K. Bhimiah, J.
1. The petitioner in Criminal Revision Petition No. 276/67 is the complainant and Petitioners in Criminal Revision Petition No. 372 of 1967 are accused in C.C. No. 8194 of 1966 on the file of the Additional First Class Magistrate, Bangalore, who will be hereinafter referred to as the complainant and accused in the case.
2. The complainant filed a complaint against the accused for the offence punishable under Section 406 of the Penal Code. The learned Magistrate took cognizance of the complaint. The allegations in the complaint are that the prints and the publicity materials of the picture 'BEES SAAL BAAD' relating to Madras City, Tamilnad and Malabar were entrusted to the accused with a direction to hold the same on behalf of the complainant as Benamidars and to exploit the rights of distribution in the name of the complainant and make payments to him as and when they realized the amounts from exploitation. The accused went on following the directions upto 1st April 1964 and thereafter contrary to the directional not only tried to assert the rights of ownership in themselves but also misappropriated the funds with criminal intention. Further, according to the complainant the accused persons realized huge amounts of money in the months of June, July, August and September, 1964, and that they failed to account for such that was realized and also failed to give the percentage of profits as agreed to between them by an oral agreement.
3. During the pendency of the proceedings, on 14.8.1967, the complainant moved the Court to direst the Alankara Chitra (Private) Limited to produce the three prints of 'BEES SAAL BAAD' and the publicity materials relating to that picture before Court as they would be necessary for him to prove his case. After hearing the corn plainant's advocate, the Court directed Alankar Chitra (Private) Limited to produce the three prints and the publicity materials that were with them. Accordingly, they were produced by Alankar Chitra (Private) Limited.
4. On 19.8.1967 the accused moved the Magistrate under Section 516-A of the Criminal P.C. for delivery of the prints and the publicity materials of the film 'BEES SAAL BAAD' to them immediately as they were legally entitled to retain them in their custody pending disposal of the case. The learned Magistrate after hearing the matter in detail came to the conclusion that at that stage the Criminal Courts could not either withhold or refuse to hand over the custody of the three prints and publicity materials of 'BEES SAAL BAAD' to the accused nor that he could put a condition that even after these prints and publicity materials were handed over to the accused pending disposal of the complaint, they should neither distribute nor exhibit the film. Therefore, he passed an order as follows:
Acting under the provisions of Section 516-A of the Criminal P.C.I hereby direct that the prints and publicity materials of the picture 'Bees Saal Baad' that are produced before this Court shall be handed over to the accused persons on their entering into a bond in a sum of Rs. 10,000 to the effect that in the event of the complainant winning the civil suit, they shall pay the chare of the complainant as per the terms of the alleged oral agreement and if they fail to abide by decision of the Civil Court, the bond executed in favour of the Court shall be forfeited and the bond amount shall be given to the complainant.
The complainant being aggrieved by this order, approached the Magistrate for an interim stay for 15 days to obtain copies of the order and to file a revision before the High Court. The learned Magistrate rejected the petition and passed the order as under:
The prints and publicities shall be returned to the accused on their entering into a bond in a sum of Rs. 2,500 to produce before this Court whenever they are ordered to do So.
This order is dated 4.9.1967. Aggrieved by this order as well as the order dated 4.9.1937 the complainant has filed a revision in Criminal Revision No. 276 of 1967 and accused have filed a revision in Criminal Revision Petition No. 872 of 1967. As both these matters relate to the same proceedings pending before the learned Magistrate, they are dealt with together and disposed of.
5. The short question for decision in this case is whether the orders passed by the learned Magistrate are beyond the scope of Section 516-A of the Code of Criminal Procedure.
6. Mr. G.B. Raikar, learned Advocate for the complainant contended that the learned Magistrate instead of passing the order for the interim custody of the prints and publicity materials as required under Section 516-A, Criminal P.C. has passed the final order giving possession of the prints and publicity materials to the accused. He urged that such a final disposal of the materials produced before the Court in a criminal case is not in accordance with the provisions of Section 516-A, Criminal P.C.
7 On the other hand, Mr. G.R. Doreswamy, learned Advocate for the accused contended that the learned Magistrate had jurisdiction to pass such an order in respect of the prints and publicity materials summoned and produced before the Court. He urged that the learned Magistrate has respected the Civil Court's order and therefore, according to him, the learned Magistrate has not gone beyond the scope of provisions of Section 516-A of the Code of Criminal Procedure. I do not see any merit in the contentions of Mr. Doreawamy while I see force in the contentions put forward by Mr. Raikar.
8. The provisions of Section 516-A, Criminal P.C., enable a Magistrate to pass orders regarding the custody or disposal of the property during an enquiry or trial, which means that the Magistrate by an order under Section 536-A directs only interim custody of property pending conclusion of the enquiry or trial before the Court. But, the learned Magistrate appears to have exceeded his limits in not only delivering the possession of the prints and publicity materials, but also in imposing a condition to abide by the decision of the civil Court. The learned Magistrate posed the following question for determination in the course of his Order:
Whether the prints and the publicity materials of 'BEES SAAL BAAD' that are now produced before Court should be given to the custody of the accused pending the disposal o the case or not.
He answers this question in the affirmative. But, while passing the final order, be has nowhere stated in the operative portion of his order that the properties i.e., the prints and publicity materials of the picture 'BEES SAAL BAAD' should be handed over to the accused pending disposal of the enquiry or trial in the case. This is the first infirmity in the order passed by the learned Magistrate. Further, the learned Magistrate has gone beyond the scope of the provisions of Section 516-A. Criminal P.C. in imposing conditions which related to proceedings pending between the parties is respect of the same matter in the civil Court. This condition ,is not in conformity with the provisions of Section 516-A, Criminal P.C.
9. Mr. Doreawamy in the course of his argument contended that the prints and publicity materials relating to 'Bees Saal Baad' are liable to decay and the parties would sustain heavy loss if they are not screened well in time. This argument appears to have not been advanced in the trial Court. There is not a whisper about the natural decay or otherwise in respect of these properties. Therefore, it cannot be said that while ordering possession of these properties in favour of the accused the learned Magistrate has applied his mind to the latter portion of Section 516-A, Criminal P.C.
10. Mr. Raikar relied upon a decision in S.G. Tambe v. State of Delhi 1957 Cri LJ 92 (Punj) wherein his Lordship the Chief Justice of Punjab High Court his observed in para. (10) of the judgment as follows:
I entertain no doubt in my mind that S. Hardayal Singh had no jurisdiction to make over this large sum of money to Dr. Gurbux Singh for safe custody or to allow its identity to be destroyed. It is a recognized rule of practice in all civilized countries that property recovered from the possession of a person charged with a crime is retained intact in Court for purposes of identification until such time as the case is concluded. If the property is subject to a speedy or natural decay it is open to the Court to make an order for its sale or disposal, but if the property does not amethyst decoration the Court can only make an order for its custody pending the conclusion of the inquiry or trial. In actual practice an order for custody of property is confined only to articles such as animals, vehicles and perishable goods, for the Court has no funds for feeding the animals, no accommodation for keeping motor vehicles and no arrangement for preserving the goods which are perishable. If any such articles come into the possession of a Court, it is open to the presiding officer to provide for their safe custody until such times as the case is concluded. Provisions can be made only for their cutely and not for their conversion. The property in the present case consisted solely of a bundle of currency notes and if the Court was anxious only to provide for their custody nothing could have been easier for the Court than to direct that they be kept carefully in a safe in the Malkhana or in a vault of the local Treasury, it is contended on behalf of Mr. Tambe, and in my opinion with a certain amount of justification, that the currency notes were handed over to Dr. Gurbux Singh not wish the object of providing for their custody but with the object of destroying their identity or of treating Dr. Gurbux Singh as a favoured creditor or of enabling him to earn a profit of Es. 600 pheromones by way of interest alone. The Court had power only to provide for the custody of the currency notes but not to provide for their conversion. Legal authority has obviously been used as a cloak to cover the Magistrate's illegal conduct.
In the instant case also it is clear that delivery of possession of prints and publicity materials to the accused for distributing and exhibiting them, would enable them to earn money and further continue to commit the offence of breach of trust as contended by Mr. Raikar. The complainant's case has been that during 1964 the accused exhibited and explicated this picture and they did not pay him the money out of the profits that were due to him; it was on account of this, is got them seized and produced before the Court. The learned Magistrate instead of making arrangements for its interim custody, has gone beyond his powers to investigate into the claims of both the parties and ultimately passed the final order delivering the possession of the prints and publicity materials to the accused. His order exceeded the scope of Section 516-A, Criminal P.C. The learned Magistrate appears to have been guided by certain interim orders passed by the Civil Court in the civil proceedings pending between the parties. Suffice it to say that the Civil Court has not adjudicated finally on the points at dispute between the parties. In the orders which is extracted and quoted in the course of the order passed by the learned Magistrate, it is seen that only at those stages, the civil Court was not inclined to pass orders, which the complainant as a plaintiff requested the Court to do.
11. The learned Magistrate has relied upon a commentary at page 8268 of the Code of Criminal Procedure, Vol. IV, 16th Edition by Sohani, in support of the order passed by him. What the learned commentator has stated in the course of the passage relied upon by the Magistrate is that the Magistrate while passing an order under Section 516-A should not pass an order which is conflicting with the order passed by the Civil Court. In the instant case even if the learned Magistrate had passed an order for retaining the prints and publicity materials in the Court in safe custody it would not have been in conflict with the interim orders passed by the civil Court. He appears to have erroneously applied the principle enunciated by the learned author, when the complainant wanted these materials to be summoned and produced before the Court in order to prove his case, and when the Court allowed his request, all that the Court was required to do under Section 516-A was to keep these materials in the Court's custody and proceed to hear the matter expeditiously if such a request had been made by either of the parties.
12. For the reasons stated above, the orders under revision in Criminal Revision Petition No. 276 of 1967 and Cr.R.P. No. 872 of 1967 are not sustainable in law and liable to be set aside as the Magistrate has gone beyond the scope of the provisions of Section 516-A, Cr.P.C. in finally giving possession of the prints and publicity materials to the accused. Therefore, both the orders under revision are set a3ide. The Magistrate is directed to keep the prints and publicity materials in safe custody in his Court and take up the trial of the case pending on his file and dispose it of expeditiously, if necessary, by taking the case for trial from day to day.