- (1.)This is an application to revise the order of the District Magistrate of Chittoor concerning the disposal of certain money and other articles seized by the Police in connection with a complaint of theft preferred by the petitioner against one Venkateswara Aiyar. The seizure was made in consequence of the petitioner s statement to the Police that he saw the accused running away from his house along with another person. A preliminary investigation was held by the Inspector of Police who came to the conclusion that the case was a false one and that the articles seized were probably foisted by the complainant himself or by his men into the accused s house where they were found by the Police. The complaint against the accused was dismissed by the 2nd class Magistrate of Gudiyatham under Section 203 of the Code of Criminal Procedure without notice to the accused. He directed under Section 517 of the Criminal Procedure Code that the articles seized by the Police should be forfeited to Government holding that they were used for concocting a false case against the accused. The District Magistrate to whom an application was made to revise the Sub Magistrate s order refused to direct any further enquiry to be made into the complaint and also concurred with him in the order passed with respect to the property seized. It is argued in this Court that the Magistrate had no power in this case to order the property to be forfeited to Government. The Magistrate appears to have acted wrongly in passing his order under Section 517 of the Criminal Procedure Code, as that section applies only when an inquiry or a trial in a Criminal Court is concluded. As the complaint in this case was dismissed under Section 203 it cannot be said that there was any inquiry or trial in the Magistrate s Court. Section 204 of the Code of Criminal Procedure in Chapter XVII which is headed-" of the commencement of proceedings before Magistrates," enacts that if in the opinion of the Magistrate there is sufficient ground for proceeding, that is, if he does not dismiss the complaint under Section 203, he is then to issue a summons or warrant to the accused. The inquiry or trial in the Magistrate s Court had not, therefore, commenced in this case. But, although the Magistrate had no jurisdiction to pass the order under Section 517, he had power under Section 523 to pass an order regarding the disposal of property seized by a Police officer which was " alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence." The petitioner alleged that the property in question had been stolen. According to the view of the Police Inspector and the Magistrate it was "found under circumstances which create suspicion of the commission of an offence." They both came to conclusion that it must have been placed there by the complainant himself with a view to institute a false complaint of theft against the accused, or in other words, for fabricating false evidence of theft against him. The question for decision is-Had the Magistrate, who according to the section had power to pass such order as he thought fit respecting the disposal of the property, jurisdiction, in the exercise of that power, to direct the property to be forfeited to Government? According to the language of the section the Magistrate could make such order as he thought fit either respecting the disposal of the property or its delivery to the person entitled to its possession or, if such person could not be ascertained, respecting the custody and production of the property. According to Clause 2 of the section, "if the person entitled to possession cannot be ascertained the Magistrate may make a proclamation requiring any person claiming it to establish his claim." If no one succeeds in doing so and if the person in whose possession the property is found is unable to show that it was legally acquired by him the property is to be at the disposal of Government (Section 524). It is argued that it is only if the person entitled to possession cannot be ascertained and no one establishes his title to possession after notice given by the Magistrate, an order can be passed that the property should be at the disposal of Government. This contention cannot be accepted. Clause I of Section 523 gives the Magistrate power either to deliver the property to the person entitled to its possession, or to pass such order as he deems fit respecting its disposal. If he adopts the first alternative, he has to find out the person entitled to possession and, if no one succeeds in establishing his title to possession, the property would be at the disposal of Government. If he adopts the second alternative, the section does not specifically state what the nature of the order regarding the disposal of property should be. If an order that the property should be at the disposal of Government would be proper in the circumstances of the case, there is nothing in the section which prevents him from passing such an order; whether such an order would be proper or not must be decided by general principles of law and the light derived from the other sections of the Procedure Code. Where any inquiry or trial has been concluded, the court has power under Section 517 to make such order as it thinks fit for the disposal of any property or document produced before it or in its custody regarding which any offence appears to have been committed, or which has been used for the commission of any offence. Here again the nature of the order to be passed for the disposal is not specified. If the property has been used for the commission of an offence, it is impossible to suppose that the Legislature intended that it should be returned to the owner who would be the person guilty of the offence. If the property is the subject of the offence as in cases of theft, misappropriation, receipt of stolen property etc., the proper order of course would be to direct it to be returned to the person from whom it was stolen or to the owner whose property was appropriated. There are some express provisions of law directing property used for the commission of an offence to be destroyed or forfeited. Section 263 Clause (2) of the Indian Penal Code provides that any stamp, die, plate instrument or materials in the possession of any person for making any fictitious stamp may be seized and shall be forfeited. Section 126 enacts that property used or intended to be used in committing depredation or acquired by committing depredation on the territories of any person in alliance or at peace with the king, shall be liable to forfeiture. Section 127 lays down that property received by any person knowing the same to have been taken in the commission of an offence under Section 125 shall be liable to forfeiture. There are other provisions of a similar character in special statutes.
(2.)Section 521 of the Code of Criminal Procedure provides that on a conviction under Sections 292, 293, 501 and 502 of the Indian Penal Code the Court may order the destruction of all the copies of the thing in respect of which the conviction was and which are in the custody of the Court or remain in the possession or power of the person convicted. It also lays down that on a conviction under Sections 272, 273, 274 and 275 of the Indian Penal Code, the court may order the food, drink or drug or medical preparation in respect of which the conviction was had to be destroyed. These sections show that with respect to property used in the commission of an offence the order under Section 517 may be according to the nature of the case either for the destruction of the property or for its forfeiture. A similar interpretation should be placed on Section 523 with respect to property found under circumstances which create suspicion of the commission of any offence. If the offence be one relating to property the proper order would of course be to return it to the owner or person in possession. But this cannot be the proper order where the offence suspected is one committed by the person who is the owner or possessor of the property and who has used it for the commission of the offence. The right order in such a case must be to direct the destruction or forfeiture of the property according to its nature. Section 523 contains a general provision applicable to all cases where there has been no inquiry or trial. If therefore there are grounds for suspecting that the property seized was used for fabricating false evidence against the accused in the case, the Magistrate must be held to have jurisdiction to pass an order directing its forfeiture. This, is a punishment which the law allows to be inflicted in addition to its ordinary punishments prescribed in the Indian Penal Code. Forfeiture of property belonging to an offender or of the income of his property for a period, forfeiture of property used in or obtained by committing a crime, are all provided for in the Indian Penal Code in specific cases. In addition to this, the Criminal Procedure Code has under Sections 517 and 523 given a general power to the court to direct the destruction or forfeiture of any property used for the commission of any offence.
(3.)The Court would no doubt be slow to pass an order for forfeiture in cases of mere suspicion under Section 523, but it would have less hesitation in refusing to restore property to the owner who is suspected to have used it for the commission of an offence. The power to order restoration is discretionary and the court is not bound to exercise it. See Vilmont v. Bentley (1887) 18 Q.B.D. 322 at 327. According to Bice v. Jarvis (1885) 49 J.P. 264, he could not maintain an action for its recovery without proving that it was withheld wrongfully.