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Kashiram Vs. Bhagwandas Lallu Kurmi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 444 of 1957
Judge
Reported inAIR1959MP75; 1959CriLJ201
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439, 520 and 561A; Indian Penal Code (IPC) - Sections 417, 454 and 517
AppellantKashiram
RespondentBhagwandas Lallu Kurmi and anr.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateG.M. Kekre, Adv. for Non-applicant No. 1
DispositionRevision partly allowed
Cases ReferredCivil Court. In Mahammad Yusuf v. Krishna Mohan
Excerpt:
.....of the prosecution hinged on the question :whether the property recovered from the house of the accused non-applicant no, 1 was his own, or was that of the complainant? nosibolla, 1951 scr 284: (air 1951 sc 196), in which their lordships observed that the revisional jurisdiction raider section 439, criminal procedure code, is not to be lightly exercised by the high, court, when it is invoked by a private complainant against an order of acquittal against which the government has a right of appeal under section 417. it could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. 1 should be convicted of an offence under section 454. it will be..........here). the police, during the course of investigation, on suspicion, had searched the house of the accused-non-applicant no. 1 and found some ornaments, i.e., four gold mohurs in a kantha and one gold tabiz along with currency notes of rs. 390.this property was seized and the complainant claimed it to be his own which was stolen. there was no other evidence in the case, and the success of the prosecution hinged on the question : whether the property recovered from the house of the accused non-applicant no, 1 was his own, or was that of the complainant? the complainant produced several witnesses, including a goldsmith, parmalal (p. w. 7), to prove that the property seized belonged to him and that it was stolen from his house on the material date. the accused-non-applicant no. 1 claimed.....
Judgment:
ORDER

B.K. Chaturvedi, J.

1. This is a revision against an order af acquittal passed by the Magistrate Second Class, Jabalpur in Criminal Case No. 330 of 1957.

2. The non-applicant No. 1 Bhagwandas was charged under Section 454, Indian Penal Code, for committing theft on 4-4-1956 in the house of one Kashiram Kurmi of Barela (applicant here). The police, during the course of investigation, on suspicion, had searched the house of the accused-non-applicant No. 1 and found some ornaments, i.e., four gold mohurs in a kantha and one gold tabiz along with currency notes of Rs. 390.

This property was seized and the complainant claimed it to be his own which was stolen. There was no other evidence in the case, and the success of the prosecution hinged on the question : whether the property recovered from the house of the accused non-applicant No, 1 was his own, or was that of the complainant? The complainant produced several witnesses, including a goldsmith, Parmalal (P. W. 7), to prove that the property seized belonged to him and that it was stolen from his house on the material date. The accused-non-applicant No. 1 claimed the property to be his own.

The learned Magistrate in his judgment dealing with the evidence arrived at the conclusion that the complainant could not prove the property to be his own. As there was no other evidence in the case, he acquitted the non-applicant No. 1 of an offence under Section 454. He, then, ordered that the property seized from the accused-non-applicant No. 1 should be returned to him, after the period of appeal was over. The State did not file an appeal against the order of acquittal under Section 417, Criminal Procedure Code. So, the complainant comes in revision before this Court.

3. There are two Supreme Court rulings on the point. The first is reported in D. Stephens v. Nosibolla, 1951 SCR 284: (AIR 1951 SC 196), in which their Lordships observed that the revisional jurisdiction raider Section 439, Criminal Procedure Code, is not to be lightly exercised by the High, Court, when it is invoked by a private complainant against an order of acquittal against which the Government has a right of appeal under Section 417.

It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. Their Lordships added that this jurisdiction should not ordinarily be invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record.

In another case reported in Logendranath Jha v. Shri Polai Lal Biswas, 1951 SCR 676: (AIR 1951 SC 316), it was laid down that though sub-sertion (1) of Section 439, Criminal Procedure Code, authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by Section 423, Sub-section (4) of Section 439 specifically excludes the power to 'convert a finding of acquittal into one of conviction'.

This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court can, in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts on which the acquittal is based, provided only it stops short of finding the accused guilty and passing senteuce on him.

4. In view of these clear directions of the highest authority, I do not think I can disturb the finding of the Court below and convert the order of acquittal into an order of conviction. On this point, therefore, the revision will be dismissed.

5. Shri R.S. Dabir, learned counsel for the petitioner, however, contends that this Court has power to set aside the finding so far as an order under Section 517 is concerned. That will, in my opinion, under the special circumstances of this case, virtually amount to laving down that the learned Magistrate's finding of fact was wrong, or, in other words, that the property said to be stolen belonged to the complainant and was, in fact, stolen by the accused-non-applicant No. 1 from his house.

In other words, it will mean that the Court below was wrong in acquitting the non-applicant No. 1 and that the non-applicant No. 1 should be convicted of an offence under Section 454. It will be doing indirectly which the law clearly prohibits.

6. The Supreme Court has laid down in Pushkar Singh v. State of Madhya Bharat, AIR 1953 SC 508, that unless it is found that an offence was committed in respect of a certain property, there is no jurisdiction in the High Court to order that the property be given to the complainant. If the complainant claims the property to be his own, the best thing for him would be to go to a Civil Court. If property is delivered to one of the parties under Section 517, the only effect of such order is that it determines which of the parties should be left to sue in the Civil Court.

In Ibrahim v. King Emporor, ILR (1946) Nag 940 : (AIR 1947 Nag 33), it was pointed out by Bose J., (as he then was) that orders under Sections 517 and 520 do not settle any right, nor do they confer any title. These are merely empowering Sections which empower the Criminal Courts to dispose of the property which has been seized in the course of an enquiry or trial and all that in necessary is that the Court should be satisfied that an offence appears to have been committed with respect to that property.

7. It is contended that once the property is given to the non-applicant No. 1. uunder orders of the Magistrate, then the ornament? will be melted and nothing will remain to identify the property and the very object of filing a civil suit will be frustrated. I think there is force in this contention. I also think that there is a genuine dispute regarding the property in this case.

Therefore, the best course to safeguard the interests of both the parties is to direct the lower Court to retain the property and to order the aggrieved party to bring a stay order from a Civil Court. In Mahammad Yusuf v. Krishna Mohan, AIR 1938 Cal 17, however, it had been held by Biswas J., that in no circumstances, whether the case be one under Section 517 or Section 523. can an order be made for detention in Court custody, conditional on a civil suit being instituted, for this might mean detention for an indefinite period, if no such suit was brought.

This view may be correct so far as the detention for an indefinite period is concerned; but, in my opinion, there can be no objection to fixing a period by the Court within which the aggrieved party is to file a civil suit and bring a stay order, At least, this Court has inherent power to act ex debito justitiae under Section 5GI-A of the Code of Criminal Procedure to do real and substantial justice; and I think such an order is necessary in this case.

8. I, therefore, direct the Court below to detain the property (kantha of 4 gold mohurs and the gold tabiz) for 45 days from the receipt of this order. I give this time to the complainant to file a suit in the Civil Court, if he is disposed so to do, and to get a stay order. In case no such stay order is produced within the time prescribed, the Magistrate will give the property to the non-applicant No. 1. This revision is allowed only to this extent. Money seized will, of course, be paid forthwith to the non-applicant No. 1.

9. I may make it clear that I am not deciding in this revision petition whether the property really belongs to the complainant or to the accused-non-applicant No. 1. This is a matter for the Civil Court to decide. But it is only in the interests ofjustice that I am directing the lower Court to passthe order, as indicated above. This will dispose ofthis revision.


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