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1936 DIGILAW 170 (CAL)

Ramphal Tatwa v. Jasodia Malain

1936-04-06

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JUDGMENT 1. The Rules issued by this Court in those cases were directed against an order passed by the learned Additional Sessions Judge of Hooghly, at Howrah, on the 4th November, 1935, under sec. 420 of the Code of Criminal Procedure, setting aside 'an order of a Deputy Magistrate, made under sec. 517 of the Code. In a case under sec. 420 of the Indian Penal Code, started on the complaint of Jasodia Malain (Petitioner in this Court in Revision case No. 44 of 1936), Ramphal Tatwa (Petitioner in Revision case No. 1250 of 1935) was acquitted by the Magistrate on the 9th August, 1935. Thereafter, on an application of the complainant under sec. 517 of the Code of Criminal Procedure, the Magistrate directed by his order dated the 16th August, 1935, that the sum of Rs. 495 in cash, two gold mohurs. and some silver ornaments should be restored to her. Ramphal Tatwa applied to the Additional Sessions Judge for a revision of the aforesaid order passed by the Magistrate, and the Judge held that the properties were to be kept in the custody of the trial Court till the claims put forward were finally decided by a Court of competent jurisdiction. 2. The question of jurisdiction of the Additional Sessions Judge to make the order passed by him in the case before us, must be decided against the Petitioner in Revision Case No. 44 of 1936, as in our opinion, the Judge had jurisdiction to revise the order passed by the Magistrate, although the order was passed by the Magistrate in a case in which the accused Ramphal Tatwa was acquitted. 3. The question for consideration in the case before us is whether on the findings of the trial Court, resulting in an acquittal, the Magistrate was in error in not directing the return of the properties in question to the accused Ramphal Tatwa, and whether on the facts and in the circumstances of the case, the Judge, acting under the provisions contained in sec. 520 of the Code of Criminal Procedure, should have directed the properties to remain in the custody of the trial Court, pending decision by a Civil Court of competent jurisdiction. 4. In regard to the order passed by the Additional Sessions Judge, the position must be recognised that the Judge, acting under the conjoint effect of the provisions of secs. 520 of the Code of Criminal Procedure, should have directed the properties to remain in the custody of the trial Court, pending decision by a Civil Court of competent jurisdiction. 4. In regard to the order passed by the Additional Sessions Judge, the position must be recognised that the Judge, acting under the conjoint effect of the provisions of secs. 517 and 520 of the Code of Criminal Procedure, had the discretion under the law to make such an order as he thought fit, for the disposal of the properties in question. The Judge gave reasons for the order made by him; and on the f acts and in the circumstances appearing from the judgments of the Courts below, we are unable to hold that the discretion of the Judge in the matter of giving direction as to disposal of properties in regard to which there was a complaint under sec. 420 of the Indian Penal Code was wrongly or improperly exercised. In this connection it has to be noticed that in view of the provisions contained 'in sec. 517 of the Code of Criminal Procedure as they now stand, it cannot be laid down generally that if no offence was proved to have been committed in respect of property produced before a Criminal Court, and the accused is acquitted, the Magistrate should restore the property to the person from whom it was last taken. The amendment in the year 1923 by the addition of the words " by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise," after the word " disposal" in sec. 517, has materially changed the scope of the law as it stood before the amendment. It appears to be clear from the order recorded by the Magistrate on the 16th August, 1935, and from the judgment of the Additional Sessions Judge in the case before us, that there were conflicting claims to the properties in question in the case, and that the titles set up could only be adequately dealt with by a Civil Court. In consonance with the view taken by this Court in the case of Ram Khalawan Ahir v. Tulsi Telini 28 C.W.N. 1094 (1924), in which the effect of the amendment of sec. In consonance with the view taken by this Court in the case of Ram Khalawan Ahir v. Tulsi Telini 28 C.W.N. 1094 (1924), in which the effect of the amendment of sec. 517 was taken into consideration, we hold that the Judge in the Court below is right in the direction that he has given that the properties referred to in his judgment are to remain in the custody of the trial Court, subject to any order that might be made by a competent Court of civil jurisdiction. The Rules are discharged. The order of the Additional Sessions Judge passed on the 4th November, 1935, is affirmed.