S.K. Kaul, J.
1. This Bench has been constituted on a reference made by a learned single Judge of this Court who doubted the correctness of the proposition of law laid down by B. M. Lall, J. in the case of Bis-hambhar Rai v. State : AIR1953All199 in respect of interpretation of the language of the explanation appended to Section 517 of the Old Code of Criminal Procedure.
2. Before entering into the question referred to this Bench we would first of all look to the facts giving rise to this reference.
3. Ram Chandra prosecuted opposite parties Nos. 2 to 11 for an offence punishable Under Section 395, I. P. C. for forcibly cutting and looting of certain crops. The police seized the crop from the threshing floor of opposite parties 2 to 11 and entrusted the same in the custody of Ram Chandra himself. Opposite Parties 2 to 11 stood trial Under Section 395 and ultimately the trial resulted in their acquittal. The trial Court, however, did not make an order about disposal of the seized crop. Thereafter opposite parties 2 to 11 moved an application either for delivery of the crops so seized and handed over to the custody of Ram Chandra or return of money equivalent to the value of the crops. Their case was that the crops belonged to them, that these were sold by them, that these were harvested by them and finally these were seized from their possession. On notice being issued to Ram Chandra he contested this claim holding himself to be owner of the crops. His further contention was that no order regarding delivery of possession or return of money equivalent to the value of the crops could be made until and unless the matter was decided by a competent civil court. The learned Additional Sessions Judge held that the crops having been seized from the possession of opposite parties 2 to .11 they had a right to get back the crop. He, however, further found that since the seized property was not in existence arid the value of the crops had not been ascertained by the police he On the evidence adduced before him found that the value of the crops came to Rs. 1720/- and having arrived on that finding he ordered Ram Chandra either to return the original crop if the same existed or to hand over equal quantity of the crop or to pay Rs. 1720A representing the value of the crops appropriated by him.
4. Aggrieved from that order Ram Chandra presented a revision to this Court. The learned single Judge had no difficulty in coming to this conclusion that although in the trial of the case Under Section 395 no orders were passed by that court yet it was open to that court, later on when moved by the accused to pass an appropriate order Under Section 517(1) of the Code of Criminal Procedure. The learned single Judge also did not find any difficulty in holding that it the crops still existed or were liable to be returned the same could be easily returned to Opposite Parties 2 to 11 from whose possession they were seized. Doubting the dicta laid down by B. M. Lall. J. in the case noted above the learned single Judge gave his own views to the effect that the language of explanation appended to Section 517 was wide enough to give ample power to the criminal court not only to trace the property and Order its restoration if existed in its original shape or form but it had also the power to lay its hand on money equivalent not necessarily the same money. Having taken that View he thought it fit to get the matter finally decided by a larger Bench and hence this Revision has come to us for decision.
5. Section 517 of the old Criminal Procedure Code (hereinafter referred as Code) runs thus :
517 (1). When an inquiry or a trial in any criminal Court is concluded, the court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) When a High Court or a court of Session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such court may direct that the order be carried into effect by the District Magistrate.
(3) When an order is made under this section such order shall not except where the property is live-stock or subject to speedy and natural decay, and save as provided by Sub-section (4) be carried out for one month, or, when an appeal is presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any court from delivering any property under the provisions of Sub-section (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the court if the order made under this section is modified or set aside on appeal.
Explanation-- In this section 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 converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
6. There is no dispute before us as was rightly found by the learned single fudge that it was open to the same court which passed an order deciding the case if moved later on to go into the question about return of the property seized about which the trial had taken place in view of language of Section 517 (1). We also have no hesitation in taking the same line that if the crops still existed in the same shape an order of delivery to opposite parties 2 to 11 could be made inasmuch as the crops having been seized from their possession and they having been acquitted of the charge in respect of that very property were entitled to the return of the same. The difficulty, in this case, however, arises that the learned Additional Sessions Judge clearly gave a finding that :
A difficulty has arisen in this case because the investigating officer who seized these properties while preparing the 'Supur-daginamas' did not assess the value of the crops which he had seized and which he had given in the possession of Ram Chandra as 'Supurdar', The parties were therefore asked by me to give evidence on the point regarding the value of the crops. This was necessitated from the facts because these crops did not exist any more and the 'Supurdar' will be ordered to either hand over the equal amount of the crops to the applicants in quantity or failing that he will be ordered to pay the price thereof which has to be assessed by this Court.
7. We have not been able to appreciate bow the ultimate order could have been passed by the learned Additional Sessions Judge where he ordered that either the opposite party, namely, Ram Chandra was to pay Rs. 1720/- to the opposite parties in case he failed to hand over the applicant either the property seized or their equivalent because this order is contradictory inasmuch as he found it as a fact that the seized property did not exist. The only order is that could be passed if he had jurisdiction to order the payment of money value of seized crops. Now the question arises whether the explanation noted above is wide enough to include the inquiry which could be made by the court Under Section 517 of the Code to find out the value of the property seized and then make an order about payment of the same. The learned Counsel for the revisionist apart from relying upon the decision of B. M. Lall, J. reported above has also relied on the following cases :
(1) Kanchan Lal v. State : AIR1968Guj223 ; (2) Bhag-wan Singh v. Ganga Singh 1963 All WR (HC) 707 ; (3) Emperor v. Nga Ke Moung 0911) 12 Cri LJ 473 (Rang) ; (4) Jhabboe v. Laxmi Narayan : AIR1970All595 .
The apposite parties relied upon the following cases in support of the proposition that the criminal Court had jurisdiction to order the payment of money equivalent to the value of the seized crop : (1) State of Kerala v. Thiravivam Panicker 1962 (1) Cri LJ 654 (Ker) ; (2) Ram Naram v. Jhakari Shukla 1972 All Cri R 2) ; (3) Gour Mohan Dalui v. Byas AIR 1923 Gal 598 : (24 Cri LJ 238.
8. Taking up the cases cited on behalf of the revisionist, we find that in the Gujarat case Kanchan Lal v. State 1963 (2) Cri LJ 262(2)(Guj (supra) Raju, J., interpreting Explanation appended to Section 517 of the Code, held at page 224 that :
In my opinion, a court acting Under Section 517 Cr. P, C. cannot pass an order for payment of money in general such as a criminal court does when it passes a sentence of fine or such as the Civil Court does when it passes a decree for payment of money. The explanation to Section 517 Cr. P. C. no doubt enlarges the meaning of the words 'stolen property' but it refers to the specific property into or for which a stolen property has been converted or exchanged or any specific ; property acquired by such conversion or exchange. It is, however, contended that the explanation is intended to cover the money value. Sub-section (1) of Section 517 refers to the disposal by destruction, confiscation or delivery to any person entitled to the possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. The subsection has, therefore, no reference or application to the money equivalent unless it be the money in specie into which the stolen property had been converted or for which it has been exchanged or unless the money had been acquired by such conversion or exchange. For these reasons I agree with the view taken by the Allahabad High Court in : AIR1953All199 Bishambhar Rai v. State and the Bombay High Court in 20 Bom LR 604 : AIR 1918 Bom 215 : 19 Cri LJ 721 Anant Virupax Peerant In re).
9. In 1963 case of Allahabad Bhagwan Singh v. Ganga Singh (supra). D. S. Mathur, J. observed at page 708 :
There is no provision in the Code of Criminal Procedure under which the Magistrate can take steps for the recovery of any amount ; from the Supardar. The recovery could be made through the Civil Court.... The Magistrate's order, directing the Supardar to deposit a certain amount towards the profits utilised by him from the attached plots of which he was appointed Supardar by the Magistrate is without jurisdiction.
10. In this old case decided by Lower Burma Chief Court Emperor v. Nga Ke Moung, (1911) 12 Cri LJ 473 (Rang) (Supra) it was observed on an interpretation of the Explanation appended to Section 517 of the Code that :
The words 'conversion' and 'exchanged' must be taken in their ordinary sense. They apply to such acts as the melting down of gold and silver ornaments and the exchanges of notes for cash. The forged pronote in this case was not converted into or exchanged for anything. It was sued upon in Civil Court and a decree having been obtained on it, the garden was attached and sold in execution of the decree. To hold that, in these circumstances the pronote was converted into or exchanged for the garden involves a straining of language which is, in my opinion, altogether inadmissible in constructing a penal enactment.
11. In the last case Jhabboo v. Laxmi Narayan, 1970 Cri LJ 1459 (All) (Supra) O. P. Trivedi, J. oberved at page 598 agreeing with the view expressed in 1963 All WR (HC) 707 that :
I agree with the view expressed in these cases that there is no provision in the Code of Criminal Procedure under which a Magistrate can take steps for recovery of any amount from the Supurdar except Section 547,Code of Criminal Procedure.... In this case, however the point to he noted is that the Magistrate at no stage empowered the Supurdar to convert the crops which was entrusted to him by putting it to sale and the Magistrate at no stage passed any order directing the Supurdar to pay any monies in lieu of the crop entrusted to him in specific shares to opposite-parties Nos. 1 and 2. That being so, the provision of Section 547, Code of Criminal Procedure could not be pressed into service by the Magistrate. If the Supur dar failed to deliver the attached crop to the person or persons to whom he was directed to deliver the same by the Magistrate then in the circumstances the question would have been what was the liability of the Supurdar in terms of money. So far as that question is concerned I think it could be properly decided only by the Civil Court and the observations made in the aforesaid rulings would apply.
12. We are in respectful agreement with the observations noted in the above-mentioned cases. To us, the Explanation appended to Section 517 of the Code means that the section would cover the following types of properties.
(1) Property regarding which an offence appears to have been committed.
(2) Tangible conversion of a property about which an offence has been committed.
(3) Something exchanged in specie in respect of property for which an offence is committed.
(4) Anything acquired by conversion of the property about which an offence is committed.
(5) Anything acquired by way of exchange in respect of the property about which an offence has been committed.
13. It is, therefore, clear that before an order is passed by a criminal court taking help of this Explanation, something tangible should have accrued in respect of the property in question if the same is not available for delivery either by way of conversion or by way of exchange, for example, the crops attached are sold and a lump sum of money is available in place of property in question or some or define property has been taken in exchange for the property about which an offence has been committed. The intention of the Legislature was not to authorise the criminal court to go into the question of money equivalent to the property in question and to enter into evidence on that account that is adduced before him by the parties because then before the criminal court there would neither be the property in question nor something which has been acquired by conversion or exchange. On the other hand, it would be vesting in the Criminal Courts powers of Civil Courts to go into the question of damages in shape of money for the property in question.
14. The Kerala ruling in the case of State of Kerala v. Thiraviyam Panicker (1962 (1) Cri LJ 654) (Ker) does not take into consideration the Explanation appended to Section 517. On the other hand, this ruling merely lays down that Section 517 empowers the criminal court to deliver the property or document to any person claiming to be entitled to its possession and that the court had, therefore, jurisdiction to decide the question of possession. There can be no dispute with this proposition. We do not think that this ruling helps the opposite parties.
16. In the Allahabad case decided by Hamid Husain, J., Bam Narain v. Jhakari Shukla 1972 All Cri R 2 (supra), no doubt, the learned Judge observed at page 4 that :
The contention of the learned Counsel that the criminal court cannot compel the Supardar to render account is not correct. The Criminal Court cannot realise the sale proceeds of the crop from the Supardar but it can certainly demand the Supardar to render accounts for the sale proceeds and if the Criminal Court finds that the Supardar who is a representative of the court and in whose custody the agricultural plots and the crop standing thereon were given, has not satisfactorily accounted for the crop and sale proceeds then the Criminal Court can certainly proceed against the Supardar for criminal breach of trust.
With respect, while we agree with the second proposition laid down by Hamid Husain, J. that the Supardar can be proceeded against for criminal breach of trust, we respectfully disagree with the first proposition propounded by him that the Supardar could be made accountable and accounts can be taken by a criminal court, In our view, this proposition of law laid down by Hamid Husain, J. is not good law and, as such, we overrule it.
17. In the Calcutta case, which is a Bench decision, Gour Mohan Dulai v. Bansiclhar Byas (1923) 24 Cri LJ 238 (Cal)), we find that this ruling is not en the question of Explanation to Section 517. In that case certain moveable property was hypothecated to the opposite party as security for loan by one Kartikeshwar Roy. Kartikeshwar Roy removed some of this property from the possession of the opposite party and he was convicted for removal of the property. After removal of the property, he parted with it to the petitioner for good consideration. According to the petitioner, who claimed to be a purchaser in good faith. The Magistrate at the conclusion of the trial directed this property to be returned to the complainant-opposite party, and against this rule, the petitioner went up to the court. The Bench observed that :
But we think on the clear facts of case the opposite party complainant is the proper person to recover possession of the property. He was in possession of the property with a lien on it for his debt. It will be restored to his possession, but that will not give him a better right to the property than he had before it was taken from him. The restoration of the property to the complainant will not deprive the petitioner of such rights as he may be able to establish to recover his purchase money against such property of Kartikeshwar Roy, if any, as may be left after the complainant's claim is satisfied.
18. As a result, we are of this view that it was not open to the learned Additional Sessions Judge to have taken evidence to determine the money value of the property in question which was no longer in existence, nor was it open to him to have, more or less ; given a decree to the opposite parties to realise certain amount from the revisionist. In fact, he should have permitted the opposite parties to file a civil suit against the revisionist for realisation of money as price of the crop in question because these questions can be only gone into by a Civil Judge.
19. As a result, we allow the revision set aside the order of the learned Additional Sessions Judge and permit the opposite parties to file a civil suit against the revisionist in respect of the crop in question. We may, however, note that it would be open to the Civil Court also to go into the question of ownership of the crop apart from finding the money value of the crop.