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Reza Ali Wahshat Vs. Dwaraka Pershad Saraf - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1939Cal158
AppellantReza Ali Wahshat
RespondentDwaraka Pershad Saraf
Excerpt:
- .....petitioner applied to the chief presidency magistrate under section 517 of the code to have the papers returned to him. the learned magistrate was of opinion that the only order he could legally pass was that they should be returned to the party who produced them at the trial. against that order, the present application has been made. under section 517 of the code, the court has jurisdiction to make such an order as it thinks fit, for the delivery to any person claiming to be entitled to possession of it any document produced in a proceeding. any such order is subject to the revision of this court, in virtue of section 520 of the code.2. in the present case we are dealing with a particular document, to wit, a pension paper or pension papers which have no value whatsoever to any person.....
Judgment:

Bartley, J

1. This is an application under Section 520, Criminal P.C., made by the petitioner in reference to an order passed by the learned Chief Presidency Magistrate. The facts underlying the application are that the petitioner, a pensioner, made over his pension papers to the opposite party in connexion with negotiations for a loan to be made to him by the opposite party. The grant of the loan was followed by criminal proceedings against the petitioner who was alleged to have cheated his creditor in connexion with the advance of the money lent. These criminal proceedings ultimately resulted in the acquittal of the petitioner, but the pension papers which had been produced by the creditor as evidence in the criminal case appeared to have remained up to the present day in the custody of the Court. The petitioner applied to the Chief Presidency Magistrate under Section 517 of the Code to have the papers returned to him. The learned Magistrate was of opinion that the only order he could legally pass was that they should be returned to the party who produced them at the trial. Against that order, the present application has been made. Under Section 517 of the Code, the Court has jurisdiction to make such an order as it thinks fit, for the delivery to any person claiming to be entitled to possession of it any document produced in a proceeding. Any such order is subject to the revision of this Court, in virtue of Section 520 of the Code.

2. In the present case we are dealing with a particular document, to wit, a pension paper or pension papers which have no value whatsoever to any person except the person entitled under them to draw the pension. Moreover, under the provisions of the Pension Act, the money which the petitioner alone is entitled to draw in virtue of those pension papers, is protected from seizure, attachment or sequestration by process of any Court in British India, at the instance of a creditor for any demand against the pensioner. It is perfectly true that in an ordinary case of property or documents with which the Court is called upon to deal, under the provisions of Section 517, the proper order to pass generally is that such property or such document should in the absence of a definite finding as to the ownership, be returned to the person with whom it was found. In the present case, however, there is a marked exception to the general rule. Here there can be no question that the only person entitled to the possession of the papers is the pensioner himself, and further the only person to whom they have any value whatsoever is the pensioner himself. In this state of affairs, the common sense view of the matter is that the petitioner should be allowed to regain possession of his own papers. We accordingly direct in modification of the order made by the learned Chief Presidency Magistrate, that the pension papers now said to be in the custody of the Court be returned to the petitioner in this application.

Henderson, J.

3. I agree. The learned Magistrate was not correct when he thought that he had no legal power to make an order in favour of the petitioner. The terms of Section 517, Criminal P.C., are plain enough. He however rightly lays down that ordinarily in a case where the accused is acquitted, any property before the Court will be returned to the person with whom it was found or who produced it. But this is not an ordinary case. The only person to whom the pension paper is of the slightest use is the petitioner. The complainant; cannot make a legitimate use of it and can only use it as a lever to extort money out of the petitioner; I am certainly not prepared to assist him to do that.


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