1. This is a reference by the learned Single Judge to this Divisional Bench on a point of law, namely, whether under Section 520 Cr. P.C., the Sessions Court can hear an appeal from an order passed by the magistrate under Section 517 Cr. P.C., disposing of the property brought before him during the trial of a criminal case. This question has to a considerable measure, been answered in the decision of the Division Bench of this Court, reported in Nandu v. Dhasada, 1957 M.P.L.J 67, clarifying the earlier judgment of the NagpUr High Court in Ibrahim v. King Emperor, AIR 1947 Nag 33. It appears that the Madhya Pradesh judgment was not placed before the learned Single Judge. Anyway, the reference having been made, it will be convenient to deal with the questions involved.
2. In a criminal case (No. 252 of 1956) before the First Class Magistrate, Kannod, started on an information by Gulabchand (opposite party No. 2) eight persons were on trial and were ultimately acquitted. The judgment itself directed that the articles that had been recovered and produced during the trial, should be returned to the very person from whose possession they had been taken. In a later order, the trial magistrate clarified it by recording that he meant the accused Shantaram, that is, the petitioner before us, ''as the person from whom these articles had been taken', and accordingly, the one to whom they should be delivered.
Thereupon, Gulabchand filed a petition before the Sessions Court under Section 520 of the Code describing it as an appeal. It was accordingly numbered as Criminal Appeal No. 66 of 1958; the learned Sessions Judge held that it was Gulabchand and not Shantaram that was entitled to the articles, and accordingly set aside the magistrate's order and passed his own order in favour of Gulabchand. From this, Shantaram has come up in revision.
3. This poses three questions, first, whether on a point of law, the Sessions Judge can entertain an appeal under Section 520 Cr. P.C., from an order of the Magistrate under Section 517 of the Code; secondly, whether, independently of the appellate powers, the Sessions Judge was competent to alter that order and pass his own further orders; and finally, whether, on the merits, the order of the Sessions Judge --call it appellate or call it supervisory -- calls for this Court's interference in revision. The earlier Nagpur decision (supra) was before the Single Bench; but it was not prepared to follow it, and has asked for a reconsideration.
4. Obviously, it is more important to decide if under Section 520 of the Code the appellate, or the superior Court can interfere with an order under Section 517, than to decide, if such a proceeding will be an appeal or a revision properly so called, or a new genus, called supervisory proceeding. The relevant wording of Section 517(1) and Section 520 of the Code is:
'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 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....'
''520. Any Court of appeal, confirmation, reference or revision may direct any order under Section 517 ......passed by a Court subordinate thereto ....and may modify, alter or annul such order and make any further orders that may be just.''
5. On the face of it, the Superior Court to which normally appeals, revisions and references lie, can act under Section 520 Cr. P.C. But the proceedings will not be appeals, revisions or references properly so called. That section gives powers of a kind that can be called supervisory. Looked at that way, the difference between the view taken in the old Nagpur ruling and the Divisional Bench ruling of 1957 is far less than it would appear at first sight. In the former, it was ruled that an order under Section 517 is not appealable, and Section 520 does not confer a right of appeal.
In strict terms, this is quite correct because an appeal properly so called, should be provided for in express words in the statute, and there is nothing in Section 520 to say that such and such Superior Court can entertain an appeal from an order under Section 517. But the effect of an appeal is substantially secured by Section 520 which enables 'a Superior Court'' described in exhaustive terms ''as one of appeal, confirmation, reference or revision', to modify, alter or annul an order under Section 517 and make any further orders that may be just. Certainly, the Sessions Court is, for the purposes of Section 520 of the Code, the Superior Court, being the one to which appeals from the Magistrate's Court would normally lie.
6. The effect of the Madhya Pradesh ruling reported in 1957 MPLJ 67 (supra) is that no appeal lies under Section 520 from an order under Section 517; that section, however, creates supervisory powers, in exercise of which the Superior Court can interfere with the order under Section 517 of the Code. The aggrieved party should choose the Superior Court with due regard to the general scheme of Courts laid down in the Code. Most often, it will happen so, but it is not essential that the ''Court of appeal' for the purpose of Section 520, should be the one which can hear an appeal from the particular judgment, apropos of which the trial Court passes the order under Section 517, Cr. P.C. It should be the one to which, under the general scheme of the gradation of criminal Courts appeals would normally lie.
For example, in the event of first class the Magistrate's judgment being one of acquittal, the appeal would lie not to the Sessions Court but to the High Court. All the same, the party aggrieved by the consequential order regarding disposal of property under Section 517 need not run upto the High Court, but may go to the Sessions Court itself, that Court is competent to alter the order; but has committed a formal mistake in describing the proceeding as an appeal and not a supervisory case. But where there are real powers, such a description is of little consequence.
7. In the result, I would hold that:
(i) Section 520 Cr. P.C., does not enable the 'Superior Court' to entertain an appeal properly so called;
(ii) However, it gives supervisory powers under which it can modify or alter an order of the subordinate Court under Section 517(1) of the Code, and pass its own order as it thinks just;
(iii) A Superior Court for the purposes of Section 520 of the Code would be one to which appeal generally lie, and not necessarily the one to which will He the appeal from that particular judgment, apropos of which the order of the trial Court is passed;
(iv) To avoid confusion, the Nagpur ruling should be deemed to have been overruled by the Madhya Pradesh ruling.
8. The present proceedings should be put up before a Single Bench for decision on merits as to whether, in the present circumstances the order of the Sessions Judge calls for modification by this Court in exercise of revisional powers.
V.R. Newaskar, J.
9. I agree.