Patna High Court
Harihar Singh vs Nilkanth Singh And Anr. on 25 July, 1957
Equivalent citations: AIR1957PAT685, 1957(5)BLJR743, 1957CRILJ1442, AIR 1957 PATNA 685, 1957 BLJR 743
ORDER Imam, J.
1. This is an application in revision against the order of the learned Sessions Judge Setting aside the order of the trial Court, under Section 517 (4), Criminal P.C., by which he directed that the mare in question shall be restored to the complainant in the case.
2. It appears that there was a complaint filed against Nilkantha Singh and Saudagar Singh for an offence under Section 411, I. P. C. It is said that the complainant's mare was missing and ultimately she was recovered from the possession of Nilkanth Singh.
3. The case of Nilkanth Singh was that Saudagar Singh had sold the mare to him. The trial Court acquitted both the accused before it on the ground that the explanation given by Nilkanth Singh was satisfactory and it acquitted Saudagar Singh on the ground that there was no evidence against him whatsoever. There was no appeal preferred against the order of acquittal, but the learned Sessions Judge was moved against the order of the trial Court in so far as the order was under Section 517 (4), Criminal P.C., by which he restored the mare to the complainant.
The learned Sessions Judge after hearing the parties set aside the order of the trial Court and directed that as the mare was recovered from the possession of Nilkanth Singh, she must be restored to him.
4. Mr. Nageshwar Prasad appearing on behalf of the petitioner submits that the learned Sessions Judge was not empowered under Section 520 to hear the matter in appeal. In fact, no appeal lay before the learned Sessions Judge and his entire order was without jurisdiction and must be set aside. In order to determine this question of law it is necessary to consider Section 520. This section is as follows :
"Any Court of appeal, confirmation, reference or revision may direct any order under Section 517, Section 513 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."
Mr. Nageshwar Prasad submitted that the words "Court of appeal" really refer to that Court which would hear the appeal from the order of the trial court concerning conviction or acquittal, and as there was no appeal against acquittal before the learned Sessions Judge, as there could not be under the law, the learned Sessions Judge has no jurisdiction to interfere. In my opinion, the word "any" before the words "Court of appeal, confirmation, reference or revision" is important. There can be no doubt that there are conflicting decisions on this point. Some Courts have held that the words "Court of appeal" refer to that court which has the right to hear the appeal as against the order of conviction or acquittal.
This view has been held in the cases of Ibrahim Rahmatullah v. Emperor, AIR 1947 Nag 33 (A); Srinivasa Moorthi v. Narasimhalu Naidu, ILR 50 Mad 916: (AIR 1927 Mad 797) (B); Kanshi Ram v. Emperor, AIR 1924 Lah 75 (C). All these decisions are Single Judge decisions. As against them there are two Pull Bench decisions, one of the Rangoon High Court and the other of the Bombay High Court, and one Division Bench decision of the Calcutta High Court. All of them have held that the words "Court of appeal" are not limited to a court before which appeal from order of acquittal can lie but to any court of appeal. The Calcutta decision is reported in Banur-ud-din Biswas v. Gani Mia Sawdagar, AIR 1936 Cal 21 (D), and it was observed there that "the words 'Court of appeal' as used in Section 520 of Criminal P.C., are not limited to a Court in which appeal from an order of acquittal whereby also order under Section 517 is passed could lie. The jurisdiction of the Court of appeal to deal with an order under Section 517, Criminal P.C., for disposal of property found to be in the possession of accused charged under Section 411, of Penal Code is not dependent upon the question in what Court an appeal from an order of acquittal might have been brought, and which in point of fact has not been brought."
The Full Bench decision of the Bombay High Court is reported in Walchand Jasraj v. Hari Anant, AIR 1932 Bom 534 (E). It was observed in that case that "Section 520 means that any Court, which has powers of appeal, confirmation, reference or revision in respect of the trial Court, that being the Court subordinate thereto referred to in the section, can make any substantive order it thinks fit in respect of property dealt with by the trial Court under Sections 517, 518 or 519. If an application is made to the Sessions Court as the Court having powers of revision in respect of the trial court in regard to orders relating to property made under Sections 517, 518 or 519, then, the Sessions Court can itself make a proper order and need not refer the matter to the High Court."
The decision of the Rangoon High Court, which is again a Pull Bench decision of that Court, is reported in U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 (FB) (F). It is observed in that case as follows:
"In the case of an acquittal by the trial Court, both the Sessions Judge and District Magistrate as a Court of revision have power, under Section 520, to interfere with the order of the trial Court passed under Section 517 regarding disposal of property in respect of which the offence was committed and in the case of a conviction by a First Class Magistrate the District Magistrate has, in the absence of an appeal to the Sessions Court, power to interfere with an order passed under Section 517 by the trial Court."
It must also be remembered that Section 520 is not confined only to courts of appeal, reference and confirmation but also refers to courts of revision.
5. The next point raised was that the appellate court has not considered a number of points before passing the order that it did. The learned Sessions Judge has undoubtedly considered a number of points, e.g., the evidence of the veterinary doctor, who by some mathematical calculations and other scientific methods tried to establish that the mare in question was the issue of another mare produced before the doctor. The learned Sessions Judge rightly said that it was impossible to enter into the question of heredity & then enter into the niceties of mathematical calculations in relation to it, and, in my opinion, he rightly held that he was not going to be guided by these methods for determining whether the mare in question was an issue of another mare produced in Court.
The learned Sessions Judge, has, of course, not considered the prosecution witnesses in detail on this point, but he has referred to them in his judgment to the effect that there are prosecution witnesses Nos. 2, 3, 4, 5 and 6 who have come to depose that the mare in question belonged to the complainant. He also has said that as against this there is the counter-balancing evidence of D. Ws. 1 and 2. It is true that the trial court considered that the age of the mare as given by the complainant was more in consonance with her age than what has been given by the accused, and it is also true that the trial court has considered that the description of the mare, namely, the colouring, was similar to what was found with the mare in question.
It seems to me that the trial court was of the view that the explanation given by Nilkanth that he had bought the mare from Saudagar Singh was satisfactory. If that is correct, whatever sin Saudagar Singh may have committed, Nilkanth Singh has given good money for the mare and, therefore, it cannot be said that he has got no right to make a claim; I do not for a moment say that he has established his right to this mare. So far as Saudagar Singh is concerned, as there is no evidence against him, no criticism can be made about him in this case.
The learned Sessions Judge found himself in an unenviable position, namely, that it was very difficult to come to a definite finding as to whom the mare belonged, and then he rightly directed that she be handed over to that person in whose possession she was found; the view of the Madras High Court in the case of ILR 50 Mad 916: (AIR 1927 Mad 797) (B), cited by Mr. Nageshwar Prasad, has some value. It was observed in that case 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, I am, therefore, satisfied that no substantial ground is made out for interfering with the order passed by the learned Sessions Judge. The application, therefore, is rejected.