1. The facts which have given rise to this application are briefly these:
A gold Sari belonging to the complainant was stolen. This Sari was converted by the thief into gold bangles and the gold bangles were sold by the thief on the 12th of April 1917 to the present petitioner Anant. The thel't of the Sari was committed in March 1917. The petitioner paid Rs. 1.84-4-0 for the gold bangles to the thief. Subsequently he turned the gold bangles into gold and sold it in different parts. In the course of the investigation relating to the. theft, the petitioner was asked to produce Rs. 184-4-0 which sum was before the Court when the theft case was decided. The petitioner was examined as a witness in the case. The trial Magistrate made an order under Section 517 of the Criminal Procedure Code directing this sum to be paid over to the complainant whose gold ornament was stolen, In appeal the order made by the trial Magistrate has been confirmed.
2. In the application before us it is argued that the trial Court had no jurisdiction under Section 517 to make an order directing the payment of this sum to the complainant. It is urged that this sum of money is not property within the meaning of Section 517. The learned Government Pleader has relied upon the explanation to the section and has argued that this sum must be taken to represent the price which the present petitioner realized by selling the gold in parts into which he had converted the gold bangles purchased by him from the thief. The explanation provides that ' the property includes in the case of property regarding which an offence appears to have been committed not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.' Under this explanation no doubt the gold bangles into which the original ornament stolen was converted would be property with reference to which the Court could make an order. The Court could also make an order with reference to the money which was acquired by the accused by such exchange, that is the sum of Rs. 184-4-0 paid by the petitioner to the accused when he purchased the gold bangles. But the present sum before the Court is neither that money which the petitioner paid to the thief, nor is it shown to be the price which he realized by the sale of the gold. His evidence makes this quite clear. Even assuming for the sake of argument that this sum roughly represents the sum which the petitioner probably realized by the sale of the gold into which he converted the gold bangles, I do not think that the money before the Court can be treated as the sale proceeds of the gold into which the bangles were converted. It seems to me that this money merely represents the sum which the petitioner paid to the accused as price of the gold bangles, and that it cannot be treated under the explanation as property, with reference to which an offence has been committed.
3. The lower Courts treat this money as the price realised by the sale of the gold. But the conclusion does not appear to me to be supported by the evidence in the case. The money was produced as the equivalent of the price paid to the thief ; and there is nothing to show that the money before the Court is the price realised by the petitioner by the sale of the gold.
4. The money, however, is property produced before the Court, though it is not shown to be property regarding which an offence is committed. The trial Magistrate, therefore, had jurisdiction to make the order under Section 517 : but I think that the ground upon which his order is based is wrong. The proper order under the circumstances is to direct it to be returned to the person who produced it.
5. I would, therefore, order that the trial Magistrate's order as to this sum should be set aside, and that the money should be restored to the petitioner from whose possession it was originally taken during the course of the investigation.
6. This order will be without prejudice to the right, if any, of the complainant, to recover the sum from the petitioner in a suit.
7. The money brought by applicant into Court under the Magistrate's order is not ear-marked as the sale proceeds of the portions of the gold bangles he sold. All that happened was that the Magistrate ordered a sum of Rs. 184 odd, equal to what the accused received from the applicant for the bangles, to be brought by the applicant into Court. That money is not the actual coins or notes received by applicant for the bits of gold bangles he sold. Section 517 of the Criminal Procedure Code does not, therefore, apply to it. I say nothing as to whether complainant cannot recover the value of the Sari or the bangles from the applicant in a suit for conversion.
8. I agree that the Magistrate's order should be set aside and the money restored to the petitioner.