1. The applicant Joharilal was convicted and sentenced to undergo four months rigorous imprisonment and to pay a fine of Ha. 800 under Section 379, Penal Code, and to pay a fine of Hs 200 under Section 26 (l) (g), Forest Act, by the First Class Magistrate, Chhindwara ; but in appeal he was acquitted by the Additional Sessions Judge, Chhindwara, who made the following observations:
The whole thing is thus in a confused state. I give benefit of doubt to both the accused and acquit them. I am not ordering a fresh trial There are, however, some aspects of the transaction on which the accused may be retried. The Forest Department may have the legal position examined in the light of material at their disposal and is at liberty to start proceedings against the accused Joharilal, in such matters as have not been the subject-matter of decision in this case.
2. The case related to wood, timber and charcoal and the trial Court ordered their forfeiture to His Majesty, but the then Additional Sessions Judge, Chhindwara, who, as shown, acquitted the accused, made no reference to that order. Joharilal accordingly made an application to the present Additional Sessions Judge, Chhindwara, who, relying on the aforesaid re-marks of his predecessor, dismissed the application. He has now coma up in revision to. this Court and claims that the property in question should be restored to him.
3. The observations to which I have referred were made on 27th August 1946 and an appeal has not been filed against the applicant's acquittal nor have other proceedings been instituted against him. This does not, however, connote that the applicant was in lawful possession of the property in question and the aforesaid observations clearly show that his acquittal was based on a benefit of doubt. The position is, therefore, not the same as that in Budhulal v. Sukkman, I.L.R. (1942) Wag. 769 : A.I.R. 1942 Nag. B2: 43 Cri LJ 698 in which Niyogi J. had held that a person who has come into possession in a. lawful manner of articles seized from his custody is entitled to get them back under Section 617, Criminal P. C. The accused in that case had not committed the theft of ornaments but had received them from a woman who was in lawful possession of them and had directed him to pledge them with another man as security for a loan of Bs. 100.
4. It is, as was pointed out in Basul Khan v. Emperor : AIR1927Cal61 an ordinary rule of law that when an accused is acquitted of a charge of theft and the property found with him is not found to be the subject of theft, he is entitled to recover that property ; but where the property is found to be the subject of theft and an acquittal is due to incomplete evidence, the property will not be delivered to him In Kanaga Sabai v. Rama. muni, 84 Mad. 94 : 11 Cri. L.J. 139 White C. J. held that even where a party is charged with theft and that charge is dismissed or the party is discharged, an order can be made for the delivery of the subnet-matter of the alleged theft to some party other than the party in whose possession the property was found on the date of the alleged theft.
5. From the material on record it can be reasonably found that the applicant was not in lawful possession of the entire property in question; and it seems to me that the appellate Court should have ordered a re-trial. As it is, that Court was specifically of the view that proceed, in should be started against the applicant but, although action of that kind has not been taken, it is open to me for the reasons given in the Madras and Calcutta cases supra not to interfere with the order of the trial Court forfeiting the property to His Majesty. The applicant will then be at liberty to attempt to establish his title to it or to part of it, but that is a matter for him. The application is dismissed.