S.M. Fazl Ali, J.
1. This is an application in revision against that part of the order of Sessions Judge, Jammu, by which be has directed the ornaments to be restored to Mst. Bimla Devi. The application arises in the following circumstances:
2. A criminal case of theft was instituted against Saukun and Charan Das and the two accused were ultimately convicted by a Magistrate of Ramnagar. The learned Magistrate after convicting the accused directed that the ornaments recovered should be handed over to the complainant, the petitioner in this case. The accused then appealed to the Sessions Judge against their conviction and the appeal was allowed and the accused were acquitted. The learned Judge came to a clear finding that the case was false and that the complainant had not proved that the ornaments were stolen properties and as a consequential order the learned Judge directed that the ornaments should be returned to Mst. Bimla Devi from whom they were seized.
3. In support of this petition Mr. Sharma contended that the order of restoration of the properties to Bimla Devi was passed without giving a notice to the complainant who is undoubtedly aggrieved by this order. He has further submtted that there was no application on behalf of Bimla Devi which would have enabled the Court to pass an order of the restoration of the property to her.
4. A perusal of Section 520 as also Section 4fi3 (1) (d) of the Code of Criminal Procedure clearly shows that a notice to the complainant in these matters is not essential. In fact the order of restoration of property could be passed by the appellate Court as a consequential order to the order of acquittal which he had passed in this case. The learned Judge had come to a clear finding that the ornaments were not stolen property and did not belong to the complainant. He has further found in very clear terms that the ornaments were produced by or seized from Bimilia Devi and they belonged to her.
Mr. Sharma submitted that he was entitled to canvass propriety of these findings if he was given notice by the learned Judge on the question of restoration of the property. 1 am, however, unable to agree with this contention. The order of acquittal could not be challenged on merits before the Court which had passed it. The only remedy which the petitioner could have availed of was the filing of a revision to this Court against an order of acquittal or to move the State for filing an appeal against the order of acquittal. The complainant does not seem to have pursued any of these courses. Mr. Sharma relied on a single Bench decision of the Madras High Court reported on Arunachala Thevan v. Vellachami Thevan A.I.R. 1923 Mad 324 where his Lordship in a similar matter observed as follows:-
Ordinarily in such cases it is desirable that notice should be given, especially if the order is not passed on the day the appeal is disposed of; but there is no rule of law that requires that such notice is absolutely necessary. However, as in this particular case, it is not unlikely that the absence of notice of the hearing of the petition by the Sub-Divisional Magistrate has led to the passing of a wrong order for, it is not very clear from the re-, cords whether the bulls really belong to the petitioner or to the accused. I think it better that this case should be sent down to the Sub-divisional Magistrate, requesting him to give a reasonable opportunity to the complainant to place his contention before him, and then to pass final orders as regards the disposal of the bulls.
It seems to me, however, that the facts of the present case are clearly distinguishable from the facts of the Madras case. In the first place, in the present case the order of restoration has been passed as a consequential order along with the order of acquittal in the appeal. Secondly, there is a clew findins; in this case that the ornaments belonged to Bimla Devi and did not belong to the complainant at all. In the Madras case, however, it appears that the materials on the record were not clear as to whether the bulls in question belonged to the petitioner or to the accused. Under those circumstances, in my opinion, the Madras case cannot be of any assistance to Mr. Sharma.
5. It is well-settled that an appellate Court can pass a consequential order while exercising its appellate powers Under Section 423. In this particular case having regard to the clear finding arrived by the learned Sessions Judge there can be no question of giving the properties to the complainant. It is well settled that where an accused person Is acquitted with a finding that the case is false then the property which is the subject-matter of the offence should be returned to the person from whom it was seized. On the findings of the Judge there is no ambiguity on this point and in my opinion where the order of disposal of property is consequent upon the acquittal of the accused on the finding that the properties did not belong to this complainant, no notice need be given to the complainant because on that finding the complainant has no locus stand to ask for restoration of the properties. I am supported in my view by a recent decision of the Andhra High Court reported in Appala Naidu v. Vakaramamurthy (S) A.I.R. 1955 Andhra 45. Mr. Justice Chandra Reddy observed as follows in that case:
Whatever may be said in a case where an order is passed Under Section 520, Criminal P.C. long after the disposal of the appeal, I do not think there is any necessity to issue a notice when the order is consequent upon acquittal on the finding that the properties belonged to the accused and especially to a person to whom properties were delivered improperly or illegally,
It is obvious that in view of the finding of the learned Judge the order of the Magistrate in restoring the properties to the complainant was clearly illegal and, therefore, no notice to the complainant, was necessary to set aside that order which the appellate Court could do in appeal against that order.
6. Finally, notice may have been proper if the of properties in question had been actually delivered to the complainant and the appellate Court had to pass an order of redelivery of those articles to Bimla Devi. This, however, does not seem to be the position in this case. The properties are still lying with . the Court and, therefore, the complainant cannot be said to have been prejudiced, if the appellate if Court gave a finding that he had miserably failed to prove that the ornaments were stolen property or belonged to him. A criminal Court while considering question of restoration of property is not at all t concerned with the question of title or ownership I but has to see the question of possession.
7. For the reasons given above the application fails and is accordingly dismissed. The rule is discharged.