(1) This is a revision petition against an order of the District Magistrate directing the return of 23 bundies of jute or the value thereof to respondents 1 to 4 under the following circumstances.
(2) On a report by the two petitioners, the S. H. O. Vizinagaram, charge-sheeted the respondents for an offence under S. 379, Penal Code. The case against the respondents was that they stole 23 bundies of jute which the two petitioners soaked in a tank known as 'Juvvi' tank. The defence was that the jute bundies did not belong to the complainant but were the property of the accused (respondents). The Sub-Magistrate who tried the case accepted the prosecution version, rejected the defence and convicted them under S. 379 and sentenced them to a fine of Rs. 25/- each. An appeal was filed before the District Magistrate, Vishakapatnam against the conviction. Subsequently the trial Magistrate passed an order under S. 517, Criminal P. C., directing the return of the jute to the complainant.
Next day, the accused filed an application before the trial Court to vacate this order bringing to the notice of the Court that an appeal had been filed against the conviction and sentence and that no order could be passed pending disposal thereof. The Magistrate cancelled his previous order. Later on the appellate Magistrate set aside the conviction and sentence passed on the accused, and also directed that the jute bundies should be recovered from P. Ws. 1 and 2 (petitioners herein) and returned to the accused and that if the jute was not available for any reason their value which was fixed at Rs. 500/- should be recovered from the petitioners, kept in Court till revision time was over and then paid to the accused.
(3) The respondents sought to enforce this order of the appellate Magistrate before the Sub-Magistrate who originally tried the case. On notice, the petitioners raised an objection that the Court had no jurisdiction to pass any order as the properties were already disposed of. As this objection was disallowed, the present revision petition is filed. In support of this, Mr. Rama Rao has put forward three contentions :
(i) It was not competent for the District Magistrate to set aside the order passed originally by the Magistrate under S. 517, Cr. P. C., when no separative appeal has been filed against that order by the accused.
(ii) Since the property was delivered to the petitioners without any bond as required under S. 517 (4), Criminal P. C., and as it was sold away and therefore not within the process of Court, the appellate Court had no jurisdiction to pass any order under S. 520, Criminal P. C., as to the disposal of the property.
(iii) Since no notice was issued to the petitioners before passing an order directing redelivery of the jute to the accused it is illegal and unenforceable.
(4) To the first contention, S. 423 (1) (d) read with S. 520, Criminal P. C., in my opinion, furnishes a complete answer. It cannot be disputed that a direction by the appellate Court for return of the property to the accused who was acquitted and found to be the owner of the jute is not consequential to the order of acquittal. The conviction was based by the trial Magistrate on the finding that the property belonged to the complainant, and was stolen by the accused. When this is reversed and the conclusion is reached that the jute really belonged to the accused and not to the complainant, it is proper order to direct the return of the articles to the real owner and is consequential or incidental to the order of acquittal within the meaning of S. 423 (1) (d). Criminal P. C. In my opinion, a court of appeal can pass under S. 423 (1) (d) an order of the nature contemplated under S. 520 and no separate appeal is necessary against the order under S. 517, Criminal P. C., to enable a Court of appeal to pass such orders as may be just and also consequential to the order of acquittal.
(5) As regards the second contention, which consists of two parts, reliance was placed by Mr. Rama Rao on two decisions of Allahabad High Court namely, -- 'Bansi Dhar v. Brij Basilal', AIR 1930 All 35 (A), -- 'Bishambhar Rai v. State', : AIR1953All199 (B). I do not think that -- 'Bansi Dhar v. Brij Basilal (A)' really helps the petitioners. That case proceeded on the footing that the house which was the subject-matter of the petition to the High Court was not the property in respect of which the offence was committed and, therefore, S. 517, Criminal P. C., was inapplicable.
But the other decision in -- 'Bishambhar Raj v. State (B)' supports the argument of Mr. Rama Rao to a great extent. There while discharging an accused person charged with an offence of theft of camels the Magistrate directed delivery of the camels to the complainant. Against that order the accused preferred an appeal which was dismissed. The matter was carried in revision to the High Court and the High Court rejected the revision petition expressing the opinion that the 'sine qua non' of an order under S. 517, Criminal P. C., is the existence of property either in the custody of Court or in the possession of any party to the litigation amenable to the jurisdiction of the Court. If the property has been disposed of and is not available to Court and if the money value is not in the custody of the Court no order could be passed under S. 517, Criminal P. C., and the only remedy for the aggrieved party is to file a suit in civil Court. With great respect to the learned Judge, I cannot accept the reasoning in support of this decision.
Section 517 enables a Court to pass an order not only in respect of property which is produced before before it or in its custody but property regarding which any offence appears to have been committed. It means that it is not essential that the property should be in Court. Such property includes, by virtue of the explanation, the money equivalent of it. The explanation to S. 517 runs thus :
'In this section, the term '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 coverted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise.'
Reading the section and the Explanation together Reading the section and the Explanation together it is manifest that a Court has got power to make an order under S. 517, Criminal P. C., not only in respect of the property either in Court or in possession of the parties concerned, but the money equivalent thereof when it is sold. The explanation is of very wide import and enables the Court to pass an order in respect of either money obtained by sale thereof or other property exchanged for the property originally in deposit or under control of the party. There can, therefore, be no warrant for the restriction read into S. 517, Criminal P. C., in -- 'Bishambhar Rai v. State (B)'.
(6) My view gains support from a rulling of the Calcutta High Court in -- 'Nagendranath v. Emperor'. AIR 1934 Cal 454 (C). The following passage therein is pertinent.
'In support of this rule Mr. Mukerjee has contended that the criminal court is not powerless in circumstances such as these to give an aggrieved party the remedy which he stands in need of. He has drawn our attention to the decision of the Special Bench of the Court in the case of -- 'Pigot v. Ali Mahomed Mandal'. AIR 1921 Cal 30 (D) and to the terms of S. 517, Criminal P. C., as amended in 1923 and has argued that even though some of the logs have been used up and the rest sold to others. it is open to the criminal court to compel the opposite parties to produce such properties as may be capable or production and also to produce the money equivalent of such properties as may be incapable of production. Without disputing for a moment the power which a criminal court has got in this respect we think it will be highly inconvenient on the part of the Court now to launch upon an enquiry as to what happened to the logs, how much has been used on by the opposite parties in constructing their buildings and how much has been sold away and for what price.'
It is clear from this passage that when the property which was originally in the possession of one of the parties to the litigation is converted into money or exchanged for some other thing appropriate orders could be passed under S. 517, Criminal P. C. In my opinion, the Court retains jurisdiction to pass orders for the disposal of property, which has been converted either into money or into some other property and the fact that the property was disposed of does not take away the jurisdiction of the Court of pass appropriate orders in that behalf.
(7) In support of the contention that when once articles were delivered to one of the parties in pursuance of an order under S. 517, Criminal P. C., there is no jurisdiction to pass an order calling upon the party to redeliver the same to another person though he might be found to be the owner, -- 'Jhumak Singh v. Tota Mahto', AIR 1923 Pat 84 (E) was cited. I cannot say whether that rulling is applicable to the present one and was correctly decided or not, because it is not known how the question arose there and under what circumstances that decision was given. All that appears is that before the parties came to Court, the police had already delivered the properties to one of the parties. That case does not therefore render much assistance.
(8) If the contention of Mr. Rama Rao should be accepted in this behalf, S. 520 becomes otiose. His argument comes to this : that when once a trial Court passes an order under S. 517 and the property is delivered to one of the parties, an appellate court cannot give any direction for the redelivery of that property to the real owner. Such an argument overlooks S. 520 which clearly confers a power upon an appellate court to vary or modify or set aside orders passed under S. 517, Criminal P. C. There is no provision in the Code which limits the powers of the Court in the manner under S. 520. Apart from the clear provisions of Ss. 520 and 423 (1) (d), Criminal P. C., there is also authority for this position in -- 'Arunachela Thevan v. Vellachami Thevan', AIR 1923 Mad 324 (F).
(9) Now coming to the argument, based upon want of notice to the petitioner, Mr. Rama Rao calls in aid a decision of the Bombay High Court in -- 'In re, Lakshman Rangu'. 35 Bom 253 (G). Justice Chandavarkar who delivered the judgment of the Bench expressed the opinion that S. 520, Criminal P. C., did not confer jurisdiction on District Magistrate when once an appeal has been filed in the Sessions Court against his order to give directions as regards the property involved in the case and that at any rate notice should be issued to all the parties concerned before passing an order therein. It is seen that was not a case of consequential order. Itt was an order passed by the trial Court after an appeal was filed against the conviction and sentence and when the matter was before the appellate court and thus an independent proceeding. But here the order passed by the appellate Court is one that followed upon the order of acquittal. So that judgment does not furnish any analogy.
In -- 'Arunachala Thevan v. Vellachami Thevan (F)' Justice Krishnan expressed the opinion that there is no rule of law that says that such notice is absolutely necessary. Whatever may be said in a case where an order is passed under S. 520, Criminal P. C., long after the disposal of the appeal, I do not think there is any necessity to issue a notice when the order is consequent upon acquittal on the finding that the properties belonged to the accused and especially to a person to whom properties were delivered improperly or illegally. In this case, the Magistrate in violation of the terms of sub-s. (3) directed delivery of the jute to the complainant notwithstanding the fact that an appeal was filed against his judgment and it was pending. There was, therefore, no valid order entitled the petitioners to keep0 the properties with them. Therefore, the argument based on want of notice has to be repelied. In the result, the petition is dismissed.