necessary to direct an inquiry with regard to the ownership of M. Os. II and III before the articles are disposed of. When such a situation arises and there have been conflicting claims and it is not quite clear from the evidence as to who the owner is, it would be open to the Court of Session under Section 452(3) of the Code to direct the property to be delivered to the Chief Judicial Magistrate who shall thereupon deal with it in the manner provided under Sections 457, 458 and 459 of the Code. As no specific finding has been recorded by the learned Sessions Judge with regard to the ownership of M. Os. II and III and we consider it just and reasonable to direct further inquiry, it would be appropriate, as has been submitted by the learned counsel for both the sides, to take recourse to Section 452(3) of the Code.
6. In the result, we would allow the appeal, vacate the impugned order with regard to the return of M. Os. II and III and direct that these properties be delivered to the Chief Judicial Magistrate, Ganjam, Berhampur, to proceed in accordance with law as provided in Section 452(3) of the Code of Criminal Procedure after giving due notices to the first informant, P. Ws. 5 and 8 and the State and after affording to them an opportunity of being heard.
G.B. Pattnaik, J.
7. I agree.
