Decided on May 19,1952

GHOORMAL Appellant
STATE Respondents

Referred Judgements :-



- (1.)THIS is an application for revision by Ghoormal accused in a case under sec. 380 I. P. C. The case was instituted in the Court of Magistrate First Class, Lachhmangarh, on the report of Narain, opposite party. A sum of Rs. 7551- was recovered from the accused Ghoormal on a search made by the police during investigation. Ghoormal and one Mangia Ram were convicted by the Magistrate under sec. 380, and sentenced to rigorous imprisonment for one year, and a fine of Rs. 200/- each. As regards the property recovered from the accused, an order was made that it be returned to the complainant Narain on the expiration of the period prescribed for appeal. Both the accused went in appeal, and the learned Sessions Judge, Alwar, allowed their appeal, and set aside their conviction and sentences, and acquitted them. He, however, made no order regarding the delivery of property. THIS order in appeal was made on the 18th of May, 1949. After the disposal of the appeal, the complainant Narain made an application on the 12th of July, 1949, to the Magistrate concerned praying for the delivery of the property to him. He made another application on the 14th of July, 1949, to the Sessions Judge, praying that an order be sent to the Magistrate concerned for delivery of the property to him. On this application, the learned Sessions Judge made an order dated the 14th July, 1949, that the appeal had been disposed of, and the property be delivered to the complainant in terms of the Magistrate's order, which was made at the time of conviction of the accused. The Magistrate made an order that the property should be delivered to the complainant and a receipt be obtained. THIS order was made on the 19th of July, 1949. On receipt of this order, the police returned the property including the cash in question to the complainant, and obtained a receipt, and forwarded it to the Magistrate. After this, the application, out of which this revision has arisen, was made by Ghoormal and Mangia praying that the cash which had been delivered to the complainant Narain by the court be realised from him, and made over to them (Ghoormal and Mangia ). The learned Sessions Judge, however, made an order on the 15th of March, 1951, that the order about the delivery of property had already been passed, and no order inconsistent with the said order could be made. Against this order of the learned Sessions Judge, Alwar, the. applicant Ghoormal has filed this application for revision.
(2.)IT was argued by the learned counsel for the applicant that after the applicant and Mangia were acquitted, the property which was taken possession of by the police on the search of the applicant during investigation of the theft: case ought to have been returned to him, and it ought not to have been returned to the complainant. As the property was illegally returned, it should be taken back from the complainant and made over to the applicant.
On behalf of Narain, opposite party, it was argued by his learned counsel that the property having already been delivered to Narain could not be taken back from him, as sec. 517 Cr. P. C, which was sought to be applied on behalf of the applicant, applies only for the disposal of any property or document produced before it or in its custody. The property having passed over to the complainant was no longer in the custody of the court, and, therefore, the court had no power to make any order for its being taken over from the complainant, and made over to the applicant.

I have considered the arguments of learned counsel for both the parties. The only provision of law on which the learned counsel for the applicant has relied is sec. 517 of the Code of Criminal Procedure. According to that section, after the conclusion of an inquiry or trial in any criminal court, the court may make such order as it thinks fit for the disposal 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. Sec. 517, therefore, contemplates only one order by the criminal court, and after it has passed that order and effect has been given to it, it does not provide that the property would be taken back from the party to whom it has been given under the said section. In the present case, in the order of conviction the Magistrate made the order that the property recovered on search be given back to the complainant. On appeal, although the accused were acquitted, the order of the Magistrate regarding the delivery of the property was neither set aside nor any other order made which might be deemed to supersede the order of the Magistrate regarding delivery, of the property. On the application made by the complainant, the Sessions Judge ordered the Magistrate to make over the property to the complainant and the same was made over to the complainant on the 19th of July, 1949. About an year after the delivery of the property to the complainant, the applicant made the present application. On the date when the application was made, the property was not before the court, and it had passed out of its custody. Neither the learned Sessions Judge nor the Magistrate had any authority in law to call for the property back from the complainant. I am supported in this view by a ruling of the Patna High Court reported in Jhumak Singh vs. Tota Mahto and others (1) (A. I. R. 1944 Qudh 310. ). It was held by Sultan Ahmed, J. that - "section 517 of the Cr. P. C. is not applicable to a case where the property has already passed out: of the custody of the Court. Sec. 517 does not contemplate double restoration. " In that case too, the property had been given over to one party on the order of the Magistrate. The other party thereafter made an application for the delivery of the property to him, but this request was rejected on the ground given above. In Lala Bansi Dhar vs. Brij Basi Lal (1) (1930 Allahabad 35.), a house was in the occupation of one Radha Kishan pleader. It was alleged that one Govind Prasad was the owner of the house and that he had let out the same to one Mulua, Later on Govind Prasad applied to the police to be put in possession of the house, as Mulua had disappeared. The police put Govind Prasad in possession, and Govind Prasad sold it to one Bansi Dhar. One Brij Basi Lal, son of Radha Kishan, instituted a complaint against Bansi Dhar and 17 others charging them with offences punishable under secs. 143, 380 and 448 I. P. C. Before the filing of the complaint, the police had taken possession of the house, and had locked it. The complaint of Brij Basi Lal, on receipt of the police report, was dismissed under sec. 203. The key of the house, however, continued to remain in the possession of the police. Upon an application for revision filed by Brij Basi Lal, the Sessions Judge, Mainpuri, set aside the order dismissing the complaint, and directed further enquiry. . Bansi Dhar's application to the High Court against the order of the Sessions Judge was rejected. When the case came for further enquiry before another Magistrate, the key of the house was delivered to Brij Basi Lal under the orders of the said Magistrate. The case ultimately ended in acquittal of the accused. An application was presented by the accused Bansi Dhar, after his acquittal, for an order directing Brij Basi Lal to hand over the key to him, which had remained in possession of Brij Basi Lal, under the order of the previous Magistrate. This application was refused on the grounds that the key having been put into the possesssion of Brij Basi Lal by competent authority, the Magistrate had no jurisdiction either to revise or to overset the said order. On an application for revision filed by Bansi Dhar, the Sessions Judge referred the case to High Court, and it was held by Sen, J. that when the court was moved for an order directing the complainant to hand over the key to the accused neither the house nor the key was in the custody of the court. The court, therefore, had no power to make an order under sec. 517 in favour of the accused. These two authorities are clearly in favour of the opposite party, and with respect I agree with the view taken by the Patna and Allahabad High Courts.

On behalf of the applicant a ruling of the Oudh Chief Court reported as Dost Mohammad and others vs. Emperor (2) (A. I. R. 1944 Oudh 310.) was cited. There, no doubt, a certain sum of money, which was recovered from the possession of the accused in respect of an offence under sec. 411 LP C. was returned to the complainant. The accused, after his acquittal by the High Court, applied that the said amount be recovered from the complainant and made over to the accused. In that case, however, the language of sec. 517 Cr. P. C. does not appear to have been considered, and it was taken that the order was made under sec. 517 so that it could be set aside under sec. 520 by a court of appeal, confirmation, reference or revision. I am, therefore, unable to accept this ruling as an authority for the proposition put forward on behalf of the applicant in the face of the clear language of sec. 517 as well as the two rulings which have been quoted above.

I do not find any force in the revision which is dismissed. .

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