1. Mahanta Singh, Asa Singh and Hazara Singh were sent up to take their trial under Section 458, Penal Code on the allegation that on the night between the 6/7th of March, 1951, they and others entered the house of Pakhar and that they beat him and broke open the locks of the trunks and looted property alleged to be of the value of Rs. 35,000/- in cash and clothes and valuable worth about Rs. 15,000/-They were tried by a Magistrate of the First Class, who after considering the evidence in the case, passed an order on 30-5-1952, acquitting them. While passing his order, the Magistrate made another order that Rs. 1300/- be returned to Mahanta Singh accused as also the gold ornaments taken into possession from Kesar Singh and that Rs. 900/- be returned to Asa Singh.
From this order a petition was filed on 25-6-1952, to the District Magistrate, in which it was prayed that the order of acquittal be set aside and that currency notes of the value of Rs. 1300/- recovered from Mahanta Singh and those of the value of Rs. 900/- recovered from Asa Singh and other property be restored to the petitioner, who was Het Ram son of Pokhar. The District Magistrate does not seem to have heard this case with the promptitude that it deserved, as it came up for hearing before him at a very late stage. On 14-2-1953, he passed an order, in which he said that, in his opinion, the acquittal was wrong and that the accusd should have been tried unedr Section 395 or Section 397, Penal Code, but that as they had been acquitted, Section 403, Criminal P. C., barred a fresh trial. He could not have taken steps for an appeal to be filed in this Court against the order of acquittal, as on that day, 14-2-1953, the time of six months allowed for an appeal had long expired.
The District Magistrate took the second prayer into consideration, which was for the restoration of the property. He came to the conclusion that though the confessional statement of an accused person may be inadmissible so far as his trial is concerned, it could yet be taken into consideration for purposes of Section 517, Criminal P. C., in order to determine the person to whose custody the property should be delivered. In the present case, the District Magistrate took into account the confessions of the accused and the statements of the police officers, to whom those confessional statements had been made because of which the currency notes and the gold 'kantha' had been recovered. He ordered that the currency notes of the value of Rs. 2200/- and the 'kantha' be restored to the petitioner. From this order of restoration a revision has been brought to this Court.
2. Mr. Keer's first point was that the District Magistrate had no authority under the provisions of Section 520, Criminal P. C., to upset the erder of the Magistrate. According to Mr. Keer, the District Magistrate was neither a Court of appeal, nor a Court of revision and, therefore, he could not pass an order Under Section 520, Cr. P. C. Section 520 runs as follows : (His Lordship quoted the provisions of the section and then stated). In my opinion, the District Magistrate is both a Court of appeal as well as a Court of revision. He is a Court of appeal under Section 515, Criminal P. C., from an order passed under Section 514 by any Magistrate. He is a Court of revision under the provisions of Sections 435, 436 and 437, Criminal P. C., and he has certain powers, which he can exercise himself. Under Section 435 he has the power to call for the records of any Magistrate. Under Section 436, he has the power in a case, in which he finds that a complaint has been dismissed or that an accused has been discharged, which orders are, in his opinion, wrong, to order further enquiry. Under Section 437 he can, in the case of a person, who has been improperly discharged, direct that he should be committedfor trial. As I have said before, under Section 515, Criminal P. C., he acts as a Court of appeal from the order of a Magistrate of any class, in which the question of the forfeiture of a bond is involved. In my opinion, he is thus both a Court of appeal and a Court of revision.
The matter need not be discussed at great length in view of the Full Bench judgment of the Rangoon Court in -- 'U Po Hla v. Ko Po Shein', AIR 1929 Rang 97 (FB) (A). The Full Bench, while dscussing this case, held as follows :
'All First Class Magistrates are subordinate to the District Magistrate of the District, and either the Sessions Judge or the District Magistrate can under Section 435 call for any proceedings of any inferior criminal Court in revision. The Sessions Judge and the District Magistrate are, therefore both 'Courts of revision' with regard to the proceedings of a First Class Magistrate within their territorial jurisdiction. Their jurisdiction is a concurrent one as it is in the case of revisional powers generally, and it does not seem to us that their jurisdiction in the matter is in any way dependent on the question whether an appeal has been filed or could be filed, against the original order of acquittal or conviction in the ease concerned.'
This Full Bench judgment of the Rangoon Court was followed by a Full Bench of the Bombay Court in -- 'Walchand Jesraj v. Hari-anant', AIR 1932 Bom 534 (B). In that case the head-note states:
'The applicant was the accused in certain criminal proceedings in which he was charged before a First Class Magistrate with having committed the offence of theft in respect of certain stones alleged to belong to the complainant. He was acquitted of the charge but the trying Magistrate directed the stones valued at Rs. 4/-, the subject-matter of the charge, to be handed over to the complainant under Section 517, Criminal P. C. Notwithstanding the trifling nature of the matter in dispute the applicant, relying on the authority of -- 'Khima Rukhad, In re', AIR 1918 Bom 186 (C), applied to the High Court as the 'only' Court having jurisdiction to revise the order under Section 520, Criminal P. C.
Held that 'any' Court of appeal, confirmation, reference or revision may, under Section 520, Criminal P. C., revise any order passed under Sections 517, 518, or Section 519 by a Court subordinate-to it and that irrespective of the fact whether an appeal or application for confirmation or reference or revision might be made in respect of what may be called the main charge before it.'
The learned Judges overruled -- 'AIR 1918 Bom 186 (C)', and approved -- 'AIR 1929 Rang 97 (FB) (A)' already quoted by me. In my opinion, therefore, the District Magistrate had full power to pass the order, which he did.
3. Mr. Keer's next point was that Section 25, Evidence Act, forbids the use of the confessional statements of the accused persons, by which currency notes of the value of Rs. 2200/-had been produced by them and given over to the police. Pieces of gold ornaments were recovered from a goldsmith, Kesar Singh P. W. 14, who had stated that he had been given gold by the accused Mahanta Singh. Section 25,Evidence Act runs as follows:
'No confessions made to a Police Officer shallbe proved as against a person accused of anyoffence.'
This section merely forbids the use of a confession made to a police officer in a trial of the accused person for having committed an offence. This section does not forbid the use of a statement made by a thief or a robber in a case, in which the thief or robber is not being tried for haying committed the theft or robbery or an allied offence. It certainly would be admissible in a. civil case brought against the accused for recovery of the article or for damages for trespass and the like. Proceedings under Section 517, though they occur in the Code of Criminal Procedure, are really in the nature of proceedings analogous to civil proceedings, in which the question to be determined is to whom the possession of certain articles should be given. It has been held in -- 'Junapa Shanbhog v. Meneshwar Kachi', 9 Bom 181 (D) that such a statement would be admissible in proceedings under Section 517, Criminal P. C-, and this ruling of the Bombay High Court was followed in --'Bhagat Ram v. Emperor', 96 Pun LR 1911 (E). The very opening words of Section 517 are:
'When an inquiry or a trial in any Criminal Court is concluded, the Court may make suchorder.....'
These proceedings are proceedings, in which the guilt of the accused person is not to be determined, but are proceedings, which take place after the main proceedings are over. This was also the view, which had been taken by Blacker J. in -- 'Pohlu v. Emperor', AIR 1943 Lah 312 (F).
Mr. Keer, however, said that that ruling fielped him. At page 313 Blacker J., after referring to a statement made by the accused to a Sub-Inspector, said as follows :
'No doubt this is a confession to a police officer and it is also a statement made during the course of investigation. But it would only be barred under Section 25, Evidence Act, if it were being proved as against an accused person. For the purposes of Section 517, Criminal P. C., where the accused does not claim the property, it cannot be said that this statement is being used against him and as it is other-wise a perfectly good piece of evidence, I see no reason for not admitting it and relying on it.
Similarly, Section 162, Criminal p. c., only bars the use of such a statement 'at any inquiry or trial in respect of any offence under investigation at the time when such statement is made'. Section 517 does not relate to any such inquiry or trial. In fact the opening words, which are 'when an inquiry or a trial in any criminal Court is concluded.....'show clearly that it is a separate proceeding from the substantial trial of the accused person for the offence. I can see no bar, therefore, either in Section 25, Evidence Act, or in Section 162, Criminal P. C., to this statement being used for the purpose of Section 517 to determine, firstly, whether the property is property regarding which an offence appears to have Seen committed, and, secondly, for determining the person to whose custody it should be delivered.'
Mr. Keer says that Blacker J. held that the statement of the accused person in that casewas not barred under Section 25, Evidence Act, because the learned Judge had said that where the accused does not claim the property, it cannot be said that this statement is being used against him.
In my opinion, Blacker J. was merely relating the facts of the case. It so happened that in that case the accused had not claimed the property, but the reasoning of Blacker J. would equally apply even if the accused had claimed the property. I see no difference between the case, where the accused at the trial makes a claim to the property, which, according to him, might lead to his acquittal, or, where in another case the accused does not make such a claim. Mr. Keer has not cited any ruling in which a view contrary to the views held by the Bombay Court and by the Lahore Court may have been taken. In my opinion, therefore, the District Magistrate was perfectly right in taking into consideration the statements made by the accused persons Mahanta Singh and Asa Singh, which led to the recovery of the currency notes of the value of Rs. 2200/- from them.
The statement made by the Sub-Inspector in this case was as follows :
'Mahanta Singh was then interrogated and heoffered to produce the stolen property. Hewas accordingly taken to his village where hemade a statement that he 'had kept the stolenproperty in a trunk at his house and offeredto produce the same. He led us to his housewherefrom he produced the currency notesEx. P. 1, valued Rs. 1300/- from a lockedtrunk, key of which was produced by thewife of Mahanta Singh accused.'
The same Sub-Inspector made the followingstatement with regard to Asa Singh:
'Asa Singh accused on further interrogationdisclosed on 1-5-51 that he had kept thecurrency notes in his trunk at his house andoffered to produce them from there.'
In my opinion, these two statements wererightly taken into consideration by the DistrictMagistrate in determining the question as towho was entitled to the possession of the stolenproperty. I, therefore, find no reason why Ishould interfere with the order of the DistrictMagistrate regarding the currency notes of Rs.2200/- in the application before me.
4. Mr. Keer next said that in any case that part of the order, by which the District Magis-trate ordered that the 'kantha' be restored to Het Ram, was wrong and the 'kantha' should be ordered to be restored to Mahanta Singh. So far as the 'kantha' is concerned, the evidence is as follows :
The goldsmith Kesar Singh P. W. 14 stated: 'Mahanta Singh brought gold sovereigns and other pieces of gold for making 'karas' and 'bugtians', which I made accordingly. I did not make any entry in my 'bahis' in this respect at that time. Later on I made an entry relating to these ornaments at the asking of the police.'
P. W. 17 Charan Singh, Station House Officer, stated as follows:
'After the arrest of the accused, when they had been taken to Amritsar by Mr. Bhatia, the then S. H. O. Fatehabad, I was also ordered to proceed to Amritsar and there took into possession 'inam', some 'nalian' and 50 'mankas' of gold from Kesar Singh P. W. vide memo Ex. P. R.'
From these statements it appears that Kesar Singh had been delivered some gold sovereigns and pieces of gold for making certain ornaments, which he made, but I do not know how the District Magistrate says that the 'kantha' is to be returned. According to the evidence, it was an 'inam', some 'nalian' and 50 'mankas' of gold that had been delivered by Kesar Singh to Charan Singh, the Station House Officer. It may be that these formed parts of a 'kantha' and the District Magistrate may perhaps ba referring collectively to those pieces of ornaments, but the petitioner before me in the High Court is Mahanta Singh. I do not see how Mahanta Singh can be given the possession of these pieces of gold ornaments. The property was had from Kesar Singh and possibly these pieces of gold ornaments may have to be returned to Kesar Singh, but that is a question, which will have to be decided when Kesar Singh makes an application for return of these pieces of gold ornaments. According to the statement of Kesar Singh, Mahanta Singh delivered some pieces of gold and gold sovereigns to the goldsmith and he was to make 'karas' and 'bugtians'. The pieces that were taken from Kesar Singh were not 'karas' and 'bugtians'. Therefore, so far as the petition of the present petitioner that the pieces of gold ornaments, called 'kantha' by the District Magistrate, may be returned to him, is concerned, it is without any force.
The result is that the petition fails 'in toto'and is dismissed.