1. P.W. 7 is the petitioner from whom one imitation stone and 12 diamonds were recovered in connection with Criminal Case No. 35/5/56. The Additional District Munsif and First Class Magistrate of Secunderabad, in his order discharging the accused, observes that P.W. 8 (the complainant) and P.W. 9 recognised these articles as belonging to the complainant and from this he deduces that the ownership of these diamonds and stones and another lock was with P.W. 8 and also concludes that they were stolen.
He seeks to construe the decision in Muthiah Muthirian v. Vairaperumal Muthirian, : AIR1954Mad214 , as enjoining upon him to give possession of these articles to the complainant in the case. The revision application filed by P.W. 7 before the District Magistrate, Secunderabad, against the orders of the learned Munsif-Magistrate was dismissed thereby upholding the reasons given, by the trial Court for departing from the general principle that the property produced before a Court regarding which any offence appears to have been committed or which had been used for the commission of any offence should be returned to the person from whom possession of them was taken.
2. In this application, the learned counsel on behalf of the petitioner contends that no case has been made out for departing from the normal rule of ordering the return of the property to the person from whom they were taken. The facts of this case reveal that the possession of the articles were not taken from the accused. So it cannot be said that the dispute relating to the return of the property here is between the complainant and the accused only. On the other hand, P.W. 7, the purchaser, has acquired possession and admittedly the properties were recovered from him.
3. If there is any dispute in regard to the return of the articles, it is between the complainant and the purchaser. In my view, when such circumstances as these exist, the decision in : AIR1954Mad214 , will not apply. The following observation therein at page 215 bears out my view.
'In normal circumstances, on acquittal or discharge the property would be returned to the person from whom it was seized ..... But when there are circumstances shwoing 'that the culprit has not claimed the property as his specifically' (the underscoring (in this report within ' ') is mine) and when there are also no grounds to hold that the property could belong to him, and the question of ownership has not been gone into in the judgment and decided one way or the other and the discharge or acquittal is based upon inadequacy or doubtfulness of the proof offered, it would be unreasonable to return the stolen property to the accused person.'
The qualifications which need be satisfied before departing from the normal rule arc clearly laid down in the above quotation.
4. The law applicable to a case where the purchaser is concerned and the dispute is between the complainant and the purchaser and where the case has ended in a discharge, could he said to have been covered by the observations- made by Jackson J. in V. K. Vaiyapuri Chetty v. Sinniah Chetty, 59 Mad LJ 901 : (AIR 1931 Mad 17). At page 903 (of Mad LJ) : (at p. 17 of AIR), after noticing the decisions in regard to the discretion vested in the Court under Section 517 of the Code of Criminal Procedure, the learned Judge observes :
'The general effect of these rulings is that the Magistrate has a discretion to decide the question of possession, but it is very rarely that that discretion if properly exercised will go beyond restoring the property to the party from whom it was taken.'
Later on we find the following :
'It may seem, therefore, that the simple rule should be that if no crime is made out the Magistrate should return the property to the party from whom it was taken'.
And later on after referring to Srinivasamurthy v. Narasimhulu Naidu, ILR 50 Mad 916 : 53 Mad LJ 609 : (AIR 1927 Mad 797), it was observed :
'It should be returned to the person from whom it was seized unless there are special circumstances which would render such a course unjustifiable. The mere fact that two parties are quarrelling about possession is not one of the special circumstances which take a case out of the general rule.'
There it was a case of the accused claiming the possession of the omnibus, and the omnibus was ordered to be delivered to the accused. In the decision in Sitaiah v. State of Andhra, 1956 Andh WR 387: (AIR 1957 Andh Pra 1024), Bhimasankaram J. has not stated anything contra and it may be observed that the Supreme Court held in Pushkar Singh v. State of Madhya Bharat, : AIR1953SC508 , that the order to return the property to the widow of the complainant when the finding is that no offence was committed in respect of the sum of Rs. 463/- and that it did not belong to the complainant, was unsustainable.
The finding that an offence was committed in respect of the property has been held in that decision as necessary for conferring the jurisdiction to pass an order under Section 517 of the Code of Criminal Procedure.
5. In the instant case, the articles were seized from P.W. 7 who claimed the ownership thereof as the purchaser. The case of the complainant has been dismissed and the accused was discharged and the mere fact that the complainant and his witness said that they could recognise these jewels would not be enough even if the criminal court is going into the matter of ownership to establish the ownership of the complainant. In such cases the proper procedure would be to adopt the normal course of returning the articles to the person from whom they were taken. In this view, the order of the Munsif-Magistrate, Secunderabad, cannot stand and is therefore set aside. The articles will be returned to P.W. 7.