I.N. Modi, J.
1. These are two revisions No. 343 of 1963 by Messrs. Dhanraj Baldeokishan through its partner Dhanraj and No. 344 of 1963 by Messrs. Radhakishan Vidyadhar through its partner Banshidhar and raise an identical question for decision, which arises in circumstances presently to be mentioned.
2. One Kanhiya who incidentally was not impleaded as respondent in these revisions was the common accused in both the cases. On a notice having been ordered to issue to him, he is represented by counsel before us. The case for the prosecution was that a theft of 108 bags of Sarson in the case of Messrs. Dhanraj Baldeokishan and 80 bags of gram in the case of Messrs. Radhakishan Vidyadhar had been committed by the accused Kanhiya some time between the 31st May to the 12th July, 1961. The police recovered a sum of Rs. 3800 in the first case and Rs. 1200 in the second case at the instance of the accused as being the sale proceeds of the stolen commodities on a statement made by him under Section 27 of the Evidence Act. The trial court convicted the accused under Section 380 I. P. C. and sentenced him to one year's rigorous imprisonment in each case. On appeal by the accused, his conviction and sentence in both the cases were set aside by the Additional Sessions Judge, Ganganagar, by his separate judgments dated the 6th June, 1963. Having acquitted the accused, the learned Judge addressed himself to the question of the disposal of the two sums of Rs. 3800 and Rs. 1200 which had been recovered by the police during the course of the investigation. He went on to observe that the accused did not claim the money to be his own at the trial and, therefore, he was not entitled to it. He further entertained the view that the complainants were not entitled to these monies either, as the case against the accused had failed. Consequently he came to the conclusion that the said monies be confiscated to the State. It is against this part of the order of the court below that the present revisions have been filed.
3. The contention which is raised on behalf of the complainants petitioners in both these cases is that the learned Judges of the lower appellate court had fallen into a grave error in ordering the confiscation to the State of the monies recovered in these cases during the course of the investigation from a place pointed out by the accused and that he should have ordered these monies to be paid to the petitioners. Strong reliance is placed in support of this submission on the fact that the accused in each case had made a confessional statement to the police while in custody that he had realised these monies by sale of the stolen commodities and that he had buried them at the place or places wherefrom they were subsequently recovered. It is further submitted in this connection that even though the entire statements so made during the investigation might not have been admissible in law against the accused to the trial, there was and can be no objection to their admissibility in evidence after the trial had concluded and the question of the disposal of the property under Section 517 Criminal Procedure Code arose for consideration.
4. My attention has been invited in this connection to a number of cases to some of which I shall presently refer.
5. In Pohlu v. Emperor, AIR 1943 Lah 312, the accused was convicted of an offence under Section 411 I. P. C. The complainant applied for the restoration of some 50 Tolas of gold into which the stolen jewellery had been converted. The Sessions Judge held that there was no evidence to show that this gold was the complainant's property and consequently he set aside the order of the trial court so far as restoration of the gold was concerned. On a revision having been taken to the Lahore High Court, it was held that the statement made by the accused at the time of the recovery that he had hidden five molten pieces of gold prepared from the stolen ornaments in an earthen pot at a certain spot could be taken into consideration notwithstanding that this was a confession to a police officer and would be ordinarily barred under Section 25 of the Evidence Act. But it was pointed out that the bar applied at the time of the trial and not afterwards, and only if it were being proved as against an accused person; and, thaT, for the purposes of Section 517 Cr. P. C., where the accused did not claim the property as his own, it could not be said that it was being used against him and would otherwise be a perfectly good piece of evidence. It was also pointed out that Section 162 Cr. P. C. only barred the use of such a statement at any inquiry or trial in respect of any offence under investigation at the lime when such statement was made, and that Section 517 did not come into play except at the conclusion of the trial of the enquiry and was, therefore, a separate proceeding from that. In this view of the matter, it was held that the confessional statement of the accused could be properly used for the purposes of Section 517 to determine (1) whether the property is property regarding which an offence appears to have been committed and (2) for determining the person to whose custody it should be delivered.
Earlier, in Queen Empress v. Tribhuvan Manekchand, ILR 9 Bom. 131, it was also held that statements made to the police by accused persons as to the ownership of the property which is the subject-matter of the proceedings against them, although inadmissible in evidence at the trial for the offence with which they are charged, are admissible as evidence with regard to the ownership of the property in an inquiry held by a Magistrate under Section 528 Cr. P. C.
6. Again in Prakash Chandra Jain v. Jagdish, AIR 1958 Madh Pra 270 which is an analogous case to the one before me. it was laid down that ordinarily when no offence has been proved to have been committed in respect of any property in its custody, the Court should restore it to the person from whose possession it was seized. But in exceptional cases, where circumstances 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 the proper exercise of its judicial discretion restore it to a person who in its opinion is the person best entitled to its possession. The view adopted in AIR 1943 Lah. 312 and ILR 9 Bom 131 (Supra) was approved in this case.
7. I respectfully agree with the view taken in the ease cited above.
8. Applying this view to the cases before me I find that the accused had doubtless made a confession in each of these two cases that he had recovered the sum of Rs. 3800 from the sale of the stolen bags in Dhanraj's case and the sum of Rs. 1200, likewise, in Radhakishan's case, and that he had buried these sums of money at a place which was specified by him and From which these were subsequently recovered. This entire statement was of course not admissible in evidence against the accused at his trial, and, as already stated, for certain reasons into which it is not necessary to go the accused was acquitted. I should, however, like to point out in particular that the learned appellate Judge who acquitted the accused had nothing to say against the veracity of the confessional statement referred to above. That being so, I am clearly of opinion that these entire statements including those parts which might not have been admissible at the trial of the accused whether under Section 25 of the Evidence Act or Section 162 of the Code of Criminal Procedure were perfectly good material for the purpose of Section 517 Cr. P. C. In other words, we have it from the accused himself that these monies had been realised by him from the sale of the stolen commodities which undoubtedly belonged to the complainants. It is true that the accused stated in his statement under Section 342 Cr. P. C. that these monies belonged to his brother. But it: is remarkable that this brother has not come forward to claim these monies for all this length of time. In these circumstances, I am disposed to take the view that the order of the learned Judge confiscating the monies and refusing their payment to the complainants, when according to the accused himself (and which version there is no reason to doubt) they were realised from the alleged stolen commodities, was unnecessarily harsh and should be set aside.
9. For the reasons mentioned above, I allow these revisions, set aside the order of thelearned Judge below confiscating the monies tothe State and hereby direct that the two sumsof Rs. 3800 and Rs. 1200 shall be restored toMessrs. Dhanraj Baldeokishan and Messrs.Radhakishan Vidyadhar respectively. To prevent all further disputes, however, I would further add a rider that the monies shall be paidto the parties named above only on their furnishing adequate security to the satisfaction ofthe trial court that they would refund thesemonies if any other claimant proves them to belong to him in a competent court of law. Ishould like to add that I have added this riderwith the consent of learned counsel for thepetitioners.