property as belonging to them. The wife of the petitioner, to whom the
ornaments in question were belonging, was not examined as a witness
during the trial. The identity of the property, as the same that was
robbed, was not established during the trial and as such the order of
acquittal was proper and legal. However, the respondent Nos. 2 and 3
were also not examined as witnesses during the trial. Their stand, viz.
as to whether the property produced before the Court had been
recovered from them and further whether that property had been
purchased by any of them from accused No. 1 or any other accused, was
also not ascertained during the trial. In such a case, instead of passing
an order of return of property to the respondent Nos. 2 and 3, the
learned Magistrate ought to have held an inquiry for the limited purpose
of the disposal of property. The persons to whom the property was
directed to be returned, viz. the respondent Nos. 2 and 3, had not at all
appeared before the Court and had not made any claim that the gold
that was produced as stolen property, was actually belonging to them or
that it had been recovered by the investigating agency from them. In
the context of the claim of the petitioner, it was also necessary to
ascertain as to from whom the respondent Nos. 2 and 3 had obtained
the property and whether it had been obtained by them from the
accused No. 1 or anybody else and under what circumstances. It was
also necessary to ascertain as to the circumstances in which the property
came to the investigating agency and under what circumstances,if at all,
it was parted with by the respondent Nos. 2 and 3 without any protest.
8. Thus, this was a fit case where the learned Magistrate ought
to have held an inquiry for the disposal of the property.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 998 OF 2010
Anandi Roy S/o Dilipkumar Roy
V
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
DATE OF JUDGMENT : 28/08/2013
Citation; 2013 ALL M R(cri)3898
