T.V.R. Tatachari, J.
1. This Criminal Revision Application came up before me in November, 1967. After hearing the learned Counsel for btoh the parties, I referred the case to a Full Bench on two points by my order, dated 29-11.1967. The Full Bench, by a judgment, dated 1.4-1968, decided the first point on the basis of a concession made by the learned Counsel for the petitioner, and sent back the case for decision by a Single Judge on the second point. The facts which gave rise to this revision application were set out by me in detail in my order of reference to the Full Bench, and I, thereforee, need nto state them again in detail. I shall, however, set out a few facts which are relevant for a decision on the second point.
2. Chet Bam, the respondent herein, made a report to the police that he owned two mules, that he sent his servant Gaur Singh with the mules to a certain place for bringing certain goods for his shop, that the servant did nto return in the evening, that on an enquiry he learnt that his servant had taken the mules towards Rohru, that when he went to Rohru he was today some persons of that place that they saw his mules at a place called Bagi, that he thereupon went to Bagi and saw his mules in the shop of one, Sher Singh (the petitioner herein), who was a shopkeeper at Bagi, that Sher Singh told him that he bad purchased the mules from Sis Bam (the brtoher of Chet Ram) and Gaur Singh for Rs. 2, 600, and that Sher Singh refused to return the mules to him.
3. On the said report, the police registered a case, and after investigation, challaned only Sis Ram under Section 420 of the Penal Code.
4. The case was tried by the Magistrate, First Class, Rohru, and the learned Magistrate, by his order, dated 18-10.1963, held that there seemed to be a dispute between the two brtohers as to the ownership of the said mules, and the same was of a civil nature, that there was no evidence to show that the complainant, Chet Bam, was cheated by the accused, Sis Bam, that since the ownership of the mules was in dispute, the complainant, Chet Ram, might pursue his remedy, if any, in a civil Court, and that no prima facie case under Section 420 of the Penal Code was made out against the accused, Sis Ram. Accordingly, the learned Magistrate discharged the accused, Sis Bam. The learned Magistrate, observing that Sher Singh appeared to be a bona fide purchaser, directed that the mules in question should be returned to Sher Singh.
5. Chet Ram did nto file any appeal or revision against the said order, which, there, fore, became final, He, however, subsequently filed an application under Section 528 read with Section 520 of the Criminal P.C. in the Court of the Sessions Judge, Mahasu Sessions Division, against Sis Ram, Gaur Singh and Sher Singh alleging, inter alia, that the police took the mules into custody from Sher Singh, that during the pendency of the criminal case the police had given the custody of the two mules to him as superdar till the final decision in a competent Court, that more than two years had elapsed and he was still keeping the said mules in his Superdari that he had spent Rs. 3.600/-on fodder, etc. for the mules, that he had nto come to know as to what had happened to the criminal case as he had nto been supplied with the order of the Criminal Court that on 15.5-1965, Sher Singh came to him and demanded the custody of the mules saying that the criminal case was already decided on 18-10-1963, that, thereforee, he filed the said application, out of which this revision application has arisen, praying that a proper order regirding the custody of the mules may be passed, and that since he was the owner of the mules, they may be ordered to be delivered to him, and the amount which was spent by him for fodder for the mules may also be ordered to be paid to him,
6. The said application was heard by the learned Sessions Judge, Mahasu Sessions Division, and by his order, dated 4-1-1937, he held--
(a) that the application was maintainable. in his Court even though no appeal was filed against the order of the Magistrate:
(b) that the said application was filed within a reasonable time from the date of the know, ledge of the petitioner, Chet Ram, about the decision of the Magistrate, and there was, thereforee, no delay or any bar of limitation in filing the said application:
(c) that the point 'for determination by him was as to whether the mules should be given to Sher Singh, a bona file purchaser from Sis Ram, or to Chet Ram, who was their owner: and
(d) that in view of the decision reported in AIR 1957 Punjab 297, the petitioner, Chet Ram, was entitled to the custody of the mules, and nto Sher Singh, the bona fide purchaser, that Sher Singh may proceed against Sis Ram in a civil Court for the recovery of the amount paid by him, and that the petitioner being the owner of the mules, and the mules having been given in his custody, he was nto entitled to any amount spent by him on the fodder or the maintenance of the mules.
7. In the result, the learned Sessions Judge allowed the said application holding that Chet Bam was entitled to the possession of the two mules. It is against the said order that the present revision petition has been filed by Sher Singh, the alleged bona fide purchaser of the two mules from Sis Ram.
8 When the revision was heard by me on the previous occasion, Shri Sita Bam, the learned Counsel for the petitioner, Sher Singh, contended firstly the view taken by the learned Sessions Judge that the application under Section 523 read with Section 520, criminal P.C., was maintainable even though the petitioner, Chet Bam, had nto filed an appeal against the order, dated 18-10-1963, passed by the learned Magistrate First Class, Rohru. The learned Counsel argued that Section 520 contemplates only the filing of an application under that section in a Court of appeal, confirmation, reference or revision, in which an appeal, reference, revision or confirmation is pending against the order in the main case. The second contention of Shri Sita Ram was that since the accused was discharged and no offence was commit bed in respect of the mules in question, they should be returned to the petitioner, Sher Singh, from whose possession or custody, they were taken by the police. As the first contention related to a question on which there was considerable divergence of opinion between the various High Courts, and as the point raised in the second contention was one on which there was no precise guidance from any available case, I referred the two points for decision by a Fall Bench. The case came up before a Full Bench and before the Full Bench, Sri Sitaram, the learned Counsel for the petitioner, conceded on the first point that the application was competent. The Full Bench, on the basis of the said concession, held that the application filed by the complainant, Chet Ram, before the learned Sessions Judge was competent. As regards the second point that was referred to the Full Bench, the learned Judges observing that the said point should be decided by a Single Judge, sent the case back for decision on the aforesaid second point. Thus the point for determination is as to whether the learned Sessions Judge was right in holding that Chet Ram was entitled to the possession of the two mules, or whether the learned Sessions Judge should have directed the return of the two mules to Sher Singh from whose possession the two mules were taken by the police. Shri Sita Ram, the learned Counsel for the petitioner, Sher Singh, contended that since Sis Bam, accused, was acquitted, and since Sis Bam did nto claim the mules as belonging to him, the learned Sessions Judge should have followed the normal rule of directing the return of the mules to Sher Singh, the person from whose possession they were taken by the police, as ordered by the learned Magistrate, and should nto have held that the complainant, Chet Ram, was entitled to their possession.
9. The provisions regarding the disposal of property in the custody of a Criminal Court are contained in Sections 515-A to 525 of the Criminal P.C. While Section 516-A enables a Magistrate to provide for the interim custody of property pending the conclusion of the inquiry or trial before him, S 517 provides for the disposal of property after the inquiry or trial is over. We are here concerned with the provisions in Section 517(1), which runs as under--
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 toherwise) 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 said Sub-section (1) provides for four modes of disposal viz, by destruction, by confiscation, or by delivery to any person claiming to be entitled to possession thereof, or toherwise. In the present case, we are concerned with disposal by 'delivery to any person claiming to be entitled to possession thereof'. This section empowers the Magistrate to deliver the property in the custody of the Court 'to any person claiming to be entitled to possession thereof'. The Magistrate has, thereforee, to determine as to which person is claiming to be entitled to possession of the property. As pointed out by P. K. Tare J. in Lala Har Bhagwandas v. Diwan Chand : AIR1960MP195 , the scope of the powers exercisable under Sections 517 and 520 is only summary, and it is nto for the Criminal Court to determine either the ownership of or the title to the property. It has been held by various High Courts that generally in cases of acquittal, the proper order to pass is that the property, in the absence of a definite finding as to ownership, be returned to the person from whose possession it was taken by the police or brought into the Court, whether such person was the accused or the complainant or a third party. If there was a definite finding as to the ownership of the property, the person who was thus found to be the owner, would be the person entitled to the possession of the property within the meaning of Section 517(1) of the Criminal P.C., and the property should, thereforee be directed to be returned to him, whether it was he from whose possession the property was taken or nto.
10. In the present case, the accused, Sis Bam, did nto put forward any claim to the mules. While acquitting the accused, the learned Magistrate observed in his judgment that a certain receipt produced by the complainant, Chet Ram, shows that two mules were purchased by him on 10-11-1960. He also observed that Sher Singh, the petitioner, herein, appear, ed to be a bona fide purchaser. Learned Magistrate further observed that there appeared to be a dispute between the accused and the complainant who are real brtohers over the mules, and the same was of a civil nature. In that view, the learned Magistrate relying upon the decision in Shri Eantha Mal v. H. P. Admin. AIR 1968 HP 45 directed the mules to be returned to Sher Singh, as he was a bona fide purchaser and the mules were taken from his possession. The learned Sessions Judge also found that the complainant, Chet Ram, was the owner of the mules, and that Sher Singh, the petitioner herein, was a bona fide purchaser. But, relying on the decision in Boahan Lal L. Malik Ram v. State of Punjab AIR 1957 Pun 297, he held that the complainant, Chet Ram, who was the owner of the mules, was entitled to the custody of the mules, and nto Sher Singh, the bona fide purchaser, and that Sher Singh may proceed against Sis Ram in a Civil Court for the recovery of the amount paid by him.
11. Thus, in the present case, the competition was between Chet Ram, the owner, and Sher Singh, the bona fide purchaser. In the Punjab case, mentioned above, the situation was nto quite similar to the one in the present case. In that case, asset out in the head-ntoe of the report.
A had given some yarn bales to B for dyeing. B returned only a portion of the bales to A and it was found that he had sold the rest to C. On complaint to the police by A, the bales Bold by B to C were recovered from possession of C. B and C were btoh prosecuted, but C was acquitted. The property recovered by the police was handed over to A. C thereupon applied for return of the bales to him, which were recovered from his possession.' It was held that 'the property had been rightly delivered to A. from whose possession it originally came and all that C wag entitled to as a purchaser in good faith was only compensation for its value. As no money was found on the person of B, when he was arrested, Section 519 of Criminal P.C. could have no application to the case and the only remedy, if any G could have was a claim by an action in a civil court.
Thus, in that cage the accused B was convicted and the offence was committed in respect of the property. In dealing with that situation, Mehar Singh J. (as he then was) while pointing out that Section 519 of the Criminal P. G. was nto applicable to the facts and circumstances of that case because the applicant C was nto convicted, but was in fact acquitted, observed as follows: --
A Criminal Court is empowered to deliver property, regarding which an offence appears to have been committed, or which has been used for the commission of an offence, to any person claiming to be 'entitled to possession' of the same. This is under Sub-section (1) of Section 517 of the Code of Criminal Procedure. That Sub-sections (does nto refer to any question of title toher than question of title by such property based on possession. What the Court has to decide at the conclusion of an inquiry to trial is this; who is entitled to possession' of the property The argument on bath sides turns upon the meaning of this expression.'
The learned Judge further observed as follows:
That Section (519) provides an indication and to my mind a very clear indication, of the meaning which the legislature intended to attach to the expression 'entitled to possession' as used in Sections 517 and 514 of the Code of Criminal Procedure, which meaning is that where property is found to be stolen property and at the same time found to have been purchased by antoher person in good faith for value, the person 'entitled be possession' of the same, in such a case, is' the person who originally lost possession of the property in consequence of theft or misappropriation and the toher person, who subsequently purchased the property, is only entitled to be compensated.
That expression has the came meaning in btoh the sections. It now becomes clear that in the present case, according to the finding of the learned Judge in the revision petition, the property has rightly been delivered to Genda Ram from whose possession it originally came and all that the applicants are entitled to as purchasers of it in good faith, is to be compensated for its value.
It is clear from the above that in that case the competition was, no doubt, between A, the owner of the property, and C. the bona fide purchaser thereof. There is, however, a distinction between the present case and the Punjab case in that in the Punjab case the accused B was convicted and an offence was committed in respect of the property, and C was a purchaser, though bona fide, of a property in respect of which an offence was committed, while in the present case before me the accused was acquitted and no offence was committed in respect of the mules, and Sher Singh was a bona fide purchaser of the property in respect of which nooffence was committed. The said distinction was nto ntoiced by the learned Sessions Judge, and Shri Sita Ram, the learned Counsel for the petitioner, was right in his contention that the learned: Sessions Judge erred in following the decision in the aforesaid Punjab case.
12. As already stated above, in the present case, the learned Magistrate found that Chet Bam purchased the mules on 10.11.1960. The observation of the learned Magistrate that there appeared to be a dispute between the accused, Sis Ram, and his brtoher, Chet Bam, over the mules, has no significance, as the accused Sis Ram did nto claim the mules and went out of the picture after his acquittal. Thus, the findings of the learned Magistrate and the learned Sessions Judge were that the complainant, Chet Bam, was the owner of the mules, and that Sher Singh, the petitioner herein, from whose possession the mules were taken, was a bona fide purchaser of the said mules. No doubt, the findings of the learned Magistrate and the learned Sessions Judge are only findings given prima facie on the evidence on record, and are nto final in the sense that they are subject to the ultimate decision of the rights of the parties by a civil Court. But. for the purposes of the present criminal proceedings and the disposal of the property, the said findings have to be the basis on which the Court has to proceed.
13. To whom, then, should the possession or custody of the property be given in a case-like the present one where the acquitted accused person does nto claim the property and the competition is between the complainant who is the owner of the property, and a third party who is a bona fide purchaser of the property and from whom possession was taken by the police ?
14. Shri Sita Bam, the learned Counsel for Sher Singh, the, bona fide purchaser from whose possession the mules were taken, referred to the decision of the Supreme Court in Pushkar Singh v. State of Madhya Bharat : AIR1953SC508 . and contended that the normal rule that where the accused is acquitted and no offence has been committed in respect of the property in question, the property should be returned to the person from whose possession the property was taken, should be followed. In the said case, certain money found in the possession of the accused was alleged to have been money stolen from the complainant. But, the Magistrate found that the money belonged to the accused and nto the complainant, and acquitted the accused. Thus, in that case there was no claim by a third party, and the competition was only between the accused who was found to be the owner of the money and the complainant who was held nto to be the owner of the money. In those circumstances, the Supreme Court get aside the order of the High Court by which the money was directed to be returned to the complainant and directed the amount to be returned to the accused, pointing out that in view of the clear findings of fact given by the Magistrate to the effect that no offence was committed in respect of the amount on the basis of which finding the accused was acquitted, unless it was found that an offence was committed in respect of the amount, there was no jurisdiction to the High Court to order the payment of the amount to the complainant, and that unless by due procedure of law the acquittal of the accused was changed into a conviction, the order of the High Court for payment of the amount to the complainant could nto be sustained under the clear provisions of Section 517, Criminal P.C. The case is thus distinguishable from the present case.
15. Shri Sita Ram also relied upon the decision of the learned Judicial Commissioner of Himachal Pradesh in AIR 1968 HP 45, which has already been referred to above. In that case, certain ornaments were recovered from the possession of the accused, and they were alleged to have been stolen from the room of the complainant. Tae accused claimed that the ornaments belonged to him. The learned Magistrate rejected the prosecution case that the ornaments were stolen by the accused, and passed an order of acquittal. In the course of his statement under Section 842 of the Criminal P.C. the accused stated that he was the over of the ornaments and that the ornaments were entrusted to him by the complainant. The learned Magistrate relied upon the second part of the statement and directed the return of the ornaments to the complainant, as according to the accused himself they were entrusted to him by the complainant. The accused filed an application against the said order before the Court of Session. The learned Sessions Judge, and in a further revision, the learned Judicial Commissioner, held that the learned Magistrate was in the wrong in relying only upon the second part of the statement of the accused when he had stated in the first part of the same statement that he was the owner of the ornaments, that it was nto fair to rely upon one part of the statement and ignore the toher, that on the basis of the aforesaid statement of the accused it could nto necessarily be inferred that the ornaments belonged to the complainant, and that since the ornaments were recovered from the accused, the ordinary rule that where no offence has been committed in respect of any property, the Court should restore it to the person from whose possession it was ceased, should be followed. In that view, the ornaments were directed to be returned to the accused.
16. In that case also, there was no claim by a third party, the property was taken f com the possession of the accused, and the accused was found to be the owner of the property, and thereforee, the property was directed to be returned to the accused. The said case is thus distinguishable from the present case.
17. However as pointed out in the above decision itself, though ordinarily, where no offence has been committed in respect of any property, the Court should restore it to the person from whose possession it was seized, 'in exceptional cases, where the circum stances so warrant and the evidence so indicates that it would be inequitable to restore it to the possession of the person from whom it was seized, the Court may, in proper exercise of its judicial discretion restore it to a person who, in its opinion is the person best entitled to its possession.'
18. As already stated, in the present case, the mules were taken from the custody of a third party who was found to be a bona fide purchaser, the accused did nto claim the mules, and the competition was between the said third party bona fide purchaser and the complainant who was found to be the owner of the mules. In these circumstances, I consider that it would be would be just and proper to exercise the discretion conferred upon the Court by the provisions in Section 5l7 of the Criminal P.C., by directing the return of the mules to the complainant who has been found to be their owner, for two reasons, viz., (1) as between the owner of the property and the bona fide purchaser thereof from Sis Ram, the owner has a better claim to the possession of the property and stands on a better fotoing than the third party bona fide purchaser who purchased the mules from a person who was nto the owner of the mules and (2) the custody of the mules was given to the complainant as superdar during the pendency of the criminal proceeding and he has continued to be in possession of the mules, the order of the Magistrate was passed on 18 10-1963 acquitting the accused and directing the mules to be handed over to Sher Singh, the purchaser, and yet Sher Singh did nto apply at all for the custody of the mules for about two years, and it was the complainant, Chet Bam, who on knowing about the disposal of the case by the learned Magistrate, moved the Court by filing an application on 27-5.1965 under Sections 520 and 523 of the Criminal P.C. regarding the custody of the mules. The said inaction for a long time on the part of Sher Singh, the purchaser, is in my opinion, a strong factor against him in the exercise of the discretion of the Court under Section 517 of the Criminal P.C.
19. For the above reasons, I consider that the order of the learned Sessions Judge directing the mules to be given to the complainant, Chet Bam is correct. The Criminal Revision, thereforee, fails, and is accordingly dismissed.