JUDGMENT
N.L. Tibrewal, J.
1. This appeal is directed only against a part of the order passed by the learned Addl. Sessions Judge, Udaipur in Criminal Appeal No. 68/1976, so far it relates to the delivery of one necklace of gold.
2. The facts of the case are that, in the night intervening 23rd and 24th of May 1970, theft of various articles was committed in the house of appellant Kurban Ali Bohra. Several articles are alleged to have been taken away by the miscreants including one necklace of gold. The case was registered on 24-5-70 at Police Station Dhanmandi (Udaipur). The police submitted charge-sheet against 9 accused persons, including respondent Hasanshah. All the nine accused faced trial and the learned Magistrate after completion of the trial, vide judgment dated 1-12-75, convicted the respondent Hasanshah and other co-accused persons under Section 411, IPC. As we are not concerned with the finding of conviction of the accused persons, I need not go in details about the merits of the case. However, it may be submitted that the learned trial Magistrate directed that the recovered articles, including the necklace, should be delivered to the owner, i.e. the appellant Kurban Ali.
3. Hasanshah-respondent No. 2, feeling aggrieved against his conviction and sentence, preferred an appeal which was heard and disposed of by the learned Addl. Sessions Judge, Udaipur. The learned Addl. Sessions Judge acquitted him vide judgment dated February 14, 1979. The learned Addl. Sessions Judge further reversed the order of the delivery of necklace, in question, as well as ear tops, as passed by the learned Magistrate and ordered that these articles be given to the accused respondent-Hasanshah.
4. Aggrieved against the said order of the learned Addl. Sessions Judge, so far it relates to the delivery of necklace only, the complainant Kurban Ali filed this appeal, but on his death during the pendency of the present appeal, his legal heirs Abbas Ali and others have been substituted.
5. The learned counsel for the present appellants, who are legal heirs of Kurban Ali, has vehemently contended that the order of delivery of gold necklace to the accused respondent No. 2, as passed by the learned Addl. Sessions Judge, is wholly erroneous, in as much as, there was sufficient material on record to show that the said necklace belonged to the complainant Kurban Ali. He further contended that the learned Magistrate had passed the order for delivery of necklace in favour of the complainant, as such, if the said order was to be reversed by the learned Addl. Sessions Judge in appeal preferred by Hasanshah, then notice should have been given to the complainant Kurban Ali or his legal heirs as there was an order in their favour which was passed by the Magistrate. He further submitted that, otherwise also, the principles of natural justice required that no order adverse to a party should be passed and no order in favour of a party should be reversed by the appellate Court, without giving him an opportunity of hearing. In this connection he placed reliance on State Bank of India v. Rajendra Kumar Singh, (AIR 1969 SC 401) : (1969 Cri LJ 659).
6. On the other hand, the learned counsel for respondent No. 2, Mr. Mehta submitted that no notice was required to be given to the complainant as no notice was given in the trial court also. According to Mr. Mehta, if the complainant was interested to participate in the appeal he himself could have appeared suo motu and there is no provision in Cr.P.C. which required any notice to the complainant.
7. The learned Public Prosecutor, however, supported the arguments advanced by the learned counsel for the appellant that a notice should be given to the complainant or his legal heirs, as the case may be, in case the lower appellate court wanted to reverse the order of the learned Magistrate, for delivery of necklace.
8. I have given my thoughtful consideration on the rival contentions made by the learned counsel. I need not go in detail on merits of the case, as I am of the view that this appeal can be disposed of on a limited question of law that the learned Addl. Sessions Judge committed an error of law in reversing the order for delivery of necklace, which was passed in favour of complainant, without giving him any notice of hearing.
9. In State Bank of India v. Rajendra Kumar Singh (supra), a similar question arose before the Hon’ble Supreme Court as to whether any notice should be issued or a hearing should be given to a party adversely affected. In the aforesaid Supreme Court judgment, the facts of the case were that in a criminal case some Currency Notes of Rs. 21,000/- were seized during the investigation of a criminal case registered under Sections 420, 406 and 120B I.P.C. The learned trial court, in that case, acquitted the accused persons and directed that the currency notes be given to the State Bank of India. Against the order of acquittal, the State of Madhya Pradesh filed the appeal before the Madhya Pradesh High Court and in appeal, the High Court set aside the order of delivery of Currency Notes, which was passed in favour of the Bank and it was ordered that the same be handed over to 1st and 2nd respondent in that appeal.
10. Against the order of delivery of the currency notes, the State Bank of India preferred an appeal before the Hon’ble Supreme Court. The argument before the Hon’ble Supreme Court was that the High Court had reversed the order of the Sessions Judge, directing the return of the currency notes to the Bank without giving any notice and opportunity of being heard to the Bank. The argument was stressed that there was a violation of the principles of natural justice, as such, the order of the High Court, reversing the order of the trial court about delivery of currency notes was illegal.
11. On behalf of the opposite party, a similar contention was raised that there was no provision in Cr.P.C. for giving such notice to the affected parties. The Hon’ble Supreme Court rejected this contention and observed as under (at page SC 403; AIR 1969) :–
“In our opinion, there is no warrant or justification for the argument advanced on behalf of the respondents. It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.”
12. Hon’ble Supreme Court made the aforesaid observations after considering the various judgments, including the leading case of Cooper v. Wandsworth Board of Works, (1863) 14 CBNS 180.
The Hon’ble Supreme Court then further observed :–
“Applying the principles to the present case it is manifest that the High Court was bound to give notice to the appellant before reversing the order of the Sessions Judge directing the disposal of the property under Section 517 of the Code of Criminal Procedure. As no such notice was given to the appellant, the order of the High Court dated 5th April, 1963 is vitiated in law.”
13. The aforesaid principles equally apply in this case also. As stated above, the trial Magistrate had passed the order in favour of the complainant Kurban Ali regarding delivery of articles including the necklace in question. The said order was reversed by the learned Addl. Sessions Judge in appeal, preferred by respondent Hasanshah, in which no notice was given to Kurban Ali, who was the affected party. Thus the said order of the learned Addl. Sessions Judge is not sustainable on this ground alone.
14. From the above discussions, I am of the considered view that an affected party has a right to be heard in appeal against the order of delivery of property which was passed in his favour by the trial court. If any order is reversed by the appellate court, without any notice to the affected party, it violates the principle of natural justice. In the instant case, trial Magistrate had passed the order of delivery of necklace in favour of the complainant. As such, it was necessary for the appellate court to give a notice and a right of hearing to him, before the said order is reversed.
15. Consequently, the order of the learned Additional Sessions Judge, so far it relates to the delivery of necklace is set aside and the case is remanded to the said court of Additional Sessions Judge, to hear the appeal only on a limited question, about the delivery of necklace, after giving notice and opportunity of hearing to the appellants as well as to the respondent No. 2 Hasanshah.
16. As counsel of both the parties are present before me and in order to avoid further delay it is directed that both the parties shall appear before the learned Additional Sessions Judge, Udaipur on 12-11-90.
17. The record of the case and a copy of the judgment be sent to the said court as early as possible.