Thangam @ Thangathammal vs The State and another

M. Karpagavinayagam, J.

This revision has to be allowed on a short ground. The petitioner is one of the accused in a case of theft. During the course of investigation, P.W.1 has filed an application for return of the property and the same was ordered in favour of P.W.1 granting interim custody. At the conclusion of trial, after the questioning was over u/s 313 of the Code of Criminal Procedure, A-3 the petitioner filed an application u/s 452 of the Code of Criminal Procedure claiming the property stating that she is entitled to get possession of the property as it belongs to her. After trial, on consideration of the materials, the trial court acquitted the accused including the petitioner and dismissed the application u/s 452 of the Code of Criminal Procedure filed by the petitioner mainly on the ground that application was belatedly filed. As against this order of dismissal of the application u/s 452 of the Code of Criminal Procedure, the petitioner filed on appeal before the court of session, Madurai u/s 454 of the Code of Criminal Procedure the sessions court which in turn, confirmed the order of trial court and dismissed the same.

It is pointed out that though the notice has been served on the complainant herein who is the second respondent, none appeared on his behalf.

The reasoning given by the trial court for dismissing the application u/s 452 of the Code of Criminal Procedure that it was belatedly filed in my view, would not be a correct one. The application u/s 452 of the Code of Criminal Procedure could be filed only at the conclusion of trial. Therefore, the petitioner has filed such an application u/s 452 of the Code of Criminal Procedure only at the appropriate stage. The learned Magistrate, while concluding the trial before giving judgment or at-least after judgment of giving acquittal, the Trial court must have conducted an enquiry u/s 452 of the Code of Criminal Procedure separately in order to decide the issue as to who is the party and who is entitled to possession of the stolen property Admittedly, this has not been done. Therefore the impugned order as confirmed by the appellate court is liable to be set aside and accordingly it is set aside and the revision is allowed. The learned Government Advocate would request this court to give suitable direction to the Magistrate to conduct an enquiry u/s 452 of the Code of Criminal Procedure and decide the issue by giving opportunities to all the parties concerned. Therefore, I deem it fit to give a direction to the lower court to have an enquiry u/s 452 of the Code of Criminal Procedure after notice to the parties by examining the witnesses and then decide the issue in the proceedings u/s 452 of the Code of Criminal Procedure as referred ,to above. With these observation, the Revision is allowed.