1. This revision is directed against an order of the learned Additional Sessions Judge, Bhilwara dated August 6, 1984, by which the order of the Munsif & Judicial Magistrate, Mandalgarh dated January 29, 1983 passed under Section 457 of the Code of Criminal Procedure was set-aside and the property (a camel and a cart) was delivered to the complainant Ram Narain.
2. Briefly recounted, the relevant facts giving rise to this revision petition are that the complainant Ram Narain lodged a written report at Police Station, Kotri on December 4, 1983 stating there in that accused Nandlal had taken a cart and a camel from him on rent of Rs. 200/- per month. The accused kept the cart and camel with him for some time. Thereafter he returned the cart and the camel to the complainant and paid sum of Rs. 650/- as rent to him somewhere before November 4, 1982. Since then the cart and the camel were in his (complainant's) possession. However, in the evening of December 4, 1982, when the complainant was away from his village, the accused took away his camel and the cart. The accused has, thus, committed the offence of theft. The police registered a case under Section 379, IPC and proceeded with investigation. The camel and the cart were recovered from the possession of the accused. While the investigation was going on, the complainant moved an application purporting to be under Section 451, Cr. PC and prayed that the camel and the cart be temporarily entrusted to him. The prayer was allowed. The camel and the cart were entrusted to the complainant on "Supurdginama." On the completion of investigation, the police arrived at the conclusion that the information lodged by the complainant Ram Narain was wholly false and unfounded. The real facts, according to the police, ware that Ram Narain had sold the camel and the cart to the accused Nandlal for a sum of Rs. 3500. The accused had made a payment of Rs. 650/- to the complainant. The balance of the price, however, remained unpaid. The complainant concealing the fact of this sale, lodged a false report of theft against the accused. The dispute between the parties was, thus, essentially of civil nature and no case of theft was made out against the accused. The police, therefore, filed a negative final report against the accused stating therein that no offence was made out. The Investigating Officer decided to lodge a complaint under Section 182, IPC against the complainant. When the negative final report was filed in the Court of Muusif & Judicial Magistrate, Mandalgarh, the accused submitted an application under Section 457, Cr. PC with the prayer that the cart and the camel seized from his possession and which were temporarily entrusted to the complainant, be returned to him (accused). This application was resisted by the complainant. The complainant also moved a protest petition before the learned Magistrate and requested that cognizance of the offence under Section 379, IPC be taken against the accused. The learned Magistrate heard the parties and declined the complainant's request to take cognizance of the offence Under Section 379, IPC against the accused and dismissed his protest petition. The learned Magistrate further allowed the application of the accused and passed an order that the cart and the camel be delivered to him. The complainant, being aggrieved by the said orders of the Magistrate, went in revision. The revision petitions were heard and disposed of by the learned Additional Sessions Judge, Bhilwara. He dismissed the revision against the order of the learned Magistrate by which he refused to take cognizance of the offence. The revision against the order of returning the camel and the cart to the accused was, however, allowed. The order of the Magistrate dated January 29, 1983 was consequently set-aside and directions were issued that the cart and the camel be delivered to the complainant Ram Narain. Dis-satisfied with this order of the learned Additional Sessions Judge, the accused has come-up in revision.
3. It may be mentioned that the complainant has not challenged the order of the learned Additional Sessions Judge by which he dismissed his revision petition relating to the refusal of taking cognizance of the offence against the accused.
4. I have heard the learned counsel for the parties and the learned Public Prosecutor. I have also gone through the case file carefully.
5. In assailing the impugned order, the learned counsel appearing for accused Nandlal strenuously contended that the order is erroneous and unsustainable in law. It was argued that when no offence was made out against the accused and it was held that the dispute between the complainant and the accused was essentially of civil nature and the possession of the accused over the cart and the camel was not unlawful, the proper order should have been to deliver the cart and the camel to the accused as he was entitled to retain their possession. The learned Additional Sessions Judge was not correct when he took into consideration the matter of non-payment of the remaining balance of the price of the cart and the camel, while passing the impugned order. It was, on the other hand, contended on behalf of the complainant that Section 457, Cr. PC on which reliance was placed by the learned Magistrate, has no applicability. It was argued that the provisions of Section 457, Cr. PC do not ' apply where a negative final report has been filed by the police. Inter alia, it was argued that even if Section 457, Cr. PC is pressed into service, the property should be entrusted to a person who is entitled to its possession. Since he (complainant) was the owner of the camel and cart, he was the person entitled to their possession. As such the order of the learned Additional Sessions Judge was correct and calls for no interference. I have bestowed my thoughtful consideration to the rival contentions.
6. The first question which arises for consideration is whether the matter of disposal of the property in the instant case would be governed by Section 457 or by any other section of the Code of Criminal Procedure. Chapter XXXIV of the Code of Criminal Procedure deals with the disposal of property seized by police during investigation. Section 451 occuring in this Chapter deals with a situation when no enquiry or trial is pending in any court and the property involved there in has been produced before the Court. Section 452, Cr. PC deals with a situation arising on the conclusion of trial. Thus, Sections 451 and 452, Cr. PC deal with cases which have actually come-up before a criminal court for enquiry or trial. Section 451 enables a Magistrate to provide for the temporary custody of a property. pending the conclusion of an enquiry or trial. Section 452, Cr. PC provides for the disposal of property after when the enquiry or trial is over. These two sections obviously have no applicability in the instant case because no case ever came up before the Magistrate for enquiry or trial, and, also, because the property, viz, the camel and the cart were not produced before him in the course of any enquiry or trial for of criminal case.
7. Section 457, Cr. PC applies to a situation where the seizure of the property by any police officer is reported to the Magistration under the provisions of the Code, but the property so seized is not actually produced in the court and enquiry or trial has not commenced at all. In my view, the provisions of Section 457, Cr. PC are applicable where the property is seized by the police during the investigation but no enquiry or trial takes place. Where the Magistrate declines to take cognizance of the offence, the natural consequence is that there is no enquiry or trial before him. In such a case, like the instant one where negative final report is filed by the police and is accepted by the Magistrate, the provisions of Section 457, Cr. PC would be applicable. I am fortified in my view by a decision of this Court : Mohan Singh v. State of Rajasthan and Ors. 1966 Cr. L.J. 233. It was observed therein by a learned Single Judge:
A Magistrate is competent to pass appropriate orders for the disposal of the property under Section 523 (now Section 457 of the new Cr. PC) even in cases where there has been no inquiry or trial and consequently also where the police have submitted a final negative report stating that no offence has been made out.
8. The provisions of Section 457, Cr. PC will, therefore, govern the present case. The Magistrate acting under Section 457, Cr. PC has, thus, ample powers to pass an order for the disposal of the property.
9. While exercising the powers under Section 457, Cr. PC the Magistrate should entrust the property to the person entitled to the possession thereof. The words "entitled to the possession thereof" occurring in Section 457, Cr. PC are of vital importance.
10. The question of title over the property seized by police during investigation cannot be decided by the Magistrate acting under Section 457, Cr. PC. The Magistrate is only to see as to which of the parties, in the facts and circumstances of the case, is entitled to the possession of the property seized by police. If the property is found in possession of a person who has acquired it by dishonest means, he is not entitled to its possession though it may have been seized by the police from his possession. The possession of the party is only a circumstance to be taken into consideration. Where the possession has been acquired by deceitful means, the entrustment of the property should be to the person from whose possession the accused managed to take it away. The fact that no offence was made out against the person in whose possession the property was found cannot be made the sole ground for the delivery of property to him. To take an illustration, a person is found in possession of the stolen property and it is seized by the police during investigation. The possession of that person may not amount to an offence under Section 411, IPC because of the lack of 'mens rea' on his part. Yet he is not entitled to have the possession of that property under Section 457, Cr. PC. The property in such a situation should be delivered to the person from whose possession it was stolen.
11. Here in the instant case, the allegation of the complainant that theft of the camel and the cart belonging to him has been committed by the accused, was found false by the police. The camel and the cart were seized from the possession of the accused. According to police report, the comp-lainant had sold the camel and the cart to the accused for a sum of Rs. 3500/-. In pursuance to this sale, the accused had paid a of Rs. 650/- to the complainant. The remaining balance of the price remained unpaid. In these circumstances it cannot be maintained that the accused came in possession of the camel and the cart through any deceiful means. The guilty intention cannot be inferred simply because the accused failed to pay the remaining balance of the price. The complainant willingly transferred the possession of the camel and the cart to the accused in pursuance to the sale. The camel and the cart were seized from the possession of the accused by the police. In these circumstances, it is the accused who is entitled to the possession of the camel and the cart.
12. The learned Additional Sessions Judge was very much influenced by the fact that the accused paid only a nominal sum of Rs. 650/- as price to the complainant and the major balance of the price remained unpaid. This non-payment of the major balace of the price considered heavily with the learned Additional Sessions Judge in delivering the camel and the cart to the complainant. His approach is not correct. The real dispute between the parties relates to the non-payment of the balance of the sale price. The nonpayment of the balance of the price does not make the accused disentitle to the possession over the camel and the cart. The learned Magistrate took the correct view that since no offence was made out against the accused, the information of theft lodged by the complainant was false and mischievious and that the possession of the accused was not unlawful. The accused was the rightful person entitled to the possession of the camel and the cart. The view taken by the learned Additional Sessions Judge cannot, therefore, be maintained.
13. In the result, this revision petition filed by accused Nand Lal is allowed. The impugned order of the learned Additional Sessions Judge, Bhilwara dated August 6, 1984 is set-aside and that of the learned Munsif & Judicial Magistrate dated January 29, 1983 is restored. As a consequence, the possession of the camel and the cart will be delivered to Nandlal.