S.J.Hyder - (1.) IN a case of theft the Station Officer INcharge police station Itwa seized a truck bearing No. U. P. K. 1240. After investigation he submitted a final report and in consequence the case was dropped.
(2.) NIAZ Ahmad Opposite Party 1 and Haqiqullah applicant made two separate applications by means of which each of them claimed that the truck may be restored to his possession. The Magistrate after hearing the parties and on a perusal of the evidence produced by the parties passed an order dated 8th August 1977 directing that the truck shall be restored to the possession of Haqiqullah. Niaz Ahmad Opp. party feeling aggrieved by the said order preferred an appeal under Section 454 of the Code of Criminal Procedure Act 2 of 1974 before the Sessions Judge Niaz Ahmad Opposite Party applied for permission to file additional evidence and the said request was allowed by the court of appeal. On a consideration of the additional evidence produced before it the Court of appeal set aside the order of the Magistrate dated August 8, 1977. The Court of appeal directed that the truck shall be restored to the possession of Niaz Ahmad. Haqiqullah has preferred this revision against the order of the court below dated 19-1-1979. On behalf of the applicant Haqiqullah two arguments have been pressed before me in support of the: revision. In the first place the learned counsel has submitted that additional, evidence could not be taken by the court below in an appeal preferred under Section 454 of Code of Criminal Procedure. It has next been contended that the order dated August 8, 1977 had been passed by the Magistrate in the exercise of his powers under Section 457 CrPC and no appeal under Section 454 CrPC lay against the said order. The learned counsel for the opposite party has controverted both the submissions made on behalf of the applicant. In the alternative he has contended that th? order passed by the Sessions Judge on 19-1-1978 may be treated to be an order passed in the exercise of its revisional jurisdiction under Section 397 of the Code of Criminal Procedure, and, even if production of additional evidence could not be allowed in an appeal filed under Section 454 of the Code, such evidence could be admitted by the Sessions Judge while exercising his revisional jurisdiction. In support of the submission made in the alternative, learned counsel has placed reliance on sub-section (1) of Section 399 of the Code.
(3.) CHAPTER XXIX of the Code, which comprises of Sections 372 to 394, deals with appeals. Section 372 lays down that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for time being in force. Section 373 provides for appeals from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour. Section 374 provides for appeals from orders of conviction passed by the different courts. Section 377 deals with appeals by the State Government against the order of sentence, while Section 378 empowers the State Government to prefer appeals against orders of acquittal in certain cases. There are some other sections in the said CHAPTER which permit appeal in certain other cases. Section 391 of the Code, which appears in the fasciculus of provisions dealing with appeals permitted under CHAPTER XXIV, inter alia, provides that in dealing with any appeal under this CHAPTER, the Appellate Court if it thinks additional evidence to be necessary shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is the High Court, by a Court of Sessions or Magistrate. It, therefore, follows from the language employed in Section 391 itself that additional evidence under the said section may be permitted by the court only when an appeal is preferred under any of the provisions contained in CHAPTER XXIX of the Code. Section 454 is included in CHAPTER XXXIV which bears the heading "Disposal of property." An appeal preferred under Section 454 cannot, therefore, be deemed to be an appeal preferred under CHAPTER XXIV. The court below was, therefore, not justified in admitting the additional evidence filed by Niaz Ahmad and deciding the appeal solely on the basis of such additional evidence. As already stated above the truck in dispute had been seized by the Station Officer incharge police station Itwa during the course of investigation. Seizure was reported by the Station Officer to the Magistrate under the provisions of the Code, however, a final report was submitted in the case which never reached the trial stage. Section 452 of the Code empowers a court to make necessary orders for disposal of property at the conclusion of the trial. Section 453 of the Code lays down that when any person is convicted of any offence which includes, or amounts to theft, or receiving stolen property, and it is proved that any other person bought this stolen property from him without knowing or having reason to believe that the same was stolen and that any money has on his arrest been taken out of the possession of the convicted person the court may on the application of such purchaser and on the restitution of the stolen property to the person entitled to the possession therefor, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him. Section 454 of the Code permits an appeal by any person aggrieved by an order made by a Court under Section 452 or Section 453. No appeal is provided against an order passed under Section 457. Thus the contention of the learned counsel for the applicant, that no appeal under Section 454 of the Code lay against the order of the Magistrate dated August 8, 1977 must be upheld.;