1. This rule was issued by this Court on the District Magistrate of Nadia as also on the opposite party to show cause why an order passed by the learned Sessions Judge of Nadia on 8th July 1935, setting aside, on appeal, the order of a Magistrate directing an amount of money to be returned to the opposite party should not be set aside.
2. It would appear that in the trial before the Magistrate, the accused persons placed on their trial were acquitted of the charge under Section 411, I. P. C.; under Section 258, Criminal P. C., and the Magistrate directed that the money found with the accused in the course of a search was to be paid to the petitioner Banuruddin Biswas. There was an appeal to the Sessions Judge against the aforesaid order passed by the Magistrate under Section 517, Criminal P. C., relating to disposal of the money, and on appeal the order of the Magistrate was set aside. The Sessions Judge in allowing the appeal, directed that the money found with the appellants before him must be returned to them. The merits of the case in which the order of the Sessions Judge was passed are not in question before us in the rule. It was urged in support of the rule issued by this Court that there was no provision in law for appeal from the order of the Magistrate, the Sessions Judge acted illegally and without jurisdiction in reversing the order of the Magistrate passed under Section 517, Criminal P. C.
3. The decision of the question whether the Sessions Judge had jurisdiction to entertain and hear the appeal from the order for disposal of property, although there was and there could be no appeal to the Judge from an order of acquittal passed by the Magistrate, passing the order for disposal of property, depends upon the interpretation of the words 'any Court of appeal' as used in Section 520, Criminal P. C. These words are not limited to a Court to which an appeal against the conviction or acquittal is or may be pending; orders made under Section 517, Criminal P. C., were independent of the question of conviction or acquittal in a case before a Criminal Court. It was held by this Court so far back as the year 1878, in the cases of Empress v. Joggeswar Mochi (1877) 3 Cal 379, that the words 'Court of appeal' in Section 419, Criminal P. C., 1872, which has now been replaced by Section 520, of the Code of 1898, that the words 'Court of appeal' were not limited to a Court before which an appeal from a conviction was pending; it might very often happen, that the question of the propriety of an order for disposal of property produced before the Court might in no way concern the convicted person; and it was thought unreasonable to put such a construction on the provision relating to appeals from orders relating to disposal of property as could make the power of the Judge to modify, alter or annul a Magistrate's order affecting property contingent on the accident whether another person has or has not chosen to appeal. The reason for the decision referred to above, with which we are in entire agreement, was adopted by a Full Bench of the High Court at Rangoon, in U Po Hla v. Ko Po Shein 1929 Rang 97. The rule underlying the decision of this Court in Joageswar's case Empress v. Joggeswar Mochi (1877) 3 Cal 379., mentioned above, has also been recently recognised by the High Court at Bombay to be sound, in Walehand Jasraj v. Hari Anant 1932 Bom 534., in which case a Full Bench of that Court overruled a previous decision laying down that the words 'Court of appeal' implied the Court to which an appeal lay in the particular case, and not the Court to which appeals would ordinarily lie from the case deciding the particular case. The case before the High Court of Bombay was a case of acquittal by the Magistrate.
4. As indicated above, in consonance with the decision of this Court in Empress v. Joggeswar Mochi (1877) 3 Cal 379., we hold that the words 'Court of appeal' as used in Section 520, Criminal P. C., are not limited to a Court before which an appeal from an order of acquittal could lie, and the jurisdiction of the Court of appeal to deal with an order for disposal of property in the case before us, was not dependent upon the question in what Court an appeal from an order of acquittal might have been brought, which, in point of fact, had not been brought. The rule is discharged; the order of the Sessions Judge, directing return of money passed on appeal is affirmed.