1. A dacoity was committed on the night between the 14th and 15th of October, 1953, in village Hariharpur, police station Mawai, district Barabanki at the house of one Jagpal. In connection with the dacoity Ram Naresh, Sheo Prasad, Ram Abhilakh, Inder Singh, Palli Singh, Mahadeo, Raj Karan and Ram Pratap were charged with an offence under Section 396 Indian Penal Code. Ram Abhilakh, Ma-hadeo, Raj Karan and Ram Pratap were further charged with an offence under Section 412, Indian Penal Code in respect of several articles alleged to have been recovered from their possession. The eight items of property alleged to have been recovered from the two applicants Ram Pratap and Ram Abhilakh are detailed in paragraph 5 of this miscellaneous application.
The learned Temporary Sessions Judge, Barabanki delivered judgment in the two connected trials on 3-11-1955. Then he acquitted Ram Naresh, Palli Singh, Inder Singh, Sheo Prasad, Raj Karan, Ram Abhilakh and Ram Pratap of all the charges levelled against them. Mahadeo was found guilty and was sentenced to transportation for life. As regards the material exhibits, the learned Additional Sessions Judge directed that the material exhibits be retained in custody till either the accused or Jagpal established their ownership in a Court of law. Mahadeo preferred an appeal and his conviction was also set aside in Criminal Appeal No. 573 of 1955 by this Court on January 21, 1958.
2. Ram Abhilakh and Ram Pratap had been acquitted. They were, therefore, not interested in the result of the appeal preferred by Mahadeo. Neither Jagpal nor the two applicants filed any suit for declaration of their right. After the disposal of the appeal by this Court, the two applicants before us presented an application to the Court of the Temporary Sessions Judge, Earabanki on 11th February, 1958, praying that the property recovered from the possession of the applicants be returned and delivered to them. The learned TemporarySessions Judge disposed of this application on 26th February, 1958, and held that an order had already been passed at the time of the judgment and he saw no reason to depart from that order. The-learned Judge accordingly rejected the application.
3. Now Ram Abhilakh and Ram Pratap have preferred the present application u^der Section 520 of the Code of Criminal Procedure urging that the applicants are entitled to the possession of the ornaments recovered from their possession and that they are even prepared to execute a bond with or without sureties engaging themselves to restore the property to the Court if and when so directed.
4. This application came up before one of us and on 28th March, 1960, it was directed that a copy of the order of the learned Temporary Sessions Judge be filed. The matter came up again on 15th July, 1960, and then it was referred to a Bench as two important points of Jaw were involved regarding the interpretation of Section 520 of the Code of Criminal Procedure particularly as there is a conflict of opinion between the view of a learned Single Judge of this Court and the view expressed by other High Courts.
5. That is how the matter is before us. We have heard the learned counsel for the applicant and the learned counsel for the State.
6. The two questions that fall for our consideration are:-
1. Whether such an application is entertainable only by Court which is seized of an appeal or a revision against the original order? And
2. Whether any period of limitation applies to such applications?
7. Section 520 of the Code of Criminal Procedure reads :-
'Any Court of appeal, confirmation, reference or revision may direct any order under Section 517, Section 518 or Section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just'.
8. Section 520, Code of Criminal Procedure does not occur in Chapter XXXI of the Code which deals with appeals, references and revisions. Wo may also here refer to the provisions of Section 423 (1) (d) of the Code of Criminal Procedure which permits a Court of appeal to make any amendment or any consequential or incidental order that may be just or proper. It has not been urged before us that an order under Section 517 of the Code of Criminal Procedure passed by the trial Court could not have been varied by the appellate Court hearing an appeal from the original order under the powers conferred on it under Section 423(1) (d) of the Code of Criminal Procedure.
Similarly, Section 439 (1) of the Code authorises the High Court in its discretion to exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 of the Code. We are not here concerned with the limitations imposed by Sub-sections (4) and (5) of Section 439. It is, therefore, a little difficult to understand why any provision at all should have been made for interference by a Court of appeal or a Court of refer ence or revision if those powers were already exercisable by virtue of Sections 423 and 439 of the Code.
Desai, J., who decided the case of Talewar Jha v. Mool Ghand : AIR1959All96 , was of the view that Section 520 simply conferred power upon a Court exercising appellate, confirmatory etc. jurisdiction over the principal order passed by a subordinate Court. He was of opinion that this section did not confer a right upon a party aggrieved by the order to make an application to any Court which might have power of exercising appellate, confirmatory etc. jurisdiction to modify, alter etc. the order even though it had not assumed appellate, confirmatory etc. jurisdiction over the case. He realised that the weight of authority was against his view.
It however appeared to him that the observations in the case of Empress v. Joggessur, ILR 3 Cal 379 were more in the nature of judicial legislation than like judicial interpretation. He thought (and in our opinion rightly) that the question was not what should be the right law but was what is the actual law. We are, however, of opinion that we would not be justified in reading any words which do not find any place in Section 520. Section 520 does not make any reference to the Court hearing an appeal or entertaining a revision application.
It merely refers to any Court of appeal, confirmation, reference or revision and what we have to do is to interpret these words without adding any words of our own but bearing in mind the fact that the appellate and revisional Courts have already this jurisdiction conferred on them under the provisions of Section 423 (1) (d) of the Code. We must also bear in mind the principle that the Courts will not assume any redundancy. Desai, J., was of opinion that the provisions of Section 520, Code of Criminal Procedure had added to the powers of a Court exercising appellate, confirmatory etc. jurisdiction against the principal order.
He was of opinion that the power under Section 423 (1) could be exercised only if the appeal was not dismissed. That we are of opinion is a narrow interpretation to put on the powers of an appellate Court under Section 423 of the Code of Criminal Procedure. The basic principle is that all powers exercdsable by the trial Court may be exercised fay the appellate Court. The mere fact that the word 'or' has been used after the words 'dismiss the appeal' does not mean that the powers under Sub-section (d) may be exercised only if the appeal is not dismissed.
If the view expressed by Desai, J., is taken to be correct, the argument that appealed to the Full Bench of the Rangoon High Court in U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 is not fully answered. In a case of an acquittal no relief would be provided to the accused against the order Passed by the trial Court if Section 520 is to be interpreted in the manner suggested by Desai, J. The only remedy open then would be to file a revision application before the High Court.
That is our main reason for holding that Section 520 confers all powers on a Court to which appeals ordinarily lie. Besides, if the interpretation, which appealed to Desai, J., is to be taken as correct, all that was necessary was to add one further clause in Section 423 of the Code of Criminal Procedure and not to place Section 520 in ChapterXLIII which deals with the disposal of the property.
9. We agree with Desai, J., that Section 520 does not create a right of appeal. It only confers a power on a Court of appeal reference, confirmation or revision and that Court may either take action suo motu or on application made to it but the Party itself has only a right of moving that Court. That application is in the nature of an independent application made to the Court of appeal, reference confirmation or revision and is not by way of appeal against the order under Section 517 of the Code of Criminal Procedure. We do not agree with the learned single Judge that no court can be designated as a Court of appeal unless it has assumed appellate jurisdiction.
The Court of appeal exists under the law and it is there whether an appeal has been preferred to it or not in a particular case. The question which is the Court of appeal within the meaning of Section 520, Code of Criminal Procedure has already been sufficiently answered in many of the cases to which reference would be made by us later and it is now well settled that the words refer to a Court to which appeals ordinarily lie against the judgments of the trial Court. The distinction between a Court of appeal and an appellate Court is not very marked. But it appears to us that the Court of appeal is a Court to which appeals ordinarily lie and an appellate Court is the Court which is seized of an appeal in a particular case.
10. It is, however, unnecessary to point out that Section 520 of the Code of Criminal Procedure refers only to orders as regards the disposal of the property which may be Passed under Section 517 of the Code of Criminal Procedure, i. e., in respect of the property which is Produced before the trial Court or is in the trial Court's custody or regarding which an offence appears to have been committed or which has been used for the commission of the offence. Other incidental or consequential orders are not covered by Section 517 nor can Section 520 of the Code of Criminal procedure refer to them.
11. Desai, J., also referred to a Division Bench case of Mst. Nabban Tawaif v. Shyam Lal, Cri. Revn. No. 695 of 1932 (All). This case is also referred to in the decision in the case of Ram Dihal v. Badri : AIR1941All143 . Hamilton, J., referred to this in the following words:-
'Since that decision in Debi Ram v. Emperor, ILR 46 All 623 : (AIR 1924 All 675 (2)) which was a single Judge decision, the same questions came up before a learned single Judge of this Court in Criminal Revn. No. 695 of 1932 (All) and as he was doubtful as to the correctness of that earlier decision, reviewing the authorities, he directed that the case be laid before a Bench of two Judges. This was done and it was held that an appeal lies. The learned Judges who composed that Bench held that on a plain reading of Section 520, Criminal P. C., it would appear that any Court of appeal, confirmation, reference or revision may direct any order under Section 517 passed by a Court subordinate thereto to be stayed and that Court of appeal may modify, alter or annul such order. The case before the Bench was one where an Assistant Sessions Judge had passed an order of acquittal and under Section 517, Criminal P. C., had passed an order for disposalof property regarding which an offence had been committed. The learned Judges of the Bench went on to say that an Assistant Sessions Judge was subordinate to the Session's Judge and appeals from the decisions of an Assistant Sessions Judge ordinarily lay to the Sessions Judge.'
12. Desai, J., himself referred to the case ot Nabban Tawaif, Cri. Revn. No. 695 o 1932 (All) (Supra) and stated:-
'The point decided in the cases of Ram Dihal : AIR1941All143 and Mt. Nabban Tawaif, Cri. Revn. No. 695 of 1932 (All) (supra) was that 'any Court of appeal' means any Court to which an appeal would ordinarily lie and not any Court to which an appeal would lie from the Particular principal order passed in the case and not whether it means a Court that has already assumed appellate jurisdiction over the Principal order'.
It thus appears that Desai, J., was aware that a Division Bench of this Court had taken a view contrary to the view taken by him.
13-14. On a consideration of the provisions of Section 520 of the Code of Criminal Procedure the place where it occurs in the Code of Criminal Procedure and the' provisions of Section 423 (1) (d), we are of opinion that the view taken in the case of Nabban Tawaif, Cri. Revn. No. 695 of 1932 (All) (supra) is the correct view. We respectfully disagree with the view taken by Desai, J., and hold that the words 'any Court of appeal, confirmation, reference or revision' refer to a Court to which appeals, references, confirmations or revision ordinarily lie against the judgment and decision of the trial Court and not a Court to which an appeal etc. has in fact been preferred.
15. We will now refer to a few of the cases to which our attention has been drawn in order to indicate that the view taken by us finds general support. In fact this fact was also recognised by our learned brother Desai.
16. The first case of the Allahabad High Court is Empress of India v. Nilambar Babu, ILR 2 All 276. It is a single Judge decision and it was then stated that where there was a Court of appeal, resort should be had to it before application is made to the High Court for the exercise of its powers of revision. After referring to the Provisions of Section 418 of the then Code of Criminal Procedure Spankie, J., held:-
'But there was a Court of appeal to which he should have first resorted, viz., that of the Sessions Judge, who might have interfered in the matter.'
It may be noticed that the accused had been acquitted and thus there would be no appeal to the Sessions Judge as the appeal against acquittal would lie to the High Court. The decision in Emperor v. Azmat Shah Khan, ILR 35 All 374 is not of much help inasmuch as the Court was seized of a revision against an order of conviction and while maintaining the conviction it reduced the sentence. This decision, therefore, does not help in deciding whether the powers under Section 520, Code of Criminal Procedure can be exercised also by a Court not actually seized of an appeal or revision.
The decision in ILR 48 All 623 : (AIR 1924 All 675 (2)) was based on the decision in re, Khima Rukhad, ILR 42 Bom 664 : (AIR 1918 Bom 186).In this case it was, held that the District Magistrate had no jurisdiction to pass an order as an Order under Section 517 of the Code of Criminal Procedure can be set aside by a Court of appeal, reference confirmation or revision. It was held that the District Magistrate was not a Court of appeal because no appeal lay against the order of acquittal. It is not necessary for us to Point Out that the view taken in ILR 42 Bom 664 : (AIR 1918 Bom 186) (supra) was specifically overruled in Walchand Jasraj v. Hari Anant, ILR 56 Bom 369 : (AIR 1932 Bom 534) (FB).
17. Reference has also been made to the case of Mst. Nabban Tawaif, Cri. Revn. No. 695 of 1932 (All) (supra) which overruled the view taken in ILR 46 All 623 : (AIR 1924 All 675 (2)) (supra). We have also referred to the case of : AIR1941All143 and to the Division Bench, case of Mst. Nabban Tawaif, Cri. Revn. No. 695 of 1932 (All) in the remarks above.' In fact that is the only Division Bench case of this Court to which we have been referred; there are three other rulings of this Court to which we have been referred but we do not think that any of them is of any help in the decision of the question before us. In Bishambhar Rai v. State : AIR1953All199 it was held that the Court had no power to pass an order under Section 517 of the Code of Criminal Procedure in respect of the Property which was not in the custody of the Court or in the possession of any party.
In the case of Abdul Rahim v. State : AIR1956All319 , the question which received the attention of the learned single Judge wag whether the Court was determining the question as regards possession or title and it was held that where the Courts below directed themselves to a determination of the question of ownership of the notes, the approach of the Courts below was not proper. The case of Ram Prasad v. State 0044/1958 : AIR1958All159 was a case under Section 522 of the Code of Criminal Procedure.
18. We have already referred to the decision of Desai, J., in : AIR1959All96 (supra) and have expressed an opinion contrary to the view taken by our learned brother Desai.
19. The only Avadh case to which we have been referred is Dost Mohammad v. Emperor, AIR 1944 Oudh 310. Ghulam Hasan, J., (as he then was) held that an order by a Magistrate under Section 517, Code of Criminal Procedure could be set aside under Section 520 only by a Court of appeal, confirmation, reference or revision. He held that the Court of reference or revision was the High Court. Inferentially the view taken was not the view that has appealed to us as it was held that the Sessions Judge could not have Passed any final orders which could be passed only by the High Court. This decision was, however, taken relying on the decision of ILR 46 All 623: (AIR 1924 All 675 (2)) (supra) which, as we have already pointed out, was specifically overruled by the Division Bench.
20. The earliest Madras case is that of Queen Empress v. Ahmed, ILR 9 Mad 448. It was then held relying on ILR 2 All 278 (supra) that an order passed under Section 517, Code of Criminal Procedure may be revised by a Court of appeal although no appeal had been preferred in the case in which such order was passed The case of Somu Pillai, v. Krishna Pillai, AIR 1924 Mad 899 is not of much help as it was held that the Sessions Judge could not interfere inasmuch as the appeal lay to the Sub Divisional Magistrate.
In K. Srinivasamoorthi v. Narasimhalu Naidu : AIR1927Mad797 again a single Judge case, it was held that the phrase ''Court of appeal confirmation, reference, or revision' designates only the Courts which can modify, after or annul an order passed under Section 517 of the Code of Criminal Procedure and does not specify the nature of the application which has to be made to them. The question thus raised was not of material help in deciding the question before as. In re, Sakkarai Kannu Pillai, : AIR1954Mad771 it was held that no appeal lay from an order of a criminal Court unless specifically provided in the Code.
It was further stated that there is no provision in the Code of Criminal Procedure by and under which a right of appeal is provided against the order under Section 517. After referring to the provisions of Section 520, the learned Judge stated that the words in Section 520 of the Code of Criminal Procedure mean any Court to which an appeal lies from the Court which convicts and from which an appeal is provided, such a Court under Section 520 has got the power to Pass an order revising, altering or annuling the order passed under Section 517. The last Madras case is a Division Bench case in which the law was considered at some length. It is Assistant Collector of Customs Central Excise, Kandamangalam v. Krishna Pillai, AIR 1956 Mad 42. It was stated :-
The powers of a High Court or any other Court as a Court of appeals, or revision in respect of any order of disposal of property passed by a subordinate Court under Section 517 do not therefore depend for their exercise on the availability or pendency of any appeal or revision in the substantive case or on the appealability or a right of revision against the order complained of; but it is an independent and substantive jurisdiction by which it will be open not only to modify, cancel or alter the order but make such other order for the proper disposal of the property as the justice of the case may require'.
We respectfully agree. It will thus be seen that our view finds support in the view taken by the Madras High Court.
21-22. In the case of ILR 3 Cal 379 (supra) it was held that the case could be disposed of by the Judge under Section 419 of the Code of Criminal Procedure and that the words 'Court of appeal' in that section are not necessarily limited to a Court before which an appeal is pending, Ainslie, J., one of the Judges constituting this Division Bench clearly stated:-
'The word's 'Court of appeal' in that section are not necessarily limited to a Court before which an appeal is at the moment pending. It may very often happen, as in this case, that the question of the propriety of an order under Section 418 for the disposal of any property produced before the Court may in no way concern the convicted person; and we think it unreasonable to put such a construction onSection 419 as shall make the power of the Judge to modify, alter or annul a Magistrate's order affecting one, contingent on the accident whether another person has or has not chosen to appeal.'
We respectfully agree and we are of opinion that the power conferred on the Court of appeal is a separate and independent power conferred on that Court to correct the mistakes of the trial Court in respect of orders passed under Section 517, Code of Criminal Procedure and has no relation to the right of the appeal which may exist Or even if available may not be exercised. It is not necessary for us to refer to the case of Sabhapati Dubey v. Ram Kissen Kumar : AIR1936Cal185 as it was a single Judge decision and reliance was placed on the decision in the case of ILR 3 Cal 379 (supra) referred to above.
23. So far as the Bombay High Court is concerned, a detailed reference to the case of ILR 42 Bom 664 : (AIR 1918 Bom 186) (supra) is not necessary as this decision was specifically overruled in the Full Bench case of AIR 1932 Bom 534 (supra). Delivering the leading judgment Beaumount, C. J., stated:-
'It seems to me that what Section 520 means is that any Court, which has powers of appeal, confirmation, reference or revision in respect of the trial Court, that being the Court subordinate thereto referred to in the section can make any substantive order it thinks fit in respect of property dealt with by the trial Court under Sections 517, 518 or 519'.
Reference was then made to the provisions of Section 423(1)(d) and Section 439 of the Code and it was held that there could be no doubt that a Court hearing an appeal or revision application would have ample Power to deal with any order passed, with regard to property the subject-matter of the charge or otherwise before it.
24. The decision in Kanshi Ram v. Emperor, AIR 1924 Lah 75 which held that the application under Section 520 was in no sense an application by way of an appeal against the order of a trying Magistrate is not contrary to the view taken by us. In Ghulam Ali v. Emperor, AIR 1945 Lah 47 Blacker, J., took a contrary view and held that the Sessions Judge could exercise powers under Section 520 of the Code of Criminal Procedure only if the substantive case came before him as a Court of appeal or a Court of revision.
Another learned single Judge of the same High Court took a contrary view in Sardara v. Buta, AIR 1950 Lah 148. Rahman, J., held that a Court to which an appeal or revision would lie can interfere with an order under Section 517 even if no substantive case has come before it either in appeal or in revision and Soni, J., agreed with the same opinion in Mahanta Singh v. Het Ram . Thus we can draw support from the two latest judgments of the Punjab High Court.
25. The view taken in Harihar Singh v. Nilkanth Singh : AIR1957Pat685 also supports our view. It was then held that the words 'Court of appeal' are not limited to a Court before which an appeal from an order of acquittal can lie but to any Court of appeal. Reliance was then placed on the Full Bench of the Bombay High Court to which, we have already referred and to the Full Bench, of the Rangoon High Court to which we will refer presently. In AIR 1929 Rang 97 (supra) the questions referred to the Full Bench were:-
1. Whether, in the case of an acquittal the Sessions Judge has power under Section 520 to interfere with the order under Section 517? And
2. Whether in the' case of a conviction by a first class Magistrate the District Magistrate has, in the absence of an appeal, the power to interfere with such an order? The Full Bench held:- 'We see nothing in the terms of Section 520 of the Code justifying the view that the words 'Court of appeal' in that section mean only a Court to which either of the parties to the criminal case has appealed or could appeal. Without the section, when a party to a criminal case has appealed, the Court of appeal would have ample power to pass the necessary orders under Section 423 of the Code.'
26. A contrary view was taken by Bose, J., (as he then was) in Ibrahim Rahmatullah v. Emperor, AIR 1947 Nag 33, He held that there would be no appeal against an order under Section 517 of the Code of Criminal Procedure, All that can happen is that the Court of appeal, that is to say, the Court hearing the appeal against the acquittal or the conviction in the original trial, is empowered to deal with the property in respect of which the offence appears to have been committed in the same way as the trial Court. But a contrary view has been taken by a learned Single Judge of the Madhya Pradesh High Court in Har Bhagwandas v. Diwan Chand : AIR1960MP195 . The view taken by Bose, J., was distinguished. Reliance was placed on the case of Nandu v. Dhasada, 1957 MPLJ 67. The learned Judge summarised the view of the Division Bench as follows:-
'On the whole, we think that the concurrence of opinion on this point is that Section 520 of the Code of Criminal Procedure does not confer a right of appeal but is only an enabling, section creating a supervisory power in Courts of appeal, confirmation, reference or revision. These Courts can pass the order in the main case, or if no appeal has been filed against the main case, can be moved to pass such order as they think fit in respect of the property involved in the criminal Case .....It is not necessary that the Court of appeal must every time be the Court of appeal to which an appeal against the main decision can be taken.'
27. On a consideration of the views of the various High Courts also, we find that the view taken by us finds general support. We, therefore, disagree with the view taken by our learned brother Desai, and hold that Section 520 of the Code of Criminal Procedure' empowers every Court of appeal, confirmation, reference or revision to which such proceedings ordinarily lie to pass orders. The Court can exercise the powers under Section 520 and amend, alter or annul the orders passed under Section 517 of the Code of Criminal procedure and pass such orders as may be just. Accordingly, we are of opinion that the present application is en-tertainable by this Court.
28. It is true that no period of limitation has been provided for such an application. The jurisdiction of the Court may be exercised at any time I while the property is in the custody of the Court. This question came up for consideration before Moti Sagar, J., in AIR 1924 Lah 75 (supra). We agree with the learned Judge that no period of limitation is prescribed and that the order can be made withina reasonable time. In that particular case theMagistrate's order had been passed in June 1920.
In appeal the accused was acquitted in June, 1921. The application to the Sessions Judge was made in January, 1922, and it was rejected, by him as barred by limitation. However, in revision theHigh Court interfered and directed that the case be returned to the Sessions Judge who should decide the case in accordance with law. In the Present case no explanation has been furnished before us as regards the delay in making the application to this Court. As stated earlier, both Ram Abhilakh and Ram Pratap had been acquitted by the learned Temporary Sessions Judge on 3rd of November, 1955.
The application to the successor of the learned Temporary Sessions Judge did not lie. The application should have been moved straightway. No explanation has been given why no application was moved between the 3rd of November, 1955, and the 4th of February, 1960. However, as it appears that no civil suit has been filed by either Jagpal or the present applicants and that the property as still in the custody of the Court, orders may properly be passed by this Court.
29. On merits there can be no doubt that the applicants were acquitted and that the Property alleged to have been recovered from them which they claim to be theirs, should, therefore, be handed over to them. We notice (paragraph 9 of the application) that the applicants before us did not claim Kurta Ext. II and Sadri Ext. III.
30. These clothes, therefore, cannot be returned to them.
31. We accordingly order that the eight articles mentioned in paragraph 5 of the application bereturned to the applicants. They were admitted tohave been recovered from their custody.