Decided on July 04,1961



- (1.) THE plaintiffs are the appellants The appeal arises out of the judgment and decree passed by the learned Subordinate Judge of Midnapore whereby he set aside the judgment and decree of the learned Munsif, 1st Court, Tamluk. The latter passed a decree against the defendant No. 1, the State of West Bengal and the defendant No. 2, Nagendra nath Sen Gupta, the officer in charge of Tamluk police station for recovery of certain movables or the value thereof. The plaintiff's case was as follows:
(2.) ON 21st July, 1949, a dacoity was committed in the house of Bepin bhowmik, husband of defendant No. 7. In connection with the dacoity case, one Sk. Khadem was arrested and on his confession before the Sub-divisional Officer, it was found that he had sold the disputed articles, a necklace, a bicycle syringe and a money-bag to the plaintiff No. 1. On the basis of the confession, the house of the plaintiff No. 1 was searched and the articles as stated by Khadem were recovered from the plaintiff No. 1. This plaintiff No. 1 was sent up for standing his trial under section 412 I. P. C. but was subsequently acquitted of that charge by the Additional Sessions Judge of Midnapore. Sk. Khadem however, was duly convicted under section 395 I. P. C. and sentenced to suffer rigorous imprisonment for two years by the learned first Assistant Sessions Judge of Midnapore on 26-4-51. This learned Judge referred the matter to the S. D. O. of Tamluk for disposal of the seized articles under section 518 of the Code of Criminal Procedure. The learned Magistrate after holding some enquiry returned the necklace to the defendant No. 7 and the other articles on the different dates, viz. 4-1-52 and 25-3-52. The plaintiff No. 1 who was acquitted on 4-12-50 of the charge under section 412 of the Indian Penal Code applied to the magistrate for return of the necklace and other articles on 14-8-52. On his application, the learned Magistrate referred him to the Civil Court on 4-1-52 and 25-3-52 as on a date previous to these dates the articles were already returned to the defendant No. 7. Accordingly the present suit for recovery of the specific movables or their values thereof was instituted. The State of West Bengal and the defendant No. 2 contended in their written statements that they were not liable in this suit as what they did, in the matter of the seizure of the articles was entirely in good faith in the discharge of their official duties. The learned Munsif upon consideration of the evidence in this regard came to his conclusion that the disputed articles belonged to the plaintiffs and they were entitled to those articles or the price thereof as claimed in this suit against the State of West Bengal and the Police Officer, defendant No. 2. In support of the appeal, Mr. S. N. Ghorai, the learned Counsel, has urged three points which run as follows: (1) His contention is that when the articles were seized from the plaintiff No. 1, he ought to have been deemed to be in possession thereof and under section 110 of the Evidence Act, the presumption of title was in his favour. As the other side, viz. defendants have not discharged their onus to rebut the presumption, the lower appellate court ought to have decreed the suit in favour of the plaintiff, (2) The second contention is that it has been found as a fact by both the courts that the weight of the necklace was 3 tolas and odd and this being in conformity with the evidence and proof adduced by the plaintiff No. 1 ought to have been treated as a very cogent piece of evidence in awarding a decree in favour of the plaintiffs. (3) His third point is that the learned lower appellate court reversed the finding of the learned Munsif against the weight of evidence and that he has not considered the evidence in its proper perspective.
(3.) BEFORE placing these points regarding the merits of the appeal, Mr. Ghorai urged that this suit ought not to have been treated by the lower appellate court as barred by limitation. It is conceded by the learned Government pleader Mr. Chakravarty, that this suit is not barred by limitation and it will be governed by Article 49 of the Indian Limitation Act. Accordingly, this point as urged by Mr. Ghorai is accepted. His second preliminary objection was that the lower appellate court ought not to have found that the order under which the Magistrate referred the present plaintiffs to the civil court regarding the return of the articles, was a proper order. Taking this point for consideration, it will appear that under section 518 of the Code of Criminal Procedure, the learned Assistant Sessions Judge did not pass any order for disposal of the articles under section 517 of the Code, but in lieu thereof directed the property to be delivery to the Sub-divisional Magistrate, who was required in such a case to deal with it as if it had been seized by the police and the seizure had been reported to him in the manner referred to in the following sections of the Code. Regarding disposal of property, it will appear that the relevant orders, excepting one, have not been placed before the courts below, but it appears from the last order passed by the learned Magistrate that the plaintiffs were referred to the Civil Court. It is within the jurisdiction of the Magistrate to pass orders both under section 517 as also under section 523 of the Code to dispose of the property seized in a summary manner and may according to his discretion deliver the property to the person, who recording to Ms summary enquiry was found entitled to present possession thereof. If any party is aggrieved by such an order, his remedy lies in the appellants or the revisional courts and the propriety or otherwise of such an order cannot be questioned in any civil court. The orders under section 517 and section 523 of the Code do not settle any rights or confer any title. They are merely empowering sections to dispose of the property seized in a summary way. The orders are concerned only with the right to immediate possession and not to the question of title or proprietary right to the property. The jurisdiction of the Civil Courts in such a case remains unaffected and, therefore, it may be pointed out that the order of the learned Magistrate referring the plaintiffs to the civil court was a proper order and on that score the suit is perfectly maintainable and the decision to the contrary by the lower appellate court was wrong.;

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