1. The petitioner seeks in revision to set aside the order of the 2nd Class Magistrate, Tittagudi, under Section 517, Criminal Procedure Code, confirmed by the District Magistrate,. South... Arcot, under Section 520, Criminal Procedure Code, giving possession to counter-petitioner of an omnibus taken from the petitioner by the Police- The charge of theft lodged by the counter-petitioner against the petitioner under Section 379, Indian Penal Code, was found to be unsustainable.
The case-law on this subject is as follows:
In Syed Mohideen Sahib, In re (1883) 2 Weir 667 (Cr. R.C. No. 892 of 1883) it is laid down that the property should ordinarily be delivered to the person by whom it has been produced; and if there is a bona fide dispute the Magistrate may impose conditions upon that person. This is followed in the next case, and purports to be followed in the next after that, where In re Annapurnabai I.L.R. (1877) B. 630, is cited to-the same effect.
2. In Kanagasabai v. Emperor I.L.R. (1910) M. 94 : 20 M.L.J. 425, it is ruled that the Magistrate has jurisdiction to decide the question of possession, and In re Sadashiv (1908) 11 Bom. L.R. 16. supports that rule. Srinivnvasamurthi .v. Narasimhalu Naidu I.L.R. (1927) M. 916 ; 53 M.L.J. 309. lays down that in the absence of special circumstances the property must be returned to the person from whom it was taken.
5. The general effect of these rulings is that the Magistrate has a discretion to decide the question of possession, but it is very rarely that that discretion if properly exercised will go beyond restoring the property to the party from whom it was taken. But probably the question how far a Magistrate's discretion under Section 517, Criminal Procedure Code, should extend, is better answered by reference to fundamental principle than by any attempt to piece together a coherent system from various rulings. It is manifest that Criminal Courts are not expected to try civil causes. The one exception is when, in order to prevent a breach of the peace, a Magistrate decides prima facie the question of possession. But it would be an odd extension of that exception if a section were to be drafted into the Code: whenever a Magistrate is satisfied that the police have erroneously attached property where no offence has been committed, he shall require the parties claiming possession of that property to put in their respective claims. Merely from a practical point of view, apart from principle, a provision of that sort would obviously be a direct stimulus to false charges, for parties would jump at the opportunity of settling claims of possession so expeditiously and so cheaply.
6. It may seem, therefore, that the simple rule should be that if no crime is made out the Magistrate should return the property to the party from whom it was taken. But that rule is just too simple. Suppose, to take a common example, the accused person whom the Magistrate acquits, has pleaded that the property was foisted upon him. There would then be no sense in the Magistrate telling him to keep it. Other instances can no doubt be imagined, but, except in these special cases, the Magistrate should return the property to the person from whom it was taken. The same rule is laid down in Srinivasa-murthi v. Narasimhalu Naidu I.L.R. (1927) M. 916 ; S3 M.L.J. 309. in almost identical terms on page 919. It should be returned to the person from whom it was seised unless there are special circumstances which would render such a course unjustifiable. The mere fact that two parties are quarrelling about possession is not one of the special circumstances which take a case out of the general rule.
7. In this case therefore the Magistrate should simply have returned the omnibus to the accused from whom it was taken, and the brief order of the District Magistrate that there had been a proper exercise of discretion would then be unexceptionable. But if, on the other hand, the Magistrate is to be allowed to try the civil cause, to weigh evidence, and to estimate probabilities the District Magistrate when moved under Section 520 would have to show that he had applied his mind to the same matters. Otherwise, it would not only be a civil cause decided by a Criminal Court but one decided without privilege of appeal.
8. In the light of the above observations it is unnecessary to go into the merits of this case; but it may be observed that the dispute is not one which admits of ready solution, and it is quite possible that the Sub-Magistrate has erred. He finds in his last para that the omnibus was obviously in possession of P.W. 1 on the date of the offence, overlooking that on his own finding there has been no offence at all. What he should have said is that the omnibus was obviously in possession of the accused when the police intervened. In his 5th para he points out how flimsy is the case of P.W. 1. The sale-deed is not produced, the alleged payment to Addison & Co. is not proved, and to get over his own signature in Ex. I, P.W. 1 has to fall back upon the time-worn plea that he signed a blank sheet which the accused has filled up, confessing at the same time that no one was present when he signed it. But the Magistrate says that even by D.W. l's evidence the accused had to pay Rs. 200 to P.W. 1 before the re-transfer of the omnibus. D. W. 1 does not say so. He says that he saw P.W. 1 sign Ex. I, and accused promised to pay him Rs. 200 in a short time. There is no suggestion that pending the payment P.W. 1 was to keep the omnibus.
9. The 2nd Class Magistrate's order cannot, therefore,- be supported on its merits, and furnishes a good example of the advisability of keeping these civil disputes out of Criminal Courts.
10. For the above reasons the orders of the Lower Courts are cancelled and the omnibus is ordered to be delivered to the petitioner. The petition is allowed.