1. This is a rule against an order of acquittal. The facts which need be stated briefly are as follows: Certain property belonged to one Mohan Lai Singh who died leaving two brothers Murarilal Singh and Manilal Singh and two children who are the two accused Bejoy Krishna Das alias Singh and Subal Chandra Das alias Singh as well as certain other female children with whom we are not concerned. Upon Mohan- lal's death, proceedings were started by Murarilal Singh and Manilal Singh under part vii, Succession Act. Some proceedings were started to determine who were entitled to the property. Pending the determination of those summary proceedings the complainant, Harendra Nath Mandal was appointed curator of the property left by the deceased in accordance with the provisions of Section 195, Succession Act. The curator took possession of the- properties and made an inventory thereof. Amongst the properties was an almirah which was left in the custody of Murarilal Singh and Manilal Singh on their furnishing security, It was found that this almirah contained a secret drawer in which 'there was a sum of Rs, 3400. It is said that the two accused whose names are Bejoy Krishna Das alias Singh and Bubal Chandra Das alias Singh seized the almirah and withdrew from it the sum contained in the drawer. Upon this the curator approached the accused persons and they promised to return the same or to deposit in Court. They however did not do so and the curator instituted criminal proceedings against them charging them with having committed an offence punishable under Sections 404 and 379, Penal Code, I may mention here that the contention of Murarilal Singh and Manilal Singh is that these two accused persons were not legitimate sons of Mohanlal Singh but sons of mistress of his. That matter however has not been decided by either of the Court below. There is no doubt however that they were sons, legitimate or illegitimate, of the deceased Mohanlal Singh. The trial Court found the accused guilty of having committed an offence under Section 404, Penal Code but acquitted them of the charge under Section 379, Penal Code, that is, of the charge of theft, on the ground that possession of the almirah was not really the possession of the curator. Against this order of conviction and sentence the two accused appealed to the Sessions Judge of 24-Parganas and the appeal was disposed of by the Additional Sessions Judge, He has held that no charge could lie under Section 404, Penal Code anc1. he has acquitted the appellants of that charge and allowed the appeal. Against this order of acquittal by the Additional Sessions Judge the curator Harendra Nath Mandal moved this Court and obtained this rule
2. This Court seldom interferes in revision with orders of acquittal and where Government does not decide to appeal, the Court is always reluctant in revision to interfere but interferes only where there has been some flagrant misapplication of the law or Borne flagrant injustice. The first point for decision therefore is whether on the facts stated by the prosecution the accused could be found guilty of an offence punishable under Section 404, Penal Code. Section 404, Penal Code is in the following terms:
Whoever dishonestly mis-appropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a 'clerk or servant, the imprisonment may extend to seven years.
In order to find a person guilty under this section, the prosecution must prove not only mis-appropriation but dishonest misappropriation or-dishonest conversion to his own use of property by the accused. Secondly, the prosecution must prove that the property was in the possession of a deceased person at the time of that person's decease and that it has not since been in the possession of any person legally entitled to such possession. Both these ingredients must be established or the charge must fail.
3. The learned Additional Sessions Judge upon a review of the evidence seems to hold that there was really no dishonest intention on the part of the accused. This finding is not clearly expressed, but strongly indicated in the judgment. The learned Judge however has clearly found that the second ingredient has not been established inasmuch as the property has been in the possession of the curator since the death of Mohanlal and that the curator is a person legally entitled to such possession.
4. The learned advocate appearing on be. half of the petitioner, Harendra Nath Mandal, strongly criticises the decision of the Additional Sessions Judge on the second question. He says that the curator is not a person legally entitled to possession of the property and therefore, the property not being in possession of a person legally entitled to possession thereof, Section 404 Penal Code applies. I am leaving aside for the moment the question of dishonest intention. I shall deal first with this criticism by the learned advocate for the petitioner of the decision of the learned Additional Sessions Judge on the question whether the curator was the person legally entitled to possession of the property. The learned advocate contends that the property must eventually go to one or the other of the claimants, that therefore the curator cannot be said to be legally entitled to possession of the property, I am of opinion that this argument is fallacious. A person may not have title to property in the sense of title to the ownership of the property, but yet he may be legally entitled to possession thereof. In the present case the curator was appointed by the District Judge and under Section 196, Succession Act the curator was authorised by the District Judge to take possession of the property and he took possession thereof. A person who is authorised by a Court to take possession of property is in my opinion the person legally entitled to possession, I think that there is some confusion of thought in the argument of the learned advocate for the petitioner who seems to think, that v because the words 'entitled to possession' have been used no person without tills to the owner-ship of the property can be a person legally entitled to possession. There is no authority in support of such an argument and I am of opinion that it cannot prevail. On this ground alone the charge against the accused under Section 404, Penal Code must fail as one of the necessary ingredients of the offence described in Section 404, Penal Code is absent.
5. Next I take up for consideration the question of whether the accused acted dishonestly, The facts proved are that when the accused were questioned by the curator they promised to give back the money and deposit it in Court. They delayed in depositing the money. Now the accused persona are not strangers or outsiders. They are sons of the deceased. It has not yet bean decided whether they are legitimate or illegitimate such. Where persona charged under Section 404 are related to the deceased in such a manner and where they take the plea that they acted in good faith such a plea cannot be lightly brushed aside. The learned Additional Sessions Judge seems to have believed this plea of bona fides and I see no reason why, in revision against an acquittal, I should disturb this finding of the Additional Sessions Judge. Now, if there was a bona fide claim to the property which was not a pretence then do offence under Section 404, Penal Code, can be committed because dishonesty is an essential ingredient of the offence. It cannot be said that these accused persons dishonestly misappropriated the property.
6. I shall now deal with some of the cases relied upon by the learned advocates. The learned advocate for the petitioner relied upon the case of Babasab valad Lodsab, curator and manager of the property of deceased Dadasab Kanty v. Narasappa bin trap Banna 20 Bom. 437. The case in my opinion has no application whatsoever to the point under discussion. It decides that a curator appointed under the Succession Act is not a person claiming to be entitled to the effects of the deceased persons whose estate he is appointed to manage within the meaning of Section 4, Succession Certificate Act, and that he is not required to take out a certificate under it before he can obtain a decree. No one suggests here that the curator is a person entitled to the effects of the deceased, but the view of the learned Additional Sessions Judge is that he is entitled to possession of the property of the deceased by virtue of his office. With this view I entirely agree. The learned advocate for the accused relied upon a Madras case, namely, the case of Karri Mangaau and Anr., In re, 15 Cr. L.. J. 602 : A.I. R. (2) 1916 Mad 506). There it was held that the illustration of Section 404, Penal Code indicated that the section was intended to puniah servants and strangers who could have possibly no right to or interest in the effects of a dead man and who have mis-appropriated and was not intended to punish near relatives who took possession and dealt with the deceased's effects under the claim of independent ownership or claim to succeed as heirs of the deceased. I do not think it necessary to deal further with the cases. The law seems to be perfectly clear on the point and I am in agreement with the learned Additional Sessions Judge that the charge Under Section 404, Penal Code cannot be sustained.
7. The learned advocate for the petitioner next contends that if this charge fails the accused should be convicted under Section 379, Penal Code Now the accused were acquitted of the charge of theft by the trying Magistrate. No appeal or revision has been taken against this order of acquittal. The present application is against the order of the Additional Sessions Judge who has acquitted the accused of the charge under Section 404, Penal Code. In these proceedings the order of acquittal passed with respect to the charge of theft cannot be disturbed in any way.
8. The result is that this Rule is discharged.