Patna High Court - Orders
Keshar Singh vs The State Of Bihar Through Vigilance ... on 16 December, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25391 of 2013
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Keshar Singh, son of late Ram Singar Singh, resident of West Bailey
Road, Danapur Cantt., P.O. Danapur, P.S. Danapur, District-Patna
.... .... Petitioner/s
Versus
1. The State of Bihar through Vigilance Commissioner (Cabinet
Vigilance), Bihar
2. Sushila Singh, wife of late Dr. Jyotir Bhushan Singh, resident of
2H/56, Bahadurpur Housing Colony, P.S. Agamkuan, District- Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Kamal Nayan Choubey, Sr. Advocate.
Mr. Tuhin Shanker, Advocate.
For the Vigilance : Mr. Rama Kant Sharma, Sr. Advocate.
Ms. Babila Kumari, Advocate.
For O.P. No.2 : Mr. Umesh Prasad Singh, Sr. Advocate.
Mr. Rajesh Ranjan,
Mr. Pandey Sanjay Sahai, Advocates.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
4 16-12-2013Heard learned counsel for the petitioner, learned counsel for the Vigilance and learned counsel for opposite party no.2.
2. This application has been filed for quashing the order dated 4.6.2013 passed by the Special Judge, Vigilance 1, Patna in Miscellaneous Case No.1 of 2013 by which the petition dated 23.5.2013 filed by the petitioner challenging the maintainability of miscellaneous case has been rejected and for further declaration that aforesaid miscellaneous case is not maintainable.
3. From the record it appears that a raid was conducted Patna High Court Cr.Misc. No.25391 of 2013 (2) 2 against Ram Singar Singh and huge amount of properties were found which was assessed to be disproportionate to the known source of income and Special Case No.2 of 1992 against him was instituted. The said Ram Singar Singh died during pendency of the proceeding i.e. before initiation of trial and accordingly criminal case terminated. Large number of properties left by him gave rise to series of litigation as several persons have been claiming right and ownership over the properties be handed over to them. It is one of the case where the petitioner being son of Ram Singar Singh has been litigating for said property against the grandsons (Natis) and Samdhan and Natis and Samdhan are claiming certain properties are their own properties and as such documents of these properties and Bank investments be handed over to them which is being objected by the present petitioner.
4. In the aforesaid raid, papers relating to the lands measuring 20 Kathas of Mauza Jalalpur, Police Station Danapur, sale deeds of two and half Bighas of land in Village Raghunathpur in the district of Munger, sale deeds of Flat No.6 Anand Apartment, Shastri Nagar, Patna, sale paper of Flat No. 204 of Gul Mohar Apartment, South Gandhi Maidan, Patna, paper of Flat No.3452 in Basant Kunj, New Delhi Patna High Court Cr.Misc. No.25391 of 2013 (2) 3 including ornaments were also recovered from locker of Allahabad Bank, Patliputra Branch, Patna including Rs.25,000/- was lying stashed in the Bank locker of Allahabad Bank.
5. It appears that an application was filed by opposite party no.2, Sushila Singh, for and on behalf of herself and for two minor grandsons, namely, Puru Singh and Manu Singh being son of Kumkum Singh who happened to be daughter of Ram Singar Singh died along with her husband in car accident. Sushila Singh in support of her claim has also appeared as a witness and got herself examined. The wife of Ram Singar Singh pre-deceased and later on second son, namely, Kanchan Singh also died issue less and as such both sides are trailing guns against each other with regard to the properties of which documents were recovered from Ram Singar Singh.
6. During life time of Ram Singar Singh an application dated 8.4.1992 was filed by Sushila Singh opposite party no.2 for release of following documents viz, five FDR, item no.89 of inventory dated 28.1.1992, two Unit Trust of India gift vide item nos. 90 and 91 of the inventory dated 28.1.1992, sale deeds vide item nos. 95, 96, 97 and 101 of the inventory dated Patna High Court Cr.Misc. No.25391 of 2013 (2) 4 28.1.1992 and item no.4 of the inventory dated 18.7.1990. The aforesaid application was rejected vide order dated 21.3.1996 which is as follows:
"As has been urged at bar petitioner does not happen to be the owner/proprietor of most of the articles release of which was sought by her as some of those properties are shown to be of son and daughter-in-law and grandsons.
Secondly I find that though investigation had been conclusive and petitioner facing prosecution for amassing wealth disproportionate to known source of her income and those properties seized during investigation are liable to confiscation in the event of petitioner found guilty. Apart from that I find that most of these documents and articles would also be required to be explained in the case if situation warranted and in that view of the matter I find that there was no good cause for release of document in favour of petitioner and prayer for release is accordingly rejected. Put up on 20.4.96 for supply of police papers."
7. From the record it appears that on 12.4.2013 a petition was filed by Sushila Singh opposite party no.2 for release of the properties in her favour. Subsequently another similar application dated 20.8.2008 was filed by opposite party no.2 Patna High Court Cr.Misc. No.25391 of 2013 (2) 5 for and on behalf of grand children and rejoinder to that application was filed by the petitioner resisting the claim of opposite party no.2 and petitioner has also separately filed a petition for release of the properties. While the matter was pending again a separate application dated 12.4.2013 was filed and made a prayer to institute a separate miscellaneous proceeding to facilitate to release of document which they are entitled too. The case was registered as Miscellaneous Case No.1 of 2013. The rejoinder was filed by the petitioner where it has been stated that Sushila Singh, opposite party no.2, did not have right to claim over the property of Ram Singar Singh. At the same time opposite party no.2 has no right to file case on behalf of Manu Singh and Puru Singh who are majors and do have a separate and distinct right to file a separate petition on their behalf and made a prayer that the petition filed by Sushila Singh be rejected.
8. An application was filed by the petitioner on 23.5.2013 challenging the maintainability of Miscellaneous Case No.1 of 2013 and made a prayer that the issue can be decided in an inter pleader suit whereupon the court vide order dated 4.6.2013 (wrongly typed as 4.6.2012) has rejected the application about the maintainability of the application filed Patna High Court Cr.Misc. No.25391 of 2013 (2) 6 by Sushila Singh holding that the court has jurisdiction to deal with the issue of release of seized document to the rightful claimant which is under challenge before this Court.
9. The point that has been raised by the petitioner the Criminal Court will not have jurisdiction to exercise the power under Section 452 of the Code of Criminal Procedure (hereinafter referred to as „the Code‟) as the trial of the case could not conclude resulted into abatement of criminal case on account of death of Ram Singar Singh. The second point that has been raised in this case that the principle of Coram non judice will apply in view of the fact that Criminal Court will not have jurisdiction to try the case where the question arose about the claim made by different parties, in the event of jurisdiction of non-adjudication by the criminal court, the properties can be distributed only by Civil Court after proper adjudication. In support of his contention reliance has been placed on the following judgments:
(i) Tara Chand Vs. The State, reported in A.I.R.1951 Madhya Bharat 154, paragraph 2
(ii) Gagan Bihari Das and others Vs. The State, reported in 2002 (3) Cri. L. J. 3415
(iii) Manjunatta George Varaghes Vs. Patna High Court Cr.Misc. No.25391 of 2013 (2) 7 Government of Manipur, reported in A.I.R.1970 Manipur 40
(iv) (iv) Suraj Mohan Babu Mishra Vs. State of
(v) Gujarat, reported in A.I.R.1967 Gujarat 126
(vi) (v) D.D. Nath Vs. Kanshi Ram, reported in
(vii) A.I.R. 1966 Jammu and Kashmir 143
(viii) (vi) Bhupati Bayen and others Vs. The State, reported in A.I.R.1959 Calcutta 446
10. If nicety and intricacies of the civil law are involved with regard to deciding the right and title of two disputant Criminal Court will not have jurisdiction to adjudicate. He has placed reliance on the following judgments:
(i) Hukumchand Jain Vs. Ram Saroop, reported in A.I.R. 1952 Vindhya Pradesh 66
(ii) Abdul Rahim Vs. State through Salik Ram, reported in A.I.R. 1956 Allahabad 319
(iii) M. Savudi Karuppanan Ambalam Vs. Guruswami Pillai and another, reported in A.I.R. 1933 Madras 434(2)
(ix) (iv) Brojendra Chandra Dey Vs. K.S. Sama, reported in A.I.R. 1931 Calcutta 455
(vi) Gokaldas Kalyanji and another Vs. Mohan Lal Patna High Court Cr.Misc. No.25391 of 2013 (2) 8 Manji Bhai and another, reported in 1963 (1) Cri.L.J. 531
11. Third point that till decision of Civil Court with regard to right, title of seized properties/goods the seized properties/goods will be kept by the Criminal Court till the decision of Civil Court and release the property in whose favour civil court would pass the decree. In support of aforesaid proposition following judgments have been relied:
(i) In re Masgi Bitchanna and others, reported in A.I.R.1969 Andhrapradesh 54, Paragraph 2
(ii) Ram Khalawan Ahir Vs. Tulsi Telini, reported in A.I.R.1924 Calcutta 1040
(iii) Ponaka Balarani Reddi and others Vs. Hazi Mahomed Abdul Aziz Badshah Sahib and others, reported in A.I.R.1915 Madras 57
(iv) In re Masgi Bitchanna and others, reported in 1969 Cri.L.J. 156.
12. 12. Forth point that has been raised that the properties from whom it was seized will be returned to the same person from whom the properties has been seized, in the event of absence of that person, different claimant will have to approach the Civil Court for proper adjudication. In support of Patna High Court Cr.Misc. No.25391 of 2013 (2) 9 his contention he has relied on the following judgments:
(i) Harihar Singh Vs. Nilkanth Singh and
another, reported in A.I.R.1957 Patna 685-
Paragraph 5
(ii) Nalluswami Reddi Vs. Nallammal, reported in A.I.R.1943 Madras 392
(iii) P.R. V.N. Valliappa Chetty Vs. S. Joseph, reported in A.I.R. 1923 Rangoon 248
(iv) K. Srinivasa Moorthi Vs. Narasimhalu Naidu, reported in A.I.R.1927 Madras 797
(v) Naiz Ahmed Vs. State of U.P. and another, reported in 1994 SCC (Cri) 1730=1994 (3) Supp.SCC 356
13. In reply, learned counsel for opposite party no.2 has submitted that on the death of Ram Singar Singh it will be deemed that the case has been concluded and the court has jurisdiction to deal with the seized properties. It has further been submitted that the documents aforesaid are being claimed by her because those documents are standing in her name or in the name of her grand children. It has further been submitted that Ram Singar Singh during his life time has filed an application dated 22.5.1992 where in paragraph 4 has dealt Patna High Court Cr.Misc. No.25391 of 2013 (2) 10 with the properties which are in the name of Sushila Singh as well as STDR of State Bank of India in the name of Puru Singh and Manu Singh and in the said application those properties belongs to them, Ram Singar Singh did not claim over the right, title over the properties and on that strength it is submitted that those properties are of opposite party no.2 and her grand children should be released in her favour.
14. Learned counsel for opposite party no.2 has further submitted that Section 451 of the Code construes when the property is produced before the Criminal Court during enquiry or trial, the court may pass such order for giving property in custody pending the conclusion of investigation and trial. If the property is subject to speedy or normal decay, the court in the ends of justice may direct it to be sold or otherwise disposed of. He has further submitted that Section 452 of the Code would apply in a situation when enquiry and trial in any Criminal Court is concluded. He has further submitted that word concluded connotes the termination of the proceeding and it will not include the abatement as no word has been used at trial stage of case and it can be safely said, on any manner the proceeding is closed or terminated or extinguished Section 452 of the Code will be applicable and it will not confine to Patna High Court Cr.Misc. No.25391 of 2013 (2) 11 full dressed trial and its conclusion. It will also be applicable in a situation when the accused died. If the accused died, the proceeding gets terminated and it will be deemed that the criminal trial comes to an end. He has further submitted that it is not necessary that the court should give full-fledged judgment, does not construe conclusion of trial in a particular manner but in any manner. In support of his contention he has submitted that the word "concluded" has been explained in Black Legal Dictionary, Advance Law Lexicon. He has further submitted that it is not required, the Criminal Court only on mere objection or dispute, the case would be referred to the Civil Court for determination of the right and ownership of the property but it has to be seen who is the valid person to take possession of the property. He has further submitted that vide order dated 2.11.2007 the court below has terminated criminal proceeding on account of death. In support of his contention he has relied on the judgment of this Court in the case of Ramsagar Yadav and another Vs. M. Yunus and another, reported in A.I.R. 1940 Patna 32. He has further submitted that if the Criminal Court during enquiry has faced with a situation of conflict of right and title over the property and that disputed question of right and title cannot be decided Patna High Court Cr.Misc. No.25391 of 2013 (2) 12 without taking full-fledged evidence, only then the matter would be referred to Civil Court. It cannot be said that after termination of the proceeding the Criminal Court is Coram non judice to decide the issue. In support of his contention he has relied on the judgment in the case of Smt. Basava Kom Dyamogouda Patil Vs. State of Mysore and another, reported in A.I.R. 1977 SC 1749. He further submits that the moment the seizure list is produced before the Criminal Court he will have a jurisdiction to deal with release of the property for which it does not require physical production of the same. In support of his contention he has relied on the judgments in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in 2002(10) SCC 283, paragraph 6 and S.P. Forest Cell, Adyar and another Vs. Kannans Co. , reported in 2001(9) SCC 209, paragraph 4.
15. Another point that has been raised by opposite party no.2 that this Court would not be justified to hold that the Magistrate has no jurisdiction to adjudicate or release the seized goods and for that he has placed reliance on Sections 452 and 457 of the Code and judgment in support of his contention are in the case of Ganeshi Lal Ranchhoddas Mahajan and another Vs. Satya Narain Tiwari and Patna High Court Cr.Misc. No.25391 of 2013 (2) 13 another, reported in A.I.R.1958 Madhya Pradesh 39 Paragraph 2 and Gagan Bihari Das (supra), paragraph nos. 5 and 6 where Orissa High Court has held that the Magistrate would make an enquiry as per Section 457(2) of the Code and similar view has been reiterated in the case of Sk. Muktear and others Vs. The State, reported in A.I.R.1954 Calcutta 350 paragraph 3. He has further submitted that this Court will not pass any order ipsi-dixit for referring the matter to the Civil Court for its determination of ownership of the property but the court would be justified in remitting the matter to Civil Court, where faced with vexed question of facts and law and when it would feel that there is really a dispute of right and title.
16. Learned counsel for the petitioner in reply has submitted that though the abatement word is not there in criminal law but the purpose and meaning being followed before coming to constitution and that law survives in view of Article 372(1) of the Constitution. The abatement is a part of common law which has been imported from the England and approved and followed by our legal judicial system. He has relied on the definition of abatement mentioned in Halsbury Laws of England and Advance Law Lexicon by Aiyar‟s Patna High Court Cr.Misc. No.25391 of 2013 (2) 14 edited by former Chief Justice of India Hon‟ble Chandrachur. He has submitted that the theory of law enforce will apply support has been taken from the judgment in the case of The State of Uttar Pradesh Vs. Seth Jagamander Das and others, reported in A.I.R.1954 SC 683 and as such if the accused died during the proceeding the same would abate. Specially he has put emphasis that abatement of proceeding connotes, termination without any decision on merit of the case. He has further submitted that abatement is different to the conclusion and concluded of the trial. The word conclusion connotes the end of suit terminates with the judgment after full dressed trial. He has further submitted that conclusion and concluded will not include a termination of proceeding on account of death of accused. He has further submitted that law of abatement was applicable before enforcement of the Constitution so it will apply.
17. The next point he has replied that abatement mentioned in Section 394 of the Code will be extended to the trial also as the Hon‟ble Supreme Court is giving extension of abatement of appeal to the appeal arising from Special Leave to Appeal. Reliance has been placed on the judgment of the Hon‟ble Supreme Court in the case of Harnam Singh Vs. The State Patna High Court Cr.Misc. No.25391 of 2013 (2) 15 of Himachal Pradesh, reported A.I.R. 1975 SC 236 paragraph 7 and Bondada Gajapathi Rao Vs. State of A.P. reported in A.I.R. 1964 SC 1645 paragraph nos. 9 to 12 and summarized that the extension of abatement is not confined to the appeal but it should also be extended to the trial of the case. He has further submitted that abatement is quite different to the closure and conclusion of trial. In consolidation proceeding the abatement means state of suspended animation from that stage the proceeding may again be revived. He has further submitted that the meaning of abatement in criminal proceeding is quite different to the abatement of proceeding mentioned in Consolidation Act. In a consolidation proceeding, the proceeding does not die but remain suspended and brought to dormant stage but moment the consolidation proceeding is over again the suit is revived. With regard to the abatement of civil proceeding on the death of the appellant or the defendant the suit abates but it can be revived if right to sue survives on proper application is filed by successor and heirs are substituted but in a criminal offence once the accused died it goes extinguished, does not remain in a dormant stage or suspended. Once it dies always it dies. According to him the criminal court has no jurisdiction Patna High Court Cr.Misc. No.25391 of 2013 (2) 16 to make an enquiry on the complicated question of facts and law to decide right and title of ownership of the property of late Ram Singar Singh.
18. Learned counsel for the petitioner has further submitted that Section 457 of the Code applies to the stage of investigation. Section 451 of the Code applies to the stage of enquiry and trial whereas Section 452 of the Code applies after conclusion of the trial. It has further been submitted that the present case falls neither of the aforesaid category as before initiation trial Ram Singar Singh has died thereby the whole proceeding has been abated. In that circumstances it will be the general law with regard to release of the property would apply and relied on the judgment in the case of Puran and another Vs. Emperor, reported in 1906 Cri.L.J.232. He has further submitted that even presuming the application filed by Ram Singar Singh with affidavit or without affidavit disclaiming right over the property is not a vehicle for transferring the property by way of relinquishment or Ladabi Bajidaba, disclaimer and as such that cannot be used for deciding the right of the parties. He has further submitted that in the present case niceties of civil law would apply as it would apply the plea of adverse possession or of Benami Patna High Court Cr.Misc. No.25391 of 2013 (2) 17 Transaction Act. In view of the fact the present petitioner is in possession of the property and admittedly his name has been mutated with regard to ancestral land as well as the land involved in the present case. It has further been submitted that the property was seized from house where the petitioner was residing and as such it should be released in his favour.
19. Learned counsel for opposite party no.2 in reply to reply has submitted that in the present case right of possession has to be seen which would be akin to the proceeding under Section 145 of the Code. This Court under the inherent jurisdiction will not give a direction to refer the case to the Civil Court rather if the court during enquiry would find complicated question of right and title are involved only then the matter would be referred to the Civil Court. He has further submitted that Section 457 of the Code would apply for release of property seized by Vigilance.
20. Learned counsel for the Vigilance has submitted that the court should make an enquiry and if he would satisfy prima facie about the right of the party he would release the property in favour of that party but he finds that it requires a declaration of right and title in that circumstances the matter Patna High Court Cr.Misc. No.25391 of 2013 (2) 18 will be referred to the civil court. In support of his contention he has relied on the judgment in the case of Beni Dan Vs. Laxmichand and another, reported in 1996 Cri.L.J.1191.
21. Before deciding the issues involved in this case certain provisions of the Code has a major role to play. Sections 451, 452, 457 and 458 of the Code are as follows:
"451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or normal decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
452. Order for disposal of property at conclusion of trial.- (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof without any condition or on condition that he executes a bond, with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate who Patna High Court Cr.Misc. No.25391 of 2013 (2) 19 shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.
(4) Except where the property is lives tock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), and order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property, as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted, or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit, and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months form the date of such proclamation.
458. Procedure where no claimant appears within six months.- (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by Patna High Court Cr.Misc. No.25391 of 2013 (2) 20 him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed.
(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate."
22. Section 451 of the Code applies to a situation when any property is produced before any Criminal Court pending an enquiry or trial, the Court may give the property in custody of a person, in case of speedy or normal decay, the Court may pass an order of selling the properties or otherwise disposed of. Section 452 of the Code deals with the situation when an enquiry or trial is "concluded" the Court may pass order in respect of property or document produced before it for disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise. Section 457 of the Code deals with the situation when the seizure of property by the Police Officer is reported to Magistrate and such property is not produced before the Criminal Court, during enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof. If the person entitled is Patna High Court Cr.Misc. No.25391 of 2013 (2) 21 known the property will be delivered. If the person is unknown the Magistrate may detain it, issue a proclamation inviting application from person who may have claim over the property and to appear before him and establish his claim within six months from the date of proclamation. Section 458 of the Code deals with the situation if no person within such period mentioned in the proclamation establishes him claim over the property and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and proceed of such sale shall be dealt in such manner as may be prescribed.
23. The First Issue: Whether the Criminal Court is a court of coram non-judice i.e. having no jurisdiction to try the case with regard to release of subject matter pending before him.
Coram non judice is a Latin proverb. This phrase is particularly applied to the Court that devoid of the jurisdiction in the matter. Advance Law Lexicon by P. Ram Nath Aiyar edited by Hon‟ble Y.B. Chandrachur and according to Webster dictionary the coram non judice has been giving meaning before a Judge not competent or without jurisdiction Patna High Court Cr.Misc. No.25391 of 2013 (2) 22 to deal with the matter. Learned counsel for the petitioner has raised a claim that the Criminal Court is a court of coram non- judice and will have not a jurisdiction to adjudicate as to who is the person entitled of release of the property which was seized from late Ram Singar Singh as the documents were seized from the possession of Ram Singar Singh and he has already died. Different claimants are coming forward. One set of claimant is son, another set of claimants are grand children (daughter‟s son) and Samdhine. The claim has been made by the petitioner that it is the Civil Court who has jurisdiction to adjudicate the entitlement of the property and only thereafter the property would be released in favour of the person who would obtain a decree from the Civil Court whereas other side has raised that the Criminal Court is not a court of coram non- judice but will have a jurisdiction to adjudicate and to release the property in whose favour Criminal Courts come to a conclusion of the entitlement of the property. He has further submitted that here is not the question of entitlement of the property but only relating to release of document of the property to the person whose names were standing in the respective documents seized from the possession of Ram Singar Singh and as such question of Patna High Court Cr.Misc. No.25391 of 2013 (2) 23 entitlement does not arise even presuming that some right has to be adjudicated. It has been submitted that the Criminal Court only in a case of serious question of right, title and possession would arise in that circumstances the Criminal Court will not adjudicate the issue. But in a case when there is no serious dispute of fact and law, the court is not required to examine the niceties of civil law in that circumstances there is no bar to examine the matter and come to a conclusion.
24. It will be appropriate to examine the judgment relied by learned counsel for the petitioner in the case of Tara Chand (supra). In this case a case was filed by one Chhabiram against one Chandra Sen for having committed theft in respect of certain gold and silver ornaments. The police recovered the ornaments seized from Chandra Sen but Chandra Sen died during pendency of the trial. On account of death of Chandra Sen the trial abated, the seized property was produced with a purpose to return the property to Chhabiram but Tara Chand heir of deceased Chandra Sen applied to the court for return of the property to him. The Sessions Court rejected the claim of Tara Chand where the court has held that order of the Magistrate with regard to disposal of the property being illegal and without jurisdiction. A Magistrate has no Patna High Court Cr.Misc. No.25391 of 2013 (2) 24 doubt the power to restore the property to the possession of any party but the Magistrate has jurisdiction to exercise this power only after the inquiry or trial relating to the offence with respect to the property concerned, has "concluded". In Section 517 of the Old Code (452 New Code) means "concluded after a full hearing with a final judgment or determination of the case against the accused." The Court has further held that an order under Section 517 of the Old Code (452 New Code) can be made only on the basis of the evidence recorded in the inquiry or trial and in accordance with the findings the Magistrate may arrive on that material. On account of death of accused the proceeding terminated without any decision on merit and the Magistrate retains no jurisdiction to give any decision on merits, then the Magistrate has no jurisdiction to pass any order as regards the return of the property to either party. In such circumstances, the property must be returned to the police for disposal in accordance with law. The court has further held that when the trial abates due to the death of accused it cannot be said that it has been concluded. When once the property is sent to the Magistrate with a charge-sheet, no proceedings in respect of the property can be taken by the police under Section 523 of Patna High Court Cr.Misc. No.25391 of 2013 (2) 25 the Old Code (457 New Code) so long as the Magistrate has jurisdiction to dispose of the property in accordance with Sections 517 (452 New Code) and 518 of the Old Code. But in a situation when the death has taken place the trial and inquiry cannot be concluded and the Magistrate for that reason does not retain the jurisdiction to give a finding or to make a final judgment on the material before him, the power of the police to make a report to the Magistrate under Section 523 of the Old Code (457 of the New Code) for the disposal of the property is not taken away. On consideration of Sections 517 and 523 of the Old Code (452 and 457 of the New Code) and the Court has concluded that if any property alleged or suspected to have been stolen or found under circumstances which have created suspicion of the commission of any offence and seized by the police cannot be disposed of under Section 517 of the Old Code, (452 of the New Code) then Section 523 of the Old Code (457 of the New Code) would app1y.
25. Identical issue came up for consideration before Jammu and Kashmir High Court in the case of D.D. Nath (supra). In that case 106 bales of wool were entrusted at Delhi by the complainant to the accused for transportation to Patna High Court Cr.Misc. No.25391 of 2013 (2) 26 Srinagar and the consignee was the Government Woolen Mills Srinagar but the goods were diverted, instead of delivery at Srinagar, it was retained at Jammu by the accused persons. An application was moved with a prayer that the wool may be sent to the Government Woolen Mills and the trial court ordered for sending it to the Government Woolen Mills Srinagar and it was directed that the price of the wool would be retained by the Court and payment would be made after the conclusion of the trial. This issue came up for consideration where the Court was considering the parameter of Sections 516A and 517 of the Old Code (451 and 452 of the New Code). It has been held that Section 516A of the Old Code ( 451 of the New Code) deals with the disposal of the property pending trial in certain cases and it lays down "when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary order it to be Patna High Court Cr.Misc. No.25391 of 2013 (2) 27 sold or otherwise disposed of." There the Court has also considered the scope of Section 517 of the Old Code (452 New Code). The word that has used under Section 517 of the Old Code (452 of the New Code) is inquiry or trial in a criminal court is concluded, the Court may make such order as it thinks fit for the disposal of the property. The Court has taken the view that under Section 516-A of the Old Code (451 of the New Code) and also under Section 517 of the Old Code (452 of the New Code) the Court has no power to finally hand over the property or its cash equivalent to a party during pendency of trial or inquiry is still to be concluded. The Court has considered that in Section 516-A of the Old Code (451 of the New Code) words used are "pending the conclusion of the enquiry or trial" and in Section 517 of the Old Code (452 of the New Code) the words are "when the trial or enquiry is concluded". The Court has also considered the meaning of concluded as has been used in Section 517 of the Old Code ( 452 of the New Code) relying on the judgment in the case of Karunamoy Mukherjee Vs. Kalika Prosad Bhadury, reported in AIR 1950 Calcutta 369 held that word "concluded" in Section 517 of the Old Code (452 of the New Code) has been used to mean "conclusion after full enquiry". Patna High Court Cr.Misc. No.25391 of 2013 (2) 28
26. The Calcutta High Court in the case of Bhupati Bayen (supra) had an occasion to consider the applicability of Section 517 of the Old Code (452 of the New Code). The Court is of the view that Section 517 of the Code applies in case of conclusion of enquiry and trial. The Court has also considered Section 523 of the Old Code (457 of the New Code). The order under Section 523 of the Old Code (457 of the New Code) refers to a seizure by any police officer of property taken under Section 51 of the Code on the suspicion to have been stolen or suspicion to have been committed offence and order could be passed on the material before the Magistrate without any independent enquiry and enquiry is required where persons entitled to possession is unknown. The Court has held the order under Section 523 of the Old Code (457 of the New Code) would be passed on the report of the police, not on the application by the party.
27. The Orissa High in the case of Gagan Bihari Das (supra) has considered the identical issue raised before the Court as to how property which was seized from the accused would be disposed of in the event of death of accused persons. In this case the Vigilance Department seized the movable property which included the cash ornaments and bank Patna High Court Cr.Misc. No.25391 of 2013 (2) 29 deposits. In course of enquiry or trial the accused Somnath died. After the death of accused person, the legal heir and successors filed an application before the Special Judge for release of the goods attached in connection with the said case and Special Judge held that there is no provision in law for releasing the property seized and attached, in connection with the case, in favour of legal heirs and accordingly the prayer was rejected. The matter came for consideration before the High Court, has endorsed the view as has been mentioned in the case of Tara Chand (supra) and reached to the conclusion that Section 452 of the Code applies to the disposal of the property when the trial and enquiry has concluded. But in a situation trial and enquiry has not concluded provision of Section 452 of the Code will have no application with regard to the disposal of the property. The word „concluded‟ in Section 517 of the Old Code (Section 452 of the New Code) means, matter has come to rest after a full hearing with a final judgment or determination of the case otherwise Section 452 of the Code will have no application when the proceeding has abated on account of death of accused persons. The Court has opined that though there is provision for confiscation under the Prevention of Corruption Act as it is silent but in view of Patna High Court Cr.Misc. No.25391 of 2013 (2) 30 Section 42 of the Code the Court in exercise of power under Section 452 of the Code is empowered to confiscate the property. The Court has held that in a situation when the trial has not been concluded Section 452 of the Code will not be in operation but has held that the property can be disposed of in exercise of power under Section 457(2) of the Code. While dealing with Section 457(2) of the Code it has been held that under the provision of Section 457 of the Code if the Magistrate orders for delivery of property he has to deliver it to the person entitled to the possession thereof. The Court has to satisfy himself from the records and materials available before him that the person to whom the delivery of property is to be ordered is entitled to possession. If the materials are not sufficient, he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to Patna High Court Cr.Misc. No.25391 of 2013 (2) 31 lawful possession. The expression „entitled to possession‟ is the sine quo non for the delivery of property under Section 457 of the Code. The sine quo non for the delivery of property under section 457 of the Code is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property is not respected by law. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession but this possession is not of a thief or a cheat but of a person who has right to hold it and remanded the matter to the court below for passing the order.
28. A similar type of issue came up for consideration before the Madhya Pradesh High Court in the case of Ganeshi Lal Ranchhoddas Mahajan (supra). The Court has endorsed the view of case of Tara Chand (supra). In this case the fact was that one Satya Narain Tiwari lodged a report at Chhatripura police station claiming that a pair of gold Kadas was taken by Sadhu Singh with the promise to return but he resiled from his commitment and pleadged those Kadas to Ganeshi Lal (petitioner). On complaint the police recovered Kadas from the petitioner and made claim for release of Kadas that was objected. The lower court directed the parties to Patna High Court Cr.Misc. No.25391 of 2013 (2) 32 approach the Civil Court to establish their claim. The matter came up for consideration before the High Court. The Court was considering the matter under Old Code. The Court took the view that Sections 516-A and 516 of the Code will be applicable during the enquiry or trial and Section 517 of the Old Code will be applicable either at the time of passing of final order or at the conclusion of enquiry or trial and further held that Section 516A or Section 517 of the Code would not be applicable but Section 523 of the Old Code will be applicable and the Magistrate would dispose of the property seized by the police under Section 51 of the Code. The High Court has taken the view that the property in question was seized from the petitioner and as such the same should be returned to the possession of the petitioner until the prosecution case against the accused is established and is found guilty.
29. This Court in the case of Ramsagar Yadav (supra) had an occasion to consider the power of Magistrate to release the property which was seized by the police. In this case certain plot of land was settled by the landlord to the tenant for one year but he did not give possession after the expiry of Patna High Court Cr.Misc. No.25391 of 2013 (2) 33 the period. The land was settled with another person. A proceeding was initiated on the letter of the landlord alleging that tenant was cutting the unripe paddy, on receipt of the same the police seized the crop. An application was filed for release of the property. The Magistrate was of the view that it was not possible to pass the order with regard to disposal of the property without coming to a definite conclusion. Accordingly directed the police to retain the paddy in their custody, in the event of decay sold the same and deposited the money in safe custody pending orders from a proper Court. This Court has considered the provisions of Section 523 of the Code and held that the Magistrate has wrongly refused to decide the issue as Section 523 of the Code empowers the Magistrate to dispose of the property and directed to decide the issue of release of crops one way or the other. In that judgment the Court has held that "if the Magistrate decides that one or other of the party was in possession at the time the police seized the property, the proper order to be passed will be to restore that party to possession. If the Magistrate is unable to decide who is in possession, it will be his duty to issue a proclamation under sub-section (2) of Section 523 and proceed in accordance with the provision of that sub-section." Patna High Court Cr.Misc. No.25391 of 2013 (2) 34
30. The Calcutta High Court in the case of Sk. Muktear (supra) has considered the scope and parameter of Sections 516-A, 517 and 523 of the Code. The Court has held that Sections 516-A and 517 of the Code deals with the cases which have actually come up before the criminal court to deal with the enquiry or trial in a criminal court. Section 516-A of the Code enables a Magistrate to provide for the interim custody of goods pending the conclusion of the inquiry or trial before the Court. Section 517 of the Code provides for the disposal of property after inquiry or trial is over. In a case where there has been no inquiry or trial in a Criminal Court, the proper section to apply will be Section 523, which deals with first of all, properties found on a person arrested without warrant by the police, secondly, suspected stolen properties, and thirdly, when properties are found under such circumstances as create a suspicion of commission of an offence. The Court has held that when the proceedings never reached at the stage of inquiry or trial and the Court has not taken cognizance under such circumstances Sections 516-A and 517 of the Code would not apply but section 523 did.
31. In view of the above discussions, it is a fact that the Vigilance Department on raid conducted in the premises of Patna High Court Cr.Misc. No.25391 of 2013 (2) 35 Ram Singar Singh the documents showing acquisition of huge amount of property disproportionate to his known source of income were seized. On death the parties are claiming their respective right over the property. In view of the aforesaid discussion though the Court may not have a jurisdiction to dispose of the property as provided under Sections 451 and 452 of the Code. In view of abatement of the proceeding on account of death of Ram Singar Singh but Section 457 of the Code deals with the situation where the property has been seized by the police and the trial and enquiry has not concluded and as such the proceeding before the Special Court cannot be said to be without jurisdiction i.e. a court of coram non judice but what extent he can make enquiry will be discussed later on and in this way the point raised by the petitioner that the Special Court has no jurisdiction to deal with the disposal of the property is without any substance. Accordingly this issue is decided against the petitioner.
32. The second important issue that has been raised by the petitioner as well as opposite party no.2 claiming that the property was recovered from Ram Singar Singh and the petitioner happens to be son of Ram Singar Singh and as such the property should be released in his favour but has been Patna High Court Cr.Misc. No.25391 of 2013 (2) 36 controverted by the other side that the property was not of Ram Singar Singh as the name of O.P. No.2 and grand children are standing on the record and they are the real person in whose favour property should be released. The point that has been raised that the goods should be returned to person from whose possession property has been seized and a incidental point raised, the property/goods is not in custody or before the Court and as such it cannot be said, the Court is custodia legis.
33. A question came up for consideration before Hon‟ble Supreme Court about the return of the seized property when the same is produced before the Magistrate the court has held that the object of the Code seems that any property which is in control of the Court either directly or indirectly should be disposed of by the Court in just and proper manner. In this Case the point was raised as the property was not brought before the court and as such the court cannot be said to custodia legis in that circumstances the court can not pass order on granting possession of property/goods. The Hon‟ble Supreme Court in the case of Smt. Basava Kom Dyamogouda Patil (supra) has held that production before the Court does not mean physical custody or possession by the Court but includes even control exercised by the Court by Patna High Court Cr.Misc. No.25391 of 2013 (2) 37 passing an order regarding the custody of the articles. The property should be restored to the original owner after the necessity to retain to its ceases. Further held that it is manifest that there may two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice.
34. The Hon‟ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat, reported in (2002) 10 SCC 283 has endorsed the view and has quoted paragraph 4 of Smt. Basava Kom Dyamogouda Patil case (supra). Facts of both the cases and the fact of the present case are different.
35. In the another case the question of return of goods/property came up for consideration before the Hon‟ble Supreme Court in the case of Pushkar Singh Vs. State of Madhya Pradesh and Another, reported in 1954 Cri. L. J.
153. In this case a complaint case was filed that Pushkar Singh Patna High Court Cr.Misc. No.25391 of 2013 (2) 38 has committed theft of money but in the trial he was acquitted. The question arose for release of money. The Hon‟ble Supreme Court has held that as money was recovered from Pushkar and he was acquitted from the charge directed for the release of money of Pushkar. In nutshell the money recovered from the possession was returned to him.
36. In view of aforesaid discussions, the court would pass order in favour of person for issuing direction to give possession of the property from whose possession, the same was recovered, but in a situation when there is no dispute of right and title. Now another question that has cropped up before this Court for consideration in the present case in a situation when the rival claimants are coming forward making claims over the property to whom the property should be released. The submission has been made that the property should be released to the person from whom the same has been seized. In case of diverse claim, the proper course would be to ask the parties to approach the Civil Court. A similar issue arose before Rangoon High Court as to whom the property should be released. In the case of P.R.V.N. Valliappa Chetty (supra) the Court has held that where nicety of civil law is involved, the Criminal Court should refer Patna High Court Cr.Misc. No.25391 of 2013 (2) 39 the matter to the Civil Court as the Criminal Court would not decide the dispute of right over the property in a situation where there is doubt, not necessarily a strong doubt not even a reasonably arguable one, such as may arise where the decision involves a contentious point of civil law, the normal course of restoring the property to the person from whom it was seized should be followed, and the dissatisfied party should be left to seek his remedy in a Civil Court.
37. In the case of K. Srinivasa Moorthi (supra), the Madras High Court has held that where the title to seized property is doubtful, it should be returned to the person from whom it was seized, unless there are special circumstances which would render such a course unjustifiable.
38. This Court also in the case of Harihar Singh Vs. Nilkanth Singh and another, reported in AIR 1957 Patna 685 held that if it was very difficult to come to a definite finding as to whom the goods belonged then it will be a judicious action that the goods be handed over to that person from whose possession the same was found. The Court has approved the view of Madras High Court in the case of K. Srinivasa Moorthi (supra) where it was observed that in a Patna High Court Cr.Misc. No.25391 of 2013 (2) 40 case where the title to seized property is doubtful it should be returned to the person from whom it was seized unless there are special circumstances which would render such a course unjustifiable.
39. As is apparent from the fact that the property from whose possession was seized has already died and on account of his death the proceeding came to an end. Learned counsel for the petitioner submits that the proceeding has abated whereas the opposition disputed the proposition that there is no word abatement in the Code only this word has been used under Section 394 of the Code while the appeal was pending. In criminal proceeding abatement is nothing but a termination (as per Advance Law Lexicon) of the proceeding without any decision on the merits and without the assent of the prosecutor. But in a civil proceeding the abatement means merely state of suspended animation from which the suit may be revived. As per Halsbury Laws of England Vol.28 paragraph 214 on the death of either party to an action of liable or slander, the action abates even where special damage has accrued agreed to estate of the plaintiff. However, there is no abatement by the reason of either party between the verdict Patna High Court Cr.Misc. No.25391 of 2013 (2) 41 or finding of the issues of fact and the judgment and judgment may be given in such a case notwithstanding the death.
40. Here is not issue is involved, the abatement in context of criminal jurisprudence though the word abatement has not been defined but in a general parlance abatement means termination of proceeding before decision of case on merit. In the context of criminal proceeding abatement can not have any other meaning then it will be a termination of proceeding without decision on merit. But this Court has to decide as to whether the word conclude used in Section 452 of the Code takes in sweep, termination proceeding without final result on merit of case. While examining subject and context, the word "conclude" has been used in section 452 of the Code it has to be seen the manner arrangement and sequence of section mentioned in Chapter XXXIV which deals with the disposal of the property/goods. On close analysis of section 451 of the Code it applies when the property is produced during enquiry or trial. Section 452 of the Code deals with when the enquiry or trial in a criminal case has concluded. Here the word concluded does not include the abatement of proceeding on account of death or termination or closure of proceeding but it deals with situation when the criminal court after proper Patna High Court Cr.Misc. No.25391 of 2013 (2) 42 marshaling of facts and law concluded the proceeding meaning thereby has given final verdict, Section 457 deals in a case where there is no enquiry or trial the properties found with a person arrested without warrant by the police, secondly suspected stolen properties and thirdly when the properties found under such circumstances as create a suspicion of commission of an offence (Section 102 of the Code). Admittedly in this case proceeding has abated, terminated on account of death of the accused. It cannot be said that the proceeding has concluded in terms of Section 452 of the Code and this view is fortified from the judgment in the case of Sk. Muktear (supra) and Tara Chand case (Supra). So in this situation when the proceeding has abated the Magistrate will not have a jurisdiction to release the property in exercise of power under Sections 451 and 452 of the Code.
41. As has been claimed by opposite party no.2 even though this Court comes to a conclusion that the court will not have a jurisdiction to release the property in exercise of power under Section 452 of the Code on account of abrupt termination of the proceeding that does not mean the Court is devoid of power but the court can exercise its power under Section 457 of the Code. In support he has driven force in his Patna High Court Cr.Misc. No.25391 of 2013 (2) 43 argument from the case of Gagan Bihari Das (supra) where the Orissa High Court has concluded that in a situation when the accused died in course of trial the Court cannot be said to be devoid of power but can release the property to the person who is entitled to possession. But the Court has held that the test is not mere the possession of the property at the time of seizure but has to be tested who is entitled to lawful possession. As the expression entitled to lawful possession is the sine quo non for the delivery of property under Section 457 of the Code and has given an example that the property can not be released in favour of thief or a cheat. As per the judgment of Hon‟ble Calcutta High Court in the case of Sk. Muktear (supra) if the property is seized by the police during investigation on suspicion of commission of offences or stolen property, where there has been no enquiry or trial by Criminal Court, the proper section to apply will be Section 523 of the Code (Old Code), the Magistrate would pass order for disposal of property. The judgment of Gagan Bihari Das (supra) has not given direction but has held that if the accused died during the trial the Criminal Court in exercise of power under Section 457 of the New Code can pass the order for disposal of the property but has opined that property should be Patna High Court Cr.Misc. No.25391 of 2013 (2) 44 handed over to lawful person. Here it is very important to note that Calcutta judgment was passed in context of Section 523 of the Old Code. Section 523(1) of the Old Code was couched with different wordings. After amendment in 1973 Section 523 of the Code was renumbered as Section 457 but certain words used in section 523 were deleted. Such as in Section "523" which reads as follows:
"The seizure by any police-officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property."
42. In Section 457 the following portion of Section 523 has been deleted:
"The seizure by any police-officer of property taken under Section 51, or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence has been deleted and it has been made whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit."Patna High Court Cr.Misc. No.25391 of 2013 (2) 45
43. So the thought ingrained in Section 523 of the Code about the seizure of the property under Section 51 and the property suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence has conspicuously removed from the new substituted section. In this way there is major change in Section 457 of the Code by deleting certain clause from Section 523 of the Old Code. In that circumstances in the opinion of this Court Section 457 of the Code will not only applicable before taking cognizance of case but applicable when enquiry or trial terminates on any reason including on the death of accused during the trial court before whom the proceeding is pending cannot be said that he can not make an inquiry for the purposes of releasing of property to the parties considering a disputant claim.
44. In the present case the property from whom has been recovered is dead. Different claimants are coming forward in such a situation when the parties are claiming their rival claim over the property how far the Magistrate can make enquiry on rival claim of disputant party about their right and title. According to the Calcutta High Court in the case of Ram Khalawan Ahir (supra) the Court has taken the view that Patna High Court Cr.Misc. No.25391 of 2013 (2) 46 when there is dispute of title matter will be referred to Civil Court and direction of possession would abide by the result of title suit as conflicting right cannot be decided by Criminal Court and during that period the property will remain under the custody of criminal court.
45. The Calcutta High Court in the case of Brojendra Chandra Dey (supra) has held that under Section 516 of the Old Code the Court may make an order for the custody of the property pending the conclusion of the enquiry or trial the reason being that in some cases it becomes necessary to preserve the property either as evidence or in order to make a proper order after the criminal case has come to an end. The Court has held that Section 517 of the Old Code will apply in a situation after the conclusion of trial.
46. The Madras High Court in the case of M. Savudi Karuppanan Ambalam (supra) has held that when a person accused of theft is acquitted from the charge, the property should be returned to that person from whom the property was seized where there is dispute of ownership the criminal court should not decide the issue of ownership but the dispute of ownership will be decided by the Civil Court.
47. In the case of Abdul Rahim (surpa) the Court has Patna High Court Cr.Misc. No.25391 of 2013 (2) 47 held that on acquittal from the criminal case the recovered property should be returned to the person from whom the recovery was made but the Court has held that the Criminal Court has no jurisdiction to determine the title of the property. The court has held that in Section 517 of the Old Code the question of possession can be decided by the court not the title. The question of deciding ownership and title is not the function of the Criminal Court.
48. In nutshell the conclusion is derived, in case of serious dispute of right, title and ownership of the property the Criminal Court will not adjudicate the ownership and title of the property seized as jurisdiction lies within the domain of Civil Court and the Criminal Court would abide by the result of the decision of the Civil Court and till then the property will remain under the custody of Criminal Court which is supported from the view of Andhra Pradesh High Court in the case of In re Masgi Bitchanna (supra) the Court has held that in serious dispute about the title and ownership the parties would be asked to approach the Civil Court and get the dispute settled as the Criminal Court can not go into these disputes and decide. In any case, such a decision would be Patna High Court Cr.Misc. No.25391 of 2013 (2) 48 subject to the decision of the Civil Court till the dispute is decided. But the parties or any one of them who approach the Civil Court can get necessary directions of the Civil Court if the property has to be preserved.
49. In the case of Gokaldas Kalyanji and another Vs. Mohanlal Manjibhai (supra) the Gujarat High Court has taken the view that on the acquittal of the person, the property be returned to the person from whom property has been recovered but will not be applicable universally. Criminal Court would not decide the title but it should be left to Civil Court.
50. The Hon‟ble Supreme court in the case of Naiz Ahmed (supra) has held that on acquittal of the person in connection with theft the truck seized to be returned to the victim and the auction purchaser will not have a right to claim over the property.
51. In the case of Hukumchand Jain (supra) the Court has held that Section 517 of the Old Code now Section 452 of the New Code enable the Court to restore the proceeding to the party claiming possession but is neither possible nor Patna High Court Cr.Misc. No.25391 of 2013 (2) 49 proper for it to investigate the question of title. If the offence is not proved the court should restore the status quo auto. If the offence has been committed, then also the status quo is to be restored but not the one before the seizure of the goods by the police, but the one before the commission of the offence in respect of goods.
52. In view of the aforesaid discussions this Court holds that Sections 451 and 452 of the New Code cannot be made applicable for the disposal of the property as during the trial Ram Singar Singh being accused died and on account of death the proceeding has abated and it will not be deemed that proceeding has concluded in absence of final judgment by the Criminal Court. In that circumstance Section 457 of the New Code has a play in this case but the criminal Court will not have a jurisdiction to decide the rival title and ownership claimed by the parties. The Criminal Court will have a jurisdiction only to the extent when there is no serious dispute of title, ownership and possession over the property.
53. Accordingly this petition is disposed of with direction to make enquiry but when it finds the serious dispute of right, title and possession is involved and while deciding the issue Patna High Court Cr.Misc. No.25391 of 2013 (2) 50 several legal niceties civil are found to be involved, the Court would ask the parties to get their right title decided by Civil Court, till then those properties would remain under control and possession of the Criminal Court. The possession and documents would be handed over to the person as per the judgment of Civil Court.
54. In the present case the Court while deciding the case will have to keep in mind the allegation has been made, Ram Singar Singh had accumulated the property beyond known source of income and he was charged for the offence under the Prevention of Corruption. It has been mentioned in the charge sheet that Ram Singar Singh had purchased the property in the name of different relatives. In this view of the matter, this petition is disposed of with a direction to the Criminal Court to pass an order in accordance with law on the principle set out hereinabove and the Court will not go on deciding the rival claim of ownership and title over the property of Ram Singar Singh with regard to documents recovered from his possession.
Vinay/- (Shivaji Pandey, J)