M.C.Desai, J. - (1.) In this application an order passed by the Sessions Judge, Mainpuri, under Section 520 of the Code of Criminal Procedure is challenged. Mool Chand, opposite party, and others were prosecuted before an Assistant Sessions Judge for the offence of Section 380, I. P. C. It was alleged that they committed theft in the cloth shop of the applicant Talawar Jha and stole pieces of cloth. During the trial some pieces of cloth admittedly recovered from the houses of Mool Chand and others were produced before the court. Mool Chand admitted that the cloth was recovered from his possession but claimed that it belonged to him. Others denied the recovery from their possession and did not lay any claim to the cloths said to have been recovered from their possession. The learned Assistant Sessions Judge convicted some of the accused and acquitted the others including Mool Chand. He ordered under Section 517 of the Code that the pieces of cloth which bore the seal or signature of Talawar be delivered to him and that the other pieces which bore neither his seal nor his signature be returned to Mool Chand. Mool Chand filed an application under Section 520 against the order delivering some pieces of cloth to Talewar, in the court of the Sessions Judge. No appeal or revision against the principal order of the learned Assistant Sessions Judge convicting some accused and acquitting the others was filed in the sessions court and none was pending before the learned Sessions Judge, in whose court the application under Section 520 was presented. The dispute in the proceeding under Section 520 was whether the cloth bearing the seal or signature of Talawar belonged to him or to Mool Chand. The learned Assistant Sessions Judge had been satisfied about the genuineness of Talewar's seal or signature on it and, therefore, had ordered its delivery to him, though he was not satisfied that Mool Chand had stolen it. The learned Sessions Judge came to the conclusion that the seals and signatures could not be accepted as genuine; he, therefore was not satisfied that the cloth belonged to Talawar. He was also not satisfied that it belonged to Mool Chand. Therefore, he set aside the order of the learned Assistant Sessions Judge about its delivery to Talewar and directed that it should remain in police custody for one month and that if in this period no order from a civil court was received about its disposal, it should be returned to Mool Chand, from whose possession it had been recovered, on the expiry of the period. This is the order challenged by Talewar before me.
(2.) Two questions, and both important, arise in this case. One is whether Section 520 confers the right upon a party to move an application before a court of appeal, confirmation etc. for modification, alternation, etc., of an order passed under Section 517 or merely confers a power upon a court exercising appellate, confirmatory etc., jurisdiction in the case to pass such an order. In other words the question is whether the power of Section 520 can be exercised by any court to which an appeal may lie or which may exercise the power of confirmation etc. or only by that the court which has already been seized of the matter in exercise of its appellate, confirmatory etc. jurisdiction. The second question which will arise only if it is held that the power of Section 520 can be exercised by any Court to which an appeal may lie or which may exercise the power of confirmation etc., is whether the court has jurisdiction to question the principal order of the inferior court and to modify, alter etc., an order under Section 517 even though it was just and proper according to the principal order.
(3.) Section 520 reads as follows: "Any court of appeal, confirmation, reference or revision may direct any order under Section 517 .... passed by a court subordinate thereto, to be stayed pending consideration by the former court and may modify, alter or annul such order and make any further orders that may be just." My view is that this provision simply confers power upon a court exercising appellate, confirmatory etc. jurisdiction over the principal order passed by a subordinate court to modify, alter etc., an order passed by it under Section 517 and does not confer a right upon a party aggrieved by the order to make an application to any court which may have the power of exercising appellate, confirmatory etc., jurisdiction to modify, alter etc., the order even though it has not assumed appellate, confirmatory etc., jurisdiction over the case. The weight of authority is against the view that I am disposed to take. One of the earliest cases taking the opposite view is Empress v. Joggessur Mochi, ILR 3 Cal 379 'A), in which it was held that the words "court of appeal" do not necessarily mean the court in which an appeal is pending. It was observed that a person who is convicted may not be interested in the order passed under Section 517 and may not file an appeal against his conviction and that it would be unreasonable to put such a construction on Section 419 as shall make the power of the Judge to modify, alter or annul a Magistrate's order convicting one, contingent on the accident whether another person has or has not chosen to appeal" (p. 381). (Reference to Section 419 is to the Section of the old Criminal Procedure Code.) The observation quoted above sounds more like judicial legislation than like judicial interpretation; the question is not what should be the right law but what is the actual law. The Legislature had the power not to provide for an appeal against an order passed under Section 517 and if it chose not to make it appealable, it is not given to a court to treat it as appealable. The party aggrieved by a wrong order under Section 517 is not without his remedy; the doors of civil courts are open. Further he can always apply in revision against the order; all orders passed by inferior criminal courts are revisable by the High Court, vide Section 435 read with Section 439 of the Code. It is also not correct to say that the Legislature has made the power of modifying, altering etc., an order under Section 517 contingent on the accident whether another person has or has not filed an appeal from the principal order; according to the interpretation that I place upon the provision it has added to the powers of a court exercising appellate, confirmatory etc. jurisdiction against the principal order. Finally I may point out that the High Court actually did not interfere with the order of the Magistrate. In Queen Empress v. Ahmed, ILR 9 Mad 448 (B), it was observed that "any court of appeal" does not mean a court of appeal before which an appeal is pending but a court to which an appeal would ordinarily lie. No reasons are given for the interpretation. Another old case is U. Po Hla v. Ko Po Shein, 30 Cri LJ 540: (AIR 1929 Rang 97) (FB) (C), decided by a Full Bench of the Rangoon High Court; it followed the case of Joggessur (A) (supra). One reason which weighed with the Full Bench was that a court which has already assumed appellate jurisdiction has power to modify an order passed under Section 517 and there would have been no necessity of enacting Section 520. The 'powers of an appellate court are detailed in Section 423. It may dismiss the appeal if it considers that there is no sufficient ground for interference or may pass any of the orders mentioned in Clauses (a), (b), (c) and (d) of Sub-section (1). The order mentioned in clause (d) is "make any amendment or any consequential or incidental order that may be just or proper". It is on account of this provision that it was observed by the Full Bench that an appellate court had already been invested with the power of modifying an order under Section 517 and no provision was necessary to confer this power upon it. With great respect I disagree. The power conferred by Section 520 is in terms different from that conferred by Section 423 (1)(d). The power conferred by Section 423(1)(d) is to be exercised only if the appellate court does not dismiss the appeal; if it dismisses the appeal, it cannot exercise that power. There may be cases in which though the appellate court dismisses the appeal from the main order it would find justification for modifying, altering, etc. an order passed by the trial court under Section 517. Then the words "make any amendment or any consequential or incidental order that may be just or proper" may not be said to mean "modify alter or annul a consequential or incidental order already passed by the trial court". The words "make any amendment" may be interpreted to mean any amendment made in the order under" appeal, and the words "any consequential or incidental order" may be interpreted to mean any order that arises out of the appellate order or is incidental to it. Consequently it can be argued with some show of reason that Section 423 (1)(d) does not authorise an appellate court to modify or alter or annul an order passed by the trial court under Section 517. Moreover the Section does not deal with the powers of a court of confirmation or reference and it is not correct to say that Section 520 as interpreted before would serve the same purpose as Section 423 (1) (d). In any case Section 520 might have been enacted by way of abundant caution to remove the doubts mentioned above. The real controversy before the Full Bench was whether the words any court of appeal" mean any court to which an appeal ordinarily lies or any court to which an appeal lies in the particular case and not whether they mean only a court to which an appeal has actually been filed. Strictly speaking it was, therefore, not called upon to lay down that the words should not be given the restricted meaning of a court in which an appeal has already been filed. Empress of India v. Nilambar Babu, ILR 2 All 276 (D), decided under Act No. X of 1872, was relied upon in the case of Ahmed (B), but it did not lay down that an order under Section 520 can be passed by a superior court without there being an appeal from the principal order. In that case an application was made to the High Court to revise an order under Section 517; the High Court had the power to revise it under Section 517; the High Court had the power to revise it under Section 439, Cr. P. C., and there did not arise my question of applying the provision of Section 520. In Sabhapati v. Ram Kissen AIR 1936 Cal 185 (E), the words "any court of appeal" were held to mean a court to which an appeal would ordinarily lie and not necessarily a court to which an appeal has been presented; the court relied upon some of the cases discussed above and did not give any reason for its view that there was no justification for the restricted interpretation sought to be put upon the words. In Walchand v. Hari Anant, AIR 1932 Bom 534 (F), a Full Bench of the Bombay High Court followed the view of the Rangoon High Court expressed in the case of U Po Hla (C) (Supra). The real controversy before this Full Bench also was whether the power under Section 520 could be exercised by a court to which an appeal would ordinarily lie or by a court to which an appeal would lie from the principal order actually passed in the case. The facts were that a Magistrate of the first class acquitted the accused of the charge of theft and ordered the property said to have been stolen and recovered from his possession to be delivered to the complainant. The accused applied to the High Court for revision of the order passed under Section 517. The High Court could revise the order under Section 439 and did not have to rely upon the provision of Section 520. The Full Bench said nothing more than the Full Bench of the Rangoon High Court in support of the view taken by them. In re Khima Rukhad, ILR 42 Bom 664 : (AIR 1918 Bom 186) (G), it was observed that it is not essential that an appeal should have been preferred to the court of appeal from the principal order. It, however, held that the words "any court of appeal" mean any court to which the appeal would lie against the principal order passed in the particular case. This latter view was disapproved; by the Full Bench in the above case of Walchand (F). In Cheranji Lal v. Jabar Chand, AIR 1953 Madh-B. 149 (H), Dixit J. followed the case of Walchand (F) (supra) and held that it is not necessary that an appeal should have been preferred from the principal order before the appellate court could modify, alter etc., a trial court's order under Section 517. In Emperor v. Debi Ram, ILR 46 All 623 : (AIR 1924 All 675 (2)) (I), Daniels J. set aside a District Magistrate's order modifying a Magistrate's order under Section 517 on the ground that the District Magistrate was not a court of revision. He did so in the course of a revision pending before him against the principal order of acquittal and therefore, the question whether Section 520 confers a power upon a party to approach a court of appeal, confirmation etc. or empowers a court that has already assumed jurisdiction as a court of appeal, confirmation etc. to modify an order under Section 517 did not arise in the case. The principal order was impugned before the District Magistrate, but since he was held to be not a court of appeal, confirmation, reference or revision, he was held not to have the power of modifying, altering etc. an order under Section 517. In Mst Nabban Tawaif v. Shyam Lal, Cri Revn No. 695 of 1932 (J) it was held by a Bench disagreeing with Daniels J. that an order under Section 520 can be made by any court to which an appeal would ordinarily lie from the principal order and the Bench decision was followed by Hamilton J. in Ram Dihal v. Badri, AIR 1941 All 143 (K). The point decided in the cases of Ram Dihal (K) and Mt. Nabban Tawaif (J) was that "any court of appeal" means any court to which an appeal would ordinarily lie and not any court to which an appeal would lie from the particular principal order passed in the case and not whether it means a court that has already assumed appellate jurisdiction over the principal order. The question decided by Soni J. in Mahanta Singh v. Het Ram, AIR 1954 Punj 27 (L), also was different, it being whether a District Magistrate, who was seized of an application for revision of a Magistrate's order of acquittal, could revise his order passed under Section 517 or not. The court revising the order under Section 520 had already assumed jurisdiction as a court of revision against the principal order and, therefore, the question under consideration did not arise there.;