C.B. Capoor, J.C.
1. This application in revision by Shri Kantha Mal is directed against an order of the learned Sessions Judge Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division whereby the order made by a learned Magistrate First Class Mahasu directing that the ornaments recovered from the possession of respondent No. 2 the accused and the box in which the aforesaid pieces of ornaments were contained be returned to the petitioner was vacated and the aforesaid articles were ordered to be returned to respondent No. 2.
2. The petitioner and respondent No. 2 are uncle andnephew and lived in the same house in village Suni. Thepetitioner and his wife Smt. Reshmu lived in the upperstorey and respondent No. 2 on the ground floor. Thepetitioner filed a complaint against respondent No. 2 foroffences under Sections 454 and 380 of I. P. C. and brieflystated the petitioner's case was that a vessel containing 80tolas of gold and 90 tolas of silver in the form of ornaments and 1500 silver rupee coins and a wooden Boxcontaining currency notes of the value of Rs. 8000/- werekept under ground in one of the rooms on the ground floorof the aforesaid house. That room was locked by thepetitioner. Some time in May 1959, respondent No. 2 brokeopen the lock put to the aforesaid room and committed theftof the aforesaid articles.
3. During the course of investigation two gold bangles Ex. P-1, 3 gold rings Ex. P-2, one gold Chaua Ex. P-13, a portion of a gold necklace Ex. P-4 and one box containing the aforesaid ornaments Ex. P-5 were recovered from the possession of respondent No. 2. The defence put forward on behalf of respondent No. 2 was that the aforesaid articles belonged to him, that the room on the ground floor from which theft was alleged to have been committed was in his possession and that the allegation that gold and silver articles belonging to petitioner were kept tinder ground in the aforesaid room was incorrect.
4. The learned Trial Court rejected the prosecution case that the pieces of ornaments recovered from the possession of respondent No. 2 were stolen by him and recorded an order of acquittal. It, however, directed the pieces of ornaments recovered from the possession of respondent No. 2 to be returned to the petitioner. The relevant portion of the order of the learned Magistrate runs as below :
'As regards the ornaments recovered from the possession of the accused, I direct that these may be handed over together with the box in which they are contained, to Shri Kanthu Ram being the head of the family. Shri Jagdish Chandar himself says that these were entrusted to him, his words being 'yih jaidad mere sapurd hui thi'. As such, if he is considered as squandering the property it seems desirable that the head of the family should have custody of it.'
5. Respondent No. 2 filed an application against the aforesaid order before the learned Sessions Judge and he reached the conclusion that as the aforesaid pieces of ornaments were admittedly recovered from the possession of respondent No. 2 who was acquitted of the offences with which he was charged the same were liable to be returned to him. In support of that conclusion the learned Sessions Judge relied upon a ruling of the Supreme Court reported in AIR 1953 SC 508, Pushkar Singh v. State of Madhya Bharat. It has been held in the aforesaid case that if an accused charged with having committed theft is acquitted and if the article alleged to have been stolen by him are recovered from his possession and are found to belong to him the same should be restored to him. The aforesaid ruling is sought to be distinguished on behalf of the respondent (petitioner ?) and it has been contended that respondent No. 2 had in his statement under Section 342 of Cr. P. C. admitted that the aforesaid pieces of ornaments were entrusted to him and as such the learned Sessions Judge fell in error in directing that those pieces' of ornaments be returned ts respondent No. 2. The relevant portion of the statement reads as below :
'Kiyonki men sari jaidad ka malik tha mere sapurd tamam jaidad thi aur mujhe uska intzam karneka haq tha.'
6. The statements that respondent No. 2 was the owner of the whole property and that the whole property was entrusted to him were made in the same breath. It would thus not be fair to rely upon one part of the aforesaid statement and ignore the other. The learned Magistrate, I am constrained to say, was in the wrong in relying upon one part of the statement divorced from its context. On the basis of the aforesaid statement it could not necessarily be inferred that the pieces of ornaments belonged to the joint family, and in view of the Supreme Court ruling referred to above the learned Magistrate was not justified in directing that the pieces of ornaments be handed over to the petitioner.
7. On behalf of the respondent (petitioner ?) reliance was placed upon the following authorities :
(1) Muthiah Muthirian v. Vairaperumal Muthirian, AIR 1954 Mad 214.
(2) Asstt. Collector of Customs Central Excise, Kandamangalam v. Krishna Pillai, AIR 1956 Mad 42.
(3) Soshil Chand v. Mangat, AIR 1954 Pun] 26.
(4) Roshan Lal L. Malik Ram v. State of Punjab, AIR 1957 Punj 297.
(5) Prakash Chandra Jain v. Jagdish, AIR 1958 Madh Pra 270.
8. The aforesaid cases, as will presently appear, are distinguishable. It was held in the first case that normally on acquittal or discharge the property should be returned to the person from whom it was seized but if the circumstances indicate that the culprit had not claimed the property as his specifically and when there were no grounds to hold that the property could belong to him it would be unreasonable to return it to the accused person. In the instant case the pieces of ornaments in question were recovered from the possession of the petitioner (respondent ?) and were claimed by him to be his property. In the second case what was held was that although prima facie the person from whose possession property is taken is entitled to its return the accused would not be entitled to possession of the gold confiscated from him by the Customs authorities. The gold ornaments in question had not been confiscated and the question decided in the aforesaid case does not arise. In the third case what was held was that the District Magistrate had the full power to pass the order of restoration and that ruling far from supporting the respondent's contention lends support to the petitioner's. In the fourth case the question arose as to whether the complainant or the bona fide purchaser of stolen property was entitled to being awarded possession thereof. In the instant case there is no such competition. In the last case it was held that where ordinarily no offence has been committed In respect of any property in its custody the Court should restore it to the person from whose possession it was seized, but in exceptional cases, where circumstances so warrant and the evidence so indicates that it would be inequitable to restore it to the possession of the person from whom It was seized the Court may in the proper exercise of its judicial discretion restore it to a person who in its opinion is the person best entitled to its possession. The aforesaid,if I may say so with respect, is the correct exposition of law. The question for consideration is, if in the present case there are such circumstances which justify the handing over of the pieces of ornaments to the respondent (petitioner ?J. It has already been seen that there are no such circumstances.
9. On behalf of the State it has been contended that the order made by the learned Sessions Judge was without jurisdiction inasmuch as no appeal had been filed against the order of acquittal and in support of that contention reliance has been placed upon the case of Sheo Dan v. Pir Dan, AIR 1963 Punj 167. The contention in the form in which it has been put forward in this Court does not appear to have been advanced before the learned Sessions Judge and it is not open to the State to advance it in this Court for the first time. That apart, with respect to the learned Judges who decided the aforesaid case, I find myself unable to agree with the view of law expressed by them. It has been noticed in the aforesaid decision itself that the preponderance of judicial authority was against the view which found favour with the learned Judges of the Punjab High Court. A contrary view has been taken by a Full Bench of the Rangoon High Court in U. Po Hla v. Ko Po Shein, AIR 1929 Rang 97, a Full Bench of Bombay High Cou'rt, in the case of Walchand Jasraj v. Hari Anant, AIR 1932 Bom 534 and by a Division Bench of the Allahabad High Court in the case of Ram Abhilakh v. The State, AIR 1981 All 544. Section 520 of Cr. P. C., on a correct interpretation of which the decision of the question under consideration hinges, reads as below :
'Any Court of appeal, confirmation reference or revision may direct any order under Section 517, Section 518 or Section 519 passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just.'
10. The words
'any Court of appeal, confirmation, reference or revision'
are not necessarily limited to a Court before which an appeal, confirmation, reference or revision in the main case is pending. Section 520 does not find place in the Chapter of Cr. P. C. which deals with appeal and it gives a Court of appeal etc., power to modify, alter or annul the order passed under Sections 517, 518 and 519 of Cr. P. C. Clause (d) of Sub-section (1) of Section 423 of Cr. P. C. empowers the Appellate Court to make any amendment or any consequential incidental order that may be just and proper and if the intention of the legislature had been that orders passed under Sections 517, 518 and 519 of Cr. P. C. could be interfered with only when an appeal had been preferred against the main order of conviction or acquittal, there would have been no necessity to make a separate provision for interference by a Court of appeal with such orders.
11. If the intention of the legislature had been as envisaged by the learned counsel for the State Section 520 of Cr. P. C. would have been worded differently and would have read somewhat as below :
'Any Court of appeal, confirmation, reference or revision in which an appeal, reference, revision or confirmation is pending against the order in the main case may direct .... ....... may be just.'
12. The legal position has been very succinctly laid down in the AIR 1961 All 544 (supra) and I respectfully I agree with the following observation made therein :
'A Court of appeal, confirmation, reference or revision in Section 520 refer to a Court to which appeals, references, confirmations or revisions ordinarily lie against the judgment and decision, of the Trial Court and do not refer to a Court which an appeal etc., has in fact been preferred and the Court of appeal exists under the law and it is there whether an appeal has been preferred.'
13. The contention advanced on behalf of the learned counsel for the State, is, therefore, barren of substance and is repelled.
14. In conclusion the application in revision fails and is hereby dismissed.