1

2026:CGHC:10684

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 653 of 2005

Reserved on 11/02/2026

Delivered on 02/03/2026

1 - Buddha Prakash Soni (Died) Through Legal Heirs-

1.1 - Kamal Soni S/o. Late Buddha Prakash Soni. R/o Mochiwara, Near

Sankhat Bhawan, Behind Fort, Tehsil And District Churu (Rajasthan)

1.2 - Deepak Soni S/o Late Buddha Prakash Soni, R/o Mochiwara, Near

Sankhat Bhawan, Behind Fort, Tehsil And District Churu (Rajasthan)

1.3 - Smt. Kiran Devi Soni W/o Late Buddha Prakash Soni, R/o

Mochiwara, Near Sankhat Bhawan, Behind Fort, Tehsil And District

Churu (Rajasthan)

... Appellants(s)

versus

1. State Of Chhattisgarh Through District Magistrate, Raigarh

2. Ganeshram Kewat S/o Setram Kewat Aged About 19 Years Occupation

Labour R/o Village Kekrabhata P.S. Dabhara

3. Radheshyam Chandra S/o Lakhanlal Chandra Aged About 25 Years Occ.

Agriculturist R/o Village Kansha P.S. Kharsia

4. Amrit Lal Satnami S/o Sudhram Satnami Aged About 19 Years

Occupation Agriculture/labour R/o Village Badhanpali.

5. Nazirkhan S/o Asarkhan Musalman Aged About 19 Years Occupation

Agriculture/ Labour R/o Village Ucchabhinda, Dabhara.

6. Joshikram Chouhan S/o Shobharam Chouhan Aged About 30 Years Occ.

Labour R/o Village Kekrabhata Dabhara.

7. Subbadas Mahant S/o Teejdas Mahant Aged About 21 Years Occ. Labour

R/o Village Ucchabhinda, P.S. Dabhara.

2

8. Shivlal @ Sanju Chouhan S/o Dayalu Chouhan Aged About 19 Years

Occupation -Labour R/o Village Kekrabhata P.S. Dabhara.

... Respondent(s)

For Appellant (s): Mr. Amit Soni, Advocate

For Respondent(s): Mr. Sanjeev Pandey, Dy. AG along with

Mr. Manish Kashyap, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas

CAV JUDGEMENT

1.This criminal appeal under Section 454 of Cr.P.C. has been filed against the

order dated 21.07.2005 passed by Fourth Additional Sessions Judge (FTC),

Raigarh in Criminal Case No. 63 of 2005, whereby the application filed by

the appellant/complainant under Section 452 of CrPC arising out of the

judgment dated 14.06.2005 passed in Sessions Case No. 141/2004 has

been rejected in which all the accused have been acquitted of the charges

by the trial Court. During pendency of the appeal, complainant Buddha

Prakash Soni expired, therefore, his legal representatives are substituted in

his place as appellants.

2.Facts of the case, in brief, are that, a Criminal Case No. 141 of 2004 was

initiated against the accused/respondents for commission of offence under

Sections 395 and 412 of IPC on the complaint of the complainant alleging

that on 15.08.2003 at about 7.00 PM in the evening, when he was returning

to village from Bhatgaon market with his son Kamal Soni on the motorcycle

and they reached near Bodri road then the accused/respondents who were

seven in number committed robbery of 15 kg silver, 5 tola gold and cash Rs.

4000/- total worth of Rs. 1 lakh from his possession.

3

3.During investigation, memorandum statements of the accused/ respondents

under Section 27 of the Indian Evidence Act were recorded and on the

memorandum statement of the accused silver and gold ornaments were

recovered from their possession as per property seizure which were

exhibited as Ex.P-20, Ex.P-27, Ex.P-17, Ex.P-23, Ex.P-24 and Ex.P-18,

Ex.P 19. The complainant identified the article under (Ex.P-8) on

21.07.2004. Jeweller Rajesh Kumar Soni has identified the silver and gold

articles under (Ex.P-21) and issued certificate of 13

th

articles (Ex.P-21).

According to which, total weight of articles was 1380 gram worth of Rs.

11,000/-.

4.The details of property seized from each of the accused as per property

seizure memos are given in the tabulate form as under:-

Sr.

No

.

Statements of Accused

under Section 27 of the

Evidence Act.

Property seized

1.Ganeshram Kewat 1- ,d tksM+h dh iSj iV~Vh >kyj ?kqa?k: okyh isp yxk ekdkZ

[kq’kcw otu 120 xzke dh 1200 :

2- ,d tksM+h pkanh dh dh iSj iV~Vh ?kqa?k: okyh otu 45 xzke

dh 450 :

3- 3 ux fcfN;k pkanh dh yky jax dh ehuk yxk gjk xqykch

jax dh cwan okyh ehuk yxk otu 12 xzke dh 120 :

4- ,d pkanh dh vaxwBh yky jax dh ux yxk gqvk A otu rhu

xzke dh 30 :

2.Radheshyam Chandra 1- ,d tksM+h ?kq?kjh okyh ik;y iqjkuk pkanh dk otu 140

xzzkke djhc

2- ,d tksM+h iSj iV~Vh isp okyh iqjkuk pkanh dk otu 70 xzzkke

djhc

3- ,d tksM+h iSj iV~Vh pkanh dk iqjkuk ehuk yxk otu 50 xzzkke

djhc

4- ,d tksM+h iSj iV~Vh ehuk yxk iryk lkbt pkanh dk iqjkuk

otu 24 xzzkke djhc

4

5- ,d tksM+h iSj iV~Vh ehuk yxk uax yxk pkanh dk iqjkuk

out djhc 30 xzzkke

6- 15 ux pkanh dk iSj iV~Vh vyx&vyx tksM+h dk lkbt

fMtkbu vyx 2 gSA ftlesa 3 ux esa ehuk yxk ,d ux esa

fVdyh>wy 2 ux isp okyh 9 ux dM+k okyh gSA otuh djhcu

380 xzke

7- ,d ux pSu okyh iSj iV~Vh VqVk gqvk pkanh dk otu 10

xzke

8- ,d pkanh dk xyk dk cuk;k FkDdk yksjh pkSdj otuh 700

xzke djhc dherh 7000 : lkbt 11 x 2

3.Amrit Lal Satnami 1- 2 ux pkanh dh pwM+h fMtkbunkj otuh 35 xzke dh 350 :

2- 3 ux iSj esa igus okys pkanh dh fcfN;k yky gjk xqykch jax

dh ehuk yxk gqvk ,d lkFk pSu esa Qals gq, otu 12 xzke dh

120 :

3- ,d pkanh dh vaxqBh vaxzsth ds Vh fy[kk gqvk tehu jax dkys

jax fMtkbunkj otu 3 xzke 30 :

4.Nazirkhan 1- ,d IykfLVd dh >ksyk ¼Ukk;yksu½ ftles lQsn gRFkk uhyk

jax dh /kkjh cuk gS idM+us dh LFkku QVk gqvk gSA

2- IykfLVd >ksyk ds vanj ,d lQsn IykfLVd fMCck esa j[kk

gqvk pkanh ljh[ks /kkrw ls cuh tsoj Hkjh gSA

3- ,d tksM+h pkanh ds ik;tsc otuh djhcu 320 xzke gSA 5-5]

tSls fMtkbZu cuk gS ?kqa?k: yxk gSA

4- ,d tksM+h pkanh dk yPNk otuh djhcu 3-40 xzke ftldh

chp esa bZV Nki fMtkbZu cuk gS 3 ijr gSA

5- ,d pkanh dk gkQ dj/ku otuh djhcu 125 xzke ftles

yky ,oa gjs jax dh ehuk yxk gqvk gSA

6- 8 ux pkanh dk ik;y ,d ux ftldh tksM+ es RJ fy[kk gS

xksy fMtkbZu cuk gqvk gS ,d ux ik;y 'kjn 100 fy[kk

gS ,d tksMh flxy yjhokyk ftles vxzoky fy[kk gqvk ,d

tksM+h ik;y ftlesa dSyk’k fy[kk gS ,d tksM+h ik;y ftles RP

ekdZ 100 vxzoky fy[kk gqvk yky gjk ehuk yxk gSA

7- nks ux paknh dh pSu ftlesa S,S,S fMtkbu cuh gS ,d

eksVh ,d iryh gSA otuh djhcu 50 xzke gSA

8- rhu ux pkanh dh fcfN;k ftles ,d esa xqykch jax dk ux

yxk ,d esa gjs xqykch ehuk yxk ftles R.P.J. ekdZ ,d

5

fcfN;k bZV Nki otuh tweyk djhc 10 xzke gSA

9- ,d pkanh dh rkj esa dkys jax dh fizLVy eksrh dh ekyk

otuh djhcu 20 xzke

10- ,d pkanh dk xkSByk nkuk otuh 1 xzke gksxkA

11- ,d pkanh dh ik;y otuh ½ xzke gSA

12- ik;y dh pkanh dh ?kaq?k: otuh djhcu ½ xzke gSA

13- nks ux lksus dh uFkuh ftles nksuks esa yky jax dk uax yxk

gqvk gS otuh djhcu 1 xzke gSA

14- nks lksus dh ukd dh QqYyh Qsalh fMtkbu dh otuh ½ xzke

gSA

15- ,d lksus dh NksVh ukd dh QqYyh ftlesa lQsn jax

vesfjdu Mk;eaM ux yxk gqvk gS otuh djhcu ½ xzke gSA

pkanh dh tsoj dh tqeyk otuh 1100 xzke gSA

5.Joshikram 1- ,d ckDlj eksVj lk;dy K ctkt dIiuh dh ftldk

esg:u dyj gS jftLVªs’ku u0 CG13-1189 gS psfll u0 DFFBGH-

36422 ,oa batu u0 DFF DGH-67029 gSA

2- ,d IykfLVd dh NksVh fMCck ftles pkanh lfj[ks /kkrw ds

tsoj Hkjh gS tksfld ds isaV dh nk;s tsc essa ls fudkydj nsus

ijA tsoj fuEukuqlkj gSA

3- ,d tksM+h pkanh dh ik;y otu djhcu 80 xzke ftles

RK/SPL fy[kk gqvk gS ,d ik;y esa ydM+h yxh gSA

4- ,d pkanh dk ik;y otuh djhcu 50 xzke RJ 1 fy[kk gqvk

dyj okyh gSA

5- ,d ux pkanh dk ik;y otuh djhcu 20 xzke ftles 'kjn

100 fy[kk gqvk dyj okyh gSA

6- ,d pkanh dh exaylw= otuh djhcu 50 xzke ftles iku

Nki dk ykWdsV ehuk ?kqa?k: yxk gqvk xqykch gjk yky jax dh

gS A

7- ,d pkanh dh pSu otuh 10 xzke ftles tksM+ ij sAA fy[kk

gSA

8- nks ux pkch dM+k otuh 25 xzke ehuk yxk gSA

9- rhu tksM+k cPpksa dk pqM+k otuh 12 xzke gSA

10- ,d xksByj pkanh dk otuh 1 xzke gksxkA

11- pkj ux pkanh dk pUnzek otuh 4 xzke gSA

12- rhu vaxwBh ftlesa xqykch ux yxh gS otuh 10 xzke ¼pkanh

dh½ gSA

6

13- rhu iq:"k vaxwBh pkanh dh otuh tqeyk 9 xzke nks esa ux gS

,d pkSdksj gSA

14- nks ux ysfMl vaxwBh otuh djhcu 10 xzke ftles ,d esa

yky jax dk ux yxk ,d lknk gSA

15- ,d ux dku dk >qedk otuh djhcu 3 xzke ftlesa pSu

yxh gqbZ gSA

16- ,d fcfN;k pkanh dh bZV Nki gS otuh 2 xzke gSA

17- ,d pkanh dh ykWdsV 1 xzke ftles yky] gjk] uhyk ehuk

yxk gqvk gSA

18- ,d dku dk VkIl ½ xzke flEiy xksykdkj gSA

6.Subbadas Mahant 1- rhu ux pkanh dk iSj iV~Vh ftles ,d tksM+h 2 ux

lknk ,oa 1 ux

?kqa?k: okyh isp yxk GS fy[kk otu 145 xzke dh 1450 :A

2- 2 ux pkanh dk vaxwBh gjk yky jax dk ehuk yxk gqvk A

fcfN;k fMtkbu dk otu 3 ½ xzke dh 30

3- ,d ux pkanh dk fcfN;k yky xqykch gjs jax dk ehuk yxk

Qqy fMtkbu dk otu 2 xzke dh 20

4- ,d yksgs dk pkdw uqdhyk /kkjnkj

7.Shivlal @ Runjhu 1- ,d esa tqM+s 3 ux iSj esa iguus dk fcfN;k pkanh dk ehuk

yxs otu 7 xzke dh 70 :

2- 2 ux pkanh dh vaxwBh ux yxk ,d yEck ux ,d xksy ux

yxk gS otu 4 xzke dh 40 :

3- 2 ux pkanh ds pkch Nyyk ?kqa?k: okyh ehuk yxk out 28

xzke dh 280 :

5.During trial, the complainant filed an application under Section 457 CrPC for

handing over seized property on supurdnama before learned Chief Judicial

Magistrate, Raigarh claiming ownership on the count that the applicant is

goldsmith and the property seized by the Police from the accused is

deteriorating, therefore, it may be handed over to him. One of the accused

namely Radhey Shyam Chandra who was charged for committing robbery

has filed objection contending that he has no objection to hand over the

7

property which has been seized on the memorandum statement of Nasir

Khan dated 19.06.2004 from Radhey Shyam Chandra as well as all the

property seized from him except from No. 1 to 8 as the said property

belonged to accused Radhey Shyam Chandra. It has also been contended

that the seized property are disputed, therefore, its identification is

necessary and has prayed for rejection of the application so far as the

property seized from accused Radhey Shayam Chandra. Learned CJM has

rejected the same vide order dated 25.09.2024.

6.The appellant after judgment of the criminal trial has moved an application

for handing over the property on supurdnama before the learned Additional

Sessions Judge under Section 452 CrPC which was registered as

Miscellaneous Criminal Case No. 63 of 2005. Learned 4

th

Additional

Sessions Judge vide impugned order dated 21.07.2005 has rejected on the

count that earlier the trial Court has rejected the application under Section

457 CrPC and the learned Sessions Court while disposing of the criminal

trial No. 141 of 2004 has not given any decision with regard to disposal of

the property but in para-60 of its judgment has granted liberty to the

appellant to take recourse of civil suit and accordingly it has rejected the

application filed by the appellant. Being aggrieved with this order, the

appellant has preferred this appeal.

7.Learned counsel for the appellant would submit that the applications under

Section 452 and 457 CrPC are independent proceedings and even if their

application under Section 451 CrPC has been rejected by the trial Court it

does not affect their right as proceeding under Section 451 CrPC is during

custody and disposal of the property pending the trial and its intermediate

8

order whereas Section 452 CrPC is final order which has been passed for

disposal of the property after conclusion of trial, as such there is no rider to

decide the case by the Session Court under Section 457 CrpC. He would

further submit that order under Section 451 Crpc is intermediate order. He

would further submit that even other wise the order under Section 452 Crpc

is interlocutory order, therefore, it merges with the final order. To

substantiate this submission, he has referred to the judgments in the case

of Surjeet Kumar Jain vs. State of Chhattisgarh reported 2021 SCC

Online Chh 2464, judgment of Madhya Pradesh High Court in the case of

Dheerendra Dwivedi @ Dheeru vs. State of MP in Criminal revision No.

2078 of 2020 decided on 17.12.2020 and also referred the judgment of

High Court of Delhi in the case of Sandeep Singh vs. State of NCT of

Delhi and another, reported in 2022 SCC Online Del 1466.

8.He would further submit that one of the accused has not claimed the entire

property, therefore, finding recorded by the trial Court to go for civil

proceedings is illegal and is liable to be set aside. He would further submit

that confessional part of the accused lead to discovery used for purpose of

disposal of the property and the stolen property recovered at the instance of

the accused is disclaimed by him and the accused were given benefit of

doubt, as such property should be returned to the owner. To substantiate

this submission he has referred to the judgments of Hon’ble Supreme Court

in the case of Mahesh Kumar vs. State of Rajasthan, 1990 Supp SCC

541(2), Prakash Vernekar vs. State of Goa and Another reproted 2007

SCC Online Bom 1244, Vishnu Kumar Agarawal vs. State of UP

reported 2022 SCC Online All 1766, Prakash Chandra Jain vs. Jagdish

9

and another reported 1957 SCC Online MP 118, Satish Ramakant Naik

vs. State of Goa through Public Prosecutor and another reported 2019

SCC Online Bom 4887 and would pray for allowing the appeal.

9. Learned counsel for the respondent No.2 Mr. Arun Shukla would submit that

the impugned passed by the trial Court is legal, justified and the respondent

No. 2 is claiming right over the seized property. He would further submit that

the appellant has not submitted any bills or document of purchase to

demonstrate that he is the ownership of the property and in absence of any

documentary evidence on record it cannot be said that the

complainant/appellant is the owner of the property, as such he is not entitled

to get possession of the property after conclusion of the trial, therefore

application under Section 452 of CrPC has rightly been rejected by the trial

Court. He would further submit that entitlement of the appellant itself is

doubtful unless and until absolute ownership of the seized material is prima-

facie proved, as such he is not entitled to take possession on the looted

property and would pray for dismissal of the appeal.

10. On the other hand learned counsel for the State supporting the judgment of

the trial Court would submit that learned trial Court declined possession of

the seized property which is legal, justified and which does not warrant

interference by this Court. He would further submit that even interlocutory

order passed by the trial Court under Section 451 CrPC before the

Magistrate has not been challenged, as such it has attained finality and

even if interlocutory order is not binding proceeding under Section 452 Crpc

but it has some legal value which cannot lose sight of the fact by ignoring

the same unless cogent material is brought by the appellant. In the present

10

case, the appellant has not produced any bill, voucher to demonstrate that

he has purchased the silver and gold items from which he has made

ornaments. He would further submit that the complainant/appellant has

stated that 5 KG gold and 15 tolas silver have been looted by the accused

whereas only 1100 gram ornaments were seized as per seizure memo, as

such there is large discrepancy in the details of the seized property and the

contains made in the FIR, therefore, there is serious doubt over the

correctness and genuineness of the claim and would pray for dismissal of

the appeal.

11.I have heard learned counsel for the parties and perused the records.

12.From the submission made by the counsel for the parties, the point merged

for determination by this Court is whether the order passed by the Sessions

Court declining claim of the appellant under Section 452 CrPC and directing

the appellant to take recourse of civil law is legal, justified or not ?

13.For better understanding the point of determination, it is expedient for this

Court to extract Sections 451 and 452 CrPC.

Section 451 CrPC - Order for custody and disposal of property

pending trial in certain cases:-When any property is produced before

any Criminal Court during an inquiry or trial, the Court may make such

order as it thinks fit for the proper custody of such property pending

the conclusion of the inquiry or trial, and, if the property is subject to

speedy and natural decay, or if it is otherwise expedient so to do, the

Court may, after recording such evidence as it thinks necessary, order

it to be sold or otherwise disposed of.

Explanation- For the purposes of this section, “property” includes -

(a) property of any kind or document which is produced before the

Court or which is in its custody.

(b) any property regarding which an offence appears to have been

committed or which appears to have been used for the commission of

any offence.

Section 452 CrPC Order for disposal of property at conclusion of

trial.

(1) When an inquiry or trial in any Criminal Court is concluded, the

Court may make such order as it thinks fit for the disposal, by

11

destruction, confiscation or delivery to any person claiming to be

entitled to possession thereof or otherwise, of any property or

document produced before it or in its custody, or regarding which any

offence appears to have been committed, or which has been used for

the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of

any property to any person claiming to be entitled to the possession

thereof, without any condition or on condition that he executes a

bond, with or without sureties, to the satisfaction of the Court,

engaging to restore such property to the Court if the order made

under sub-section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under

sub-section (1), direct the property to be delivered to the Chief

Judicial Magistrate, who shall thereupon deal with it in the manner

provided in Sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and

natural decay, or where a bond has been executed in pursuance of

sub-section (2), an order made under sub-section (1) shall not be

carried out for two months, or when an appeal is presented, until such

appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property

regarding which an offence appears to have been committed, not only

such property as has been originally in the possession or under the

control of any party, but also any property into or for which the same

may have been converted or exchanged, and anything acquired by

such conversion or exchange, whether immediately or otherwise.

14.From the above stated provisions of CrPC, it is quite vivid that proceeding

under Section 451 and 452 works in different sphere as Section 451 CrPC

operates for custody and disposal of the property pending trial in certain

cases whereas Section 452 CrPC operate for disposal of the property at

conclusion of the trial. It is also clear that at the time of considering the

application under Section 451 CrPC, the documents relating to seizure are

not available as at these documents get approved after completion of trial

by exhibiting the same in the course of proceeding or by examining the

witnesses of the seizure memo, as such while dealing with the application

during the trial the person who intends to claim the property has to prove his

claim by strong and cogent evidence whereas after trial the complainant

examined, the seizure memo are duly proved by examining the witnesses

12

and the accused has also opportunity to explain the circumstances of

availability of the property on his memorandum statement recorded under

Section 27 of the Evidence Act then only entitlement of the person is

determined, therefore, rejection of the application under Section 451 CrPC

is not having any adverse affect while deciding the application under

Section 452 CrPC after completion of the trial. Even otherwise, order

passed under Section 451 CrPC is interlocutory order and in view of well

settled legal position of law that interlocutory order does not culminate right

of any party, as such the trial court has committed illegality while taking into

consideration the order passed under Section 451 CrPC by the Judicial

Magistrate First Class while dismissing the application under Section 452

CPC.

15.The Hon’ble Supreme Court in the case of Rajendra Kumar Sitaram Pande

and others vs. Uttam and another reported 1999(3) SCC 134 has held as

under:-

6. Discretion in the exercise of revisional jurisdiction should,

therefore, be exercised within the four corners of Section 397,

whenever there has been miscarriage of justice in whatever

manner. Under sub-section (2) of Section 397, there is a

prohibition to exercise revisional jurisdiction against any

interlocutory order so that inquiry or trial may proceed without

any delay. But the expression "interlocutory order" has not been

defined in the Code. In Amar Nath & Ors. vs. State of Haryana

1978(1) SCR 222, this Court has held that the expression

"interlocutory order" in Section 397(2) has been used in a

restricted sense and not in a broad or artistic sense and merely

denotes orders of purely interim or temporary nature which do

not decide or touch the important rights or liabilities of the parties

and any order which substantially affects the right of the parties

cannot be said to be an "interlocutory order".

16.From perusal of the order impugned passed by the learned Session Judge

while rejecting the application has not taken into consideration the seizure

13

memos Ex.P-20, ExP-27, Ex.P-17, Ex.P-23, Ex.P-24, Ex.P-18 and Ex.P-19

which were the seizure memo prepared on the memorandum statement

recorded under Section 27 of the Evidence Act of the accused namely

Ghanshyam Kenwat, Radhey Shyam Chandra, Amrit Lal Satnami, Nazir

Khan, Joshikram, Subhas Mahant, Shiv Lal @ Runjhu as detailed above.

Even accused including Radhey Shyam in their statement recorded under

Section 313 CrPC have not stated anything regarding ownership of the

property seized as well as seizure of the property from them.

17.Though it is well settled legal position that as per Section 27 of the Evidence

Act, it is quite vivid, that when any fact is deposed to as discovered in

consequence of information received from a person accused of any offence,

in the custody of a police officer, so much of such information whether it

amounts to a confession or not, as relates distinctly to the fact thereby

discovered, may be proved. Section 27 of the Evidence Act, has recently

come up for consideration before the Hon’ble Supreme Court in the case of

Neelu @ Nilesh Kosti vs. State of Madhya Pradesh reported in 2026

INSC 173 wherein the Hon’ble Supreme Court has held in paragraph

20,21,22 and 23 as under:-

20, It is trite that Section 25 and 26 of the Evidence Act stipulate

that confession made to a Police Officer is not admissible.

However, Section 27 is an exception to Section 25 and 26 and

serves as a proviso to both these sections. Section 27 of the

Evidence Act reads as follows:

“27. How much of information received from accused may be

proved.— Provided that, when any fact is deposed to as

discovered inconsequence of information received from a

person accused of any offence, in the custody of a police-

officer, so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby

discovered, may be proved.” The scope and ambit of Section

14

27 have been examined by this Court in Delhi Administration

vs. Bal Krishan and Others reported in 1972 (4) SCC 659.

21) Elucidating on what constitutes “discovery of fact” under

Section 27 of the Evidence Act, this Court in Udai Bhan vs. State

of Uttar Pradesh reported 1962 SCC Online SC 229 observed

as follows :

“11. Thus it appears that Section 27 does not nullify the ban

imposed by Section 26 in regard to confessions made by

persons in police custody but because there is the added

guarantee of truthfulness from the fact discovered the

statement whether confessional or not is allowed to be given

in evidence but only that portion which distinctly relates to

the discovery of the fact. A discovery of a fact includes the

object found, the place from which it is produced and the

knowledge of the accused as to its existence. ….”

(Emphasis supplied).

22) The aforesaid legal position was comprehensively reiterated

and elaborate d upon by this Court in Bodhraj Alias Bodha and

Others vs. State of Jammu and Kashmir 2002 (8) SCC 45,

wherein the question of whether evidence relating to recovery is

sufficient to fasten guilt on the accused was examined at length.

This Court held that for evidence under Section 27 to be

admissible, the information must emanate from an accused who

is in police custody. The Court elucidated that the basic idea

embedded in Section 27 is the doctrine of confirmation by

subsequent events when a fact is discovered on the strength of

information obtained from a prisoner, such discovery serves as

a guarantee of the truthfulness of the information supplied. The

Court further observed that whether the information is

confessional or non-inculpatory in nature, if it results in the

discovery of a fact, it becomes reliable information. Significantly,

it was held that the mere recovery of an object does not

constitute the discovery of fact envisaged in the section. Relying

on the Privy Council's decision in Pulukuri Kottayya and Others

vs. King Emperor AIR 1947 PC 67, the Court held that the "fact

discovered" embraces not merely the object recovered, but the

place from which the object was produced and the knowledge of

the accused as to its existence, and that the information given

must relate distinctly to that effect.

23) When the present case is examined in the light of the

aforesaid principles, it is evident that the recovery of the dead

body satisfies all the essential requirements of Section 27 of the

Evidence Act. Pursuant to the memorandum statement

recorded, while the appellant was in Police custody, the dead

body of Archana @ Pinki was discovered from a well near

Tasaali Dhaba, Indore Bypass Road. The body was found

stuffed in a sack, as deposed by the panch witnesses who were

15

present at the time of recovery. The recovery panchnama

establishes that the recovery was made at the precise location

disclosed by the appellant. As laid down in Udai Bhan 4 (2002) 8

SCC 45 5 AIR 1947 PC 67: 1946 SCC OnLine PC 47 (supra),

the discovery of a fact includes the object found, the place from

which it is produced, and the knowledge of the accused as to its

existence. In the present case, the information given by the

appellant while in Police custody distinctly relates to the fact

discovered, namely, recovery of the dead body of the deceased

concealed in a sack and thrown in a specific well. This

constitutes a "distinct fact" as contemplated under Section 27 of

the Evidence Act, as the recovery of the body from that precise

location could only have been made on the basis of information

furnished by someone who had personal knowledge of its

disposal. The recovery embodies the "doctrine of confirmation

by subsequent events" as explained in Bodhraj (supra)—the

actual discovery of the body from the exact location disclosed by

the appellant is a guarantee that the information supplied by him

is true. The fact discovered embraces the place from where the

object was recovered (the well near Tasaali Dhaba) and the

knowledge of the appellant as to its existence at that location.

This information is not within public domain or capable of

discovery through routine investigation. These circumstances

constitute a formidable link in the chain pointing towards the

culpability of the appellant.

18.Considering the aforesaid legal position and the facts of the case, the

information given by the accused in the police custody regarding silver and

gold ornaments distinctly related to the fact discovered under Section 27 of

the Evidence Act as the recovery of gold and silver ornaments from the

precise location could only have been made on the basis of information

furnished by someone who had personal knowledge about it. Thus it cannot

be held that the property was seized from the accused persons as the

memorandum statement of the accused for proceeding under Section 452

CrPC is piece of evidence for the purpose of considering and deciding who

is best person entitle to possession of the property. The Hon’ble Supreme

Court in the case of Mahesh Kumar vs. State of Rajasthan reported in

1990 supp SCC 541 has held that leading to the discovery by the accused

16

can be made use of for purpose of and the disposal of property under

Section 452 of the Code. The Hon’ble Supreme Court has held as under:-

2. In the facts and circumstances of the present case, we are

satisfied that the direction made by the learned Single Judge of

the Rajasthan High Court for the forfeiture of the amount of Rs

20,000 (Rupees twenty thousand) to the State is wholly

unwarranted. It is now accepted principle that the confessional

part of the statement made by the accused leading to discovery

within the meaning of Section 27 of the Evidence Act, 1872 or

Section 162 of the Code of Criminal Procedure, 1973 can be

made use of for purpose of and the disposal of property under

Section 452 of the Code. There is a long line of decisions laying

down the principle and we would refer to only a few of them.

3. In Queen Empress v. Tribhovan Manekchand a Division Bench

of the Bombay High Court laid down that the statement made to

the police by the accused persons as to the ownership of property

which was the subject matter of the proceedings against them

although inadmissible as evidence against them at the trial for the

offence with which they were charged, were admissible as

evidence with regard to the ownership of the property in an

enquiry held by the Criminal Procedure Code. The same view

was reiterated in Pohlu v. Emperor where it was pointed out that

though there is a bar in Section 25 of the Evidence Act, or in

Section 162 CrPC for being made use of as evidence against the

accused, this statement could be made use of in an enquiry under

Section 517 CrPC when determining the question of return of

property. These two decisions have been followed by the

Rajasthan High Court in Dhanraj Baldeokishan v. State and the

Mysore High Court in Veerabhadrappa v. Govinda. In the present

case, the amount in question was seized from the accused in

pursuance of statements made by them under Section 27 of the

Evidence Act. The High Court as well as the courts below have

found the property to be the subject of theft and the acquittal of

the accused is upon benefit of doubt. The accused persons

disclaimed the stolen property and there is no reason why the

same should not be returned to the owner i.e. the complainant to

whom it belongs.

19.The High Court of Madhya Pradesh in the case Kamarlal and another vs. State of

M.P. and another reported in 1992 SCC Online M.P. 246 has held as under:-

9. The learned counsel appearing on behalf of the complainant-

accused has placed reliance on a decision of this court of

Babulal v. State of M.P (1989 C.Cr.J 11) wherein it has been

observed that the power of the criminal court under S. 452,

Cr.P.C. to make an order for the disposal of the property at the

17

conclusion of the trial is summary in nature and on order so

made does not adjudicate upon the civil rights of the parties and

the persons aggrieved are free to file a civil suit for enforcement

off their rights in the property and that the provisions under the

law do not bar statement of the accused made to the police

officer during investigation being used to determine the person to

whom custody of the property could be delivered.

(10.) In the instant case, the argument of the learned counsel for

the petitioners-Accused is that that the property in dispute

belongs to the Accused persons and the police seized the

property from the Accused persons and implanted the same for

the purpose of seizure in pursuance of memorandum under S.

27 of the Evidence Act. This argument in my opinion, has no legs

to stand. If the police had seized the property belonging to the

Accused persons from them, it was but natural that they would

have made complaint of such highhandedness on the part of

police at some forum. It was also expected in that circumstances

that the Accused persons would, from the very outset make a

claim to the property as belonging to them but they advisedly

kept silent for some time even after the complainant made an

application under S. 452 of the Cr. P.C. The Accused persons

also denied any seizure of the property from them in the

examination of the Accused. In these circumstances, no claim

has been established of the Accused over the property which

was the subject matter of the alleged offence of theft. In fact, the

Accused persons have been acquitted because they were not

found to be in possession of the property which was allegedly

seized from them. Moreover, as observed in the case of Babulal

(supra) the disposal of property u/S. 452, Cr. P.C. is summary in

nature and subject to proper adjudication of civil rights of the

parties in a civil suit by the person aggrieved. In view of the

discussions aforesaid, I do not find any force in this revision,

which is, therefore, dismissed. Revision dismissed.

20.Similar views have also been taken by the High Court of Kerla in the case of

Thampi Chettiar Arjunan Chettiar vs. State and another reported in 1995

Criminal Law General 1185, High Court of Bombay in the case reported

in 2007 SCC Online Bombay 1214 and Allahabad High Court also in the

case of Vishnu Kumar Agrawal vs. State of U.P. and others reported in

2022 SCC Online All 1766.

21.In view of above stated facts and law on the subject, I am of the view that the

learned Sessions Court has committed illegality in passing the order dated

18

21.07.2005 in Misc. Case No. 63 of 2005 rejecting the application for

supurdnama under Section 452 CrPC after completion of trial and acquittal of

accused. Consequently, the impugned order dated 21.07.2005 is set aside

and the application filed by the appellant under Section 452 CrPC is allowed

and the Sessions Court is directed to hand over the property as detailed in

supurdnama Ex.P-20, ExP-27, Ex.P-17, Ex.P-23, Ex.P-24, Ex.P-18 and Ex.P-

19 to the legal heirs of the appellant subject to the satisfaction of the Sessions

Court, Raigarh by imposing usual conditions upon the owner of the property at

the time of handing over to them.

22.Accordingly, the instant appeal is allowed.

Sd/-

(Narendra Kumar Vyas)

Judge

santosh