P. Govinda Menon, J.
1. This revision petition is directed against the order passed by the Sub Magistrate of Nedumangad under Section 517 Cr. P. C., directing that the cost of areca nuts remaining in Court custody be given to P. W. 1 the complainant in the case. The matter was taken up before the Sessions Judge of Trivandrum who has confirmed the order.
2. The accused is the Superintendent of the River View Estate of which D. W. 1 is the managing director. P. W. 1 claims to have obtained a lease of the areca trees in the estate. His case is that his agent P. W. 2 had collected the nuts on 6-2-1961 and entrusted the same to the accused for safe custody and when asked for it the next day he failed to return the same, information was given to the police and a case was registered. The areca nuts were taken into custody from the estate car shed and produced in Court. It was sold and the sale proceeds are in court.
3. The accused denied the commission of the offence and examined the managing director as D.W. 1. D. W. 1 has proved a lease deed Ext. D-1 whereby the areca nuts in the estate were leased to one Ibrahim till 31-1-1961. He has also proved the leave register maintained in the estate to prove that the accused was on leave from 1-2-61 to 17-2-61. He also gave evidence that he had filed a complaint against P. W. 1 for theft of areca nuts from the estate. ' The learned Magistrate on a consideration of the evidence found that the prosecution had not succeeded in proving entrustment of the areca nuts and acquitted the accused. He, however, directed for the return of the value of the areca nuts to P. W. 1.
4. The question that arises for decision is whether the order directing payment of the sale proceeds of the areca nuts to P. W. 1 is legally sustainable. Section 517 Cr. P. C. empowers the criminal court to deliver the property to any person claiming to be entitled to possession. The Court has, therefore, to decide the question of possession. The ordinary rule is that when the accused is acquitted, the property should be returned to the person from whom it is seized, but this is not an invariable rule. When there are circumstances showing that the person concerned either has not claimed the property as his specifically or when there are no grounds to hold that the property could have belonged to the accused or the evidence in the case would show that the property belongs to the complainant, the Magistrate has certainly got a discretion to return the property to the complainant.
I had occasion to consider this question in the case in State of Kerala v. Thiraviyam Panicker. I960 Ker LT 1051: (1962) (1) Cri LJ 654) and I held therein that it is not imperative that in all cases of acquittal the Magistrate should return the property to the accused. It is argued by the learned counsel for the petitioner that the respondent had not succeeded in establishing the lease set up by him or the entrustment of the areca nuts to the accused and as such he is not entitled to the return of the sale proceeds. The arcea nuts were admittedly taken into custody by the police from the estate which belongs to D. W. 1. The sale proceeds of such property could not, therefore, have been given to the respondent without holding an enquiry as to who is entitledto the possession of the same. This has not been considered by the learned Magistrate and the order has to be set aside.
5. I therefore, set aside the order passed by the Magistrate and direct that notice be issued to the complainant, the accused and the estate owner D. W. 1 and after a consideration of the evidence already adduced in the case and such other evidence which may hereafter be produced by the parties pass proper orders regarding the disposal of the property. I wish to make it clear that nothing that I have stated in this order is intended to fetter the discretion of the learned Magistrate in appreciating the effect of the evidence that would be produced before him and passing necessary orders in regard to the disposal of the property.
In the result, the order under Section 517 Cr. P. C., to return the sale proceeds of the areca nuts to P. W. 1 is set aside. The matter will go back to the trial Court for fresh hearing and disposal according to law.