[2025:RJ-JP:14534] . HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Appeal (Sb) No. 157/2019 Atmaram Sharma S/o Late Purnanand, R/o Panchlangi Teh. Udaipurwati Dist. Jhunjhunu Raj. ----Appellant Versus 1. State of Rajasthan Through PP, Raj. 2. Ranveer Singh S/o Late Megh Singh R/o Udaipurwati Teh. Udaipurwati Dist. Jhunjhunu At Present R/o Plot No 9 Khadela House Chhota Pana Sansar Chandra Road Jaipur ----Respondents For Appellant(s) : Mr. M.M. Ranjan, Senior Advocate assisted by Mr. Lokesh Tiwari, Advocate For Respondent(s) : Mr. Mahender Meena, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 27/03/2025 1. Instant S.B. Criminal Appeal is preferred by appellant- applicant aggrieved from order dated 17.01.2019 in misc. criminal case No. 45/2017 passed by learned Additional Sessions Judge, No.2, Jhunjhunu in a matter relating to sessions case No. 28/2001 (38/1986) disposed of by learned Additional Sessions Judge, Fast Track (Jhunjhunu) on 21.08.2001 arising out of FIR No. 100/1985 P.S. Udaipurwati, District Jhunjhunu. 2. Learned Senior Advocate appearing on behalf of appellant submitted that after acquittal on 18.02.2014 in criminal appeal No. 1363/2009 by Hon’ble Supreme Court of India, an application for release of ornaments recovered from the possession of present appellant-applicant was moved before the Trial Court but same [2025:RJ-JP:14534] (2 of 6) [CRLAS-157/2019] was dismissed by the Trial Court. He further submitted that in a concocted and false case framed by police the petitioner accused was subjected to trial and was initially convicted by Additional Sessions Judge and affirmed by this Hon’ble Court but Hon’ble Supreme Court has allowed the appeal and acquitted the present appellant. He further submitted that the police has recovered jewellery and ornaments on 10.04.1986 and 22.04.1986 when the appellant was in custody of police. He further submitted that when an order of acquittal was passed in favor of appellant then the duty lies upon the criminal Court which passed an order to restore the seized property during investigation to the person from whom same was recovered. At last, he submitted that appellant is entitled for release of jewellery and ornaments recovered from the possession of present appellant by police when he was in custody of police. 3. Aforesaid contentions were opposed by learned Public Prosecutor. 4. Respondent No.2 was also informed by issuing notice but after service of notice he did not appear before this Court. 5. The brief facts of the case are that on the basis of a report about alleged murder of Kesar Bai, an FIR No. 100/85 was registered at P.S. Udaipurwati, District Jhunjhunu. Police has filed a charge-sheet against present appellant and Vijay Kumar on the ground that both have conspired and murdered Kesar Bai and stolen the ornaments/articles possessed by her. Some of the persons who received stolen property were also named by police. Learned Additional Sessions Judge (Fast Track), Jhunjhunu after full trial has convicted present appellant and Vijay Kumar under [2025:RJ-JP:14534] (3 of 6) [CRLAS-157/2019] Sections 302, read with Section 120-B, 460 and 382 IPC. The Trial Court has also convicted Gyan Chand, Kailash Chand and Radha Devi under Section 411 of IPC. On an appeal filed before this Court the conviction of Vijay Kumar and Atma Ram (present appellant) was affirmed but remaining accused were acquitted by this Court. Vijay Kumar and Atma Ram have preferred appeals before Hon’ble Supreme Court and both the appeals (appeal Nos. 441/2009 and 1363/2009) were allowed on 18.02.2014 and judgment of conviction and sentence was set aside resulting in acquittal of present appellant Atma Ram and Vijay Kumar. 6. Learned Trial Court in its order dated 21.08.2001 has directed to release recovered articles to successors of Kesar Bai. The Trial Court had dismissed the application of present appellant on the ground that the order of release of articles by learned Additional Sessions Judge (Fast Track), Jhunjhunu on 21.08.2001 was never set aside and this order dated 21.08.2001 was never challenged before any higher Court. A perusal of analogy of Trial Court clearly indicate that the Trial Court has not considered the fact that the judgment of learned Additional Sessions Judge dated 21.08.2001 and affirmation by a Division Bench of this Court was set aside and an order of acquittal was recorded in favor of present appellant. 7. The provision of Section 452 provides that order of disposal of property at conclusion of trial and same is reproduced as under:- (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 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 [2025:RJ-JP:14534] (4 of 6) [CRLAS-157/2019] 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. 8. Herein, this case it has also come to the notice that the Trial Court has directed to release the ornaments/jewellery to successor of Kesar Bai on production of evidence. The successor of Kesar Bai have procured a succession certificate and on the basis of succession certificate articles were released by learned Trial Court. This order was passed by learned Trial Court on 21.08.2001 at the time when it has convicted present appellant for murder of deceased Kesar Bai but when the appellant-accused has secured an order of acquittal form the Hon’ble Supreme Court of India then the order dated 21.08.2001 is set aside in toto. Herein, this case when the order was set aside, it means the Court has to consider release of property in pursuant to Section 452 of Cr.P.C. [2025:RJ-JP:14534] (5 of 6) [CRLAS-157/2019] but after receipt of an application filed by present applicant no reason whatsoever was recorded before passing an order by learned Trial Court. 9. It is an admitted position that first recovery was made on 10.04.1986 when this appellant was in custody of police and similarly second recovery was made on 22.04.1986 and again this appellant was in custody of police. Thus, the recoveries were effected only when the appellant was in police custody. No statement whatsoever was made to police during police custody is not admissible in evidence and same cannot be considered as an admission against the appellant particularly in light of order of acquittal secured by appellant-accused. 10. After considering the entirety of facts and circumstances of the case, I am of the considered view that learned Trial Court merely reproducing the facts has dismissed the application without considering the grounds raised by present appellant. The Trial Court was duty bound to consider that as and when an application is moved after completion of trial then it has to pass an order under Section 452 Cr.P.C. but after securing an order of acquittal in an appeal particularly in a case where the person from whom the property was recovered has claimed the property then the rival claims are required to be adjudicated. A succession certificate is just an indication that the person who acquired the succession certificate is successor of property left by deceased but it has nothing to do with the provision of Section 452 of Cr.P.C. where rival claims are made before the Trial Court. 11. In view of discussions made hereinabove, the Trial Court has ignored the material on record and without considering the claim [2025:RJ-JP:14534] (6 of 6) [CRLAS-157/2019] of present appellant has dismissed the application, therefore, it is appropriate to allow present S.B. Criminal Appeal and set aside the impugned order and remit back the matter to the Trial Court. 12. Thus, the instant Criminal Appeal is hereby allowed and impugned order dated 17.01.2019 is set aside. The matter is remitted back to the Trial Court for re-consideration of application filed by present appellant and also by other person(s) but after affording an opportunity of evidence and cross-examination to opposite parties. 13. Needless to say that learned Trial Court shall not be influenced from any order including impugned order. We have not expressed any opinion on merits of the case but Trial Court is expected to dispose of the application and the rival claims about articles as recovered from the present appellant. 14. The appellant and other parties are directed to appear before learned Trial Court on 12.05.2025, but in case any of the party failed to appear, then Trial Court may issue notice for appearance. 15. Instant appeal and misc. application(s), if any, stands disposed of. (ASHOK KUMAR JAIN),J MONU /172-S