Ramchandra v. Hastimal Jain — 1955 DIGILAW 74 (MP)

ORDER : 1. This judgment will dispose of three criminal Revisions No. 58 of 1954 filed by Ramchandra against Hastimal, No. 57 of 1954 filed by the petitioner Ramchandra against Chhotelal and No. 59 of 1954 filed by Motilal against Hastimal and Chhotelal. 2. It is necessary to state some facts in order to understand the points involved in these revisions. It appears that the applicant Hastimal gave information on 23-10-1946 to Sarafa Police that one Mohanlal had taken ornaments from him for showing them to Maharaja Tukojirao, but it appeared that those ornaments were then pledged with Ramchandra and Motilal and were not returned to Hastimal. A similar report was lodged by non-applicant; Chhotelal on 27-10-1946. So, two cases under S. 420, I.P.C. were registered on 22-1-1947 against Mohanlal in the Court of the Third Magistrate, Indore City. On the same day both Hastimal and Chhotelal applied to the Court for grant of permission to compound the case on the grounds that the accused Mohanlal had agreed to return the property. It was mentioned in Hastimal's application that a composition would save the intimate relations which, prevailed between him and the accused. The Magistrate granted permission to compound the offence. The composition had the effect of an acquittal in respect of the offence under S. 420, I.P.C. Both of them then applied to the Magistrate for return of the property to them. The Magistrate without taking security, passed an order for delivery. The delivery of the ornaments was made to Hastimal and Chhotelal separately. 3. A month and a half after the delivery of the property, the two non-applicants, the petitioners Ramchandra and Motilal made an application, stating therein that the property had been pledged with them, and it was from their possession that the ornaments were seized by the Police, and without hearing them in the matter the property had been delivered to the non-applicants. They prayed that the ornaments should be handed over to them. This application was rejected by the learned Magistrate and by the Sessions Judge. So both of them came to the High Court in revision. Justice Sanghi who heard these revisions held that the order passed by the Magistrate was wrong, and passed the following order : "I annul the orders passed by the Third Magistrate, Indore City, in Criminal Cases Nos. So both of them came to the High Court in revision. Justice Sanghi who heard these revisions held that the order passed by the Magistrate was wrong, and passed the following order : "I annul the orders passed by the Third Magistrate, Indore City, in Criminal Cases Nos. 1173 and 1174 of 1947 whereby jewellery held by the Court was delivered to Hastimal and Chhotelal and under S. 483, Criminal P.C. I make the further order that the two persons should restore the property delivered to the Third Magistrate Indore City. On restitution, the properties shall be delivered to the applicants Ramchandra and Motilal, such articles as were taken by the Police from them." 4. In accordance with the Order of the High Court, the learned Magistrate issued orders, both to Hastimal and Chhotelal asking them to deliver the property to the Court. Both of them replied that the property was not with them and they were unable to produce it. Hastimal also added that sines no condition was imposed when the property was delivered to him he did not keep the property with him. He did not mention as to what had been done to the property. On 28-1-1950 Mr. Ramsingh the then Magistrate passed an order that Chhotelal should deposit the price of the property in Court and the petitioners Ramchandra and Motilal should furnish accounts as to the value of ornaments pledged with them, as there was no mention in the file of the property given to Hastimal. It was mentioned in the order that after hearing objections he would decide as to what the price of ornaments would be. It appears that the Magistrate was then transferred and Mr. M.P. Bhatnagar took over charge on 9-3-1950. The non-applicant Hastimal made applications to the effect that the price of the ornaments can be settled only by the Civil Court and Mr. Bhatnagar upheld this objection and directed the two petitioners i.e., the pledgees of ornaments to seek relief in a civil Court. This judgment was upheld by the Sessions Court and therefore the petitioners have come in revision to this Court. 5. Now, it is true that the Magistrate was bound to order that the property be given to the person who is entitled to its possession. This judgment was upheld by the Sessions Court and therefore the petitioners have come in revision to this Court. 5. Now, it is true that the Magistrate was bound to order that the property be given to the person who is entitled to its possession. If the version of the complainants was correct that the property was taken by Mohanlal on the pretext of showing it to Maharaja Tukojirao and that it was subsequently pledged to the petitioners in this case, then the non-applicants Hastimal and Chhotelal were certainly entitled to the possession of the ornaments. Of course it seems to be unjust to the petitioners that without hearing them, they should be deprived of the possession to which they were entitled and that they should be placed in such a position that they must themselves institute the Civil proceedings or else suffer the lose of the money. If the question of right to possession of ornaments had been between the complainant and the accused only, then the order of the Magistrate would have been correct, but here it was one between the complainant and a third person and therefore an order for the restoration of the property to one party should not have been made without first giving the petitioners an opportunity of being heard. It was on this ground that the late Sanghi, J. annulled the order of the Magistrate. But with great respect, I must say that the order passed on 16-9-1948 by Sanghi, J. was not at all clear on the point as to what ought to be done if the property was not in possession of the non-applicants. There is no doubt that the Court has, under S. 517 or 520 (as the case may be) power to order production of such property as may be capable of production or the production of the money equivalent of such property as may be incapable of production : 'Pigot v. Ali Mahommed Mandal AIR 1921 Cal 30 (SB) (A); 'Nagendra Nath v. Emperor', AIR 1934 Cal 454 (B) and 'Shamsundar v. Teja Singh', AIR 1935 Pesh 98 (C). The view taken in 'Bishambhar Rai v. State', AIR 1953 All 199 (D), that the 'sine qua non' of an order under S. 517, Criminal P.C. is the existence of the property either in the custody of the Court or in the possession of any party to the litigation amenable to the jurisdiction of the Court and that, if the property has been disposed of and is not available to the Court and if the money value is not in the custody of the Court no order could be passed under S. 517 does not appear to be sound. With great respect I must say that this opinion conflicts with the explanation added to S. 517 which runs as follows :- "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 any thing acquired by such conviction or exchange, whether immediately or otherwise." I, therefore, respectfully agree with the opinion of Chandra Reddy, J. in 'Korupulu Appallanaidu v. Vakaramamurthy', (S) AIR 1955 Andhra 45 (E)', that it is manifest that a Court has got power to make an order under S. 517 not only in respect of the property either in Court or in possession of the parties concerned, but in respect of the money equivalent thereof, when it is sold. 6. The difficulty however experienced by me in this case is, that Sanghi, J.'s order was silent as to what should be done if the ornaments were not produced in, the Court. He could have passed an order for production of money equivalent of ornaments if they had become incapable of production. This he did not do. If the High Court's order was silent on the point, the Magistrate had no power to direct an inquiry about the price of the ornaments. He ought to have considered that the order of delivery of ornaments to the Court was passed by the High Court and not by the trial Magistrate. This he did not do. If the High Court's order was silent on the point, the Magistrate had no power to direct an inquiry about the price of the ornaments. He ought to have considered that the order of delivery of ornaments to the Court was passed by the High Court and not by the trial Magistrate. So the only course left open was to refer the case to the High Court for orders under S. 561-A which confers on the High Court the jurisdiction to make such order as it thinks fit for enforcing the direction issued by it and to avoid the abuse of the process of the court. 7. It was also not proper on the part of Mr. Bhatnagar to review the order of his predecessor. Certain arguments were addressed on the point before me as to whether the order of Mr. Ramsingh was a judgment within the meaning of S. 369. Mr. Bharucha, learned counsel for the petitioners contended that it was a judgment within the meaning of S. 369, and, in his support, cited In re, Harilal Buch', 22 Bom 949 (F), where it has been observed that it is true that S. 369 only refers in express terms to 'judgments' under Chap. 26, but it is clear that the principle laid down therein applies to final orders which are in the nature of a judgment. In 'State v. Kalu', AIR 1952 Madh-B 81 (FB) (G), at p. 90 I followed the views of his Lordship Sir Sulaiman, expressed in 'Dr. Hori Ram. Singh v. Emperor', AIR 1939 FC 43 (H) where the entire Indian and English case law bearing on the interpretation of the word 'judgment' had been reviewed and the conclusion arrived at was that 'judgment' in the Code of Criminal Procedure means only a judgment of conviction or acquittal and it will not include any interlocutory order. This will also be obvious from a perusal of S. 367 which lays down what the contents of a judgment ought to be. This will also be obvious from a perusal of S. 367 which lays down what the contents of a judgment ought to be. So my view in the matter is, that though the order passed about the delivery of the property may be a final order concerning the property against which an offence is alleged to have been committed, still S. 369 would not, in terms, apply to such orders, though the principle on which the Section is based should be applied to such orders. It follows that Mr. Bhatnagar's order though not, illegal, was nonetheless improper. A perusal of certain rulings cited in note 2 to S. 369 at page 2033 in Chitaley's Commentary on the Criminal Procedure Code, 3rd Edition, also supports me in this view. 8. Now, if I set aside the order of the Court below, the question will be, whether it will be proper for me to pass any order concerning the money equivalent of the property. It is obvious that Sanghi, J. refrained from passing any such order. The story that the complainants had pawned their ornaments to the petitioners through the accused, appears to be ridiculous and must be dismissed forthwith. Then there are certain difficulties in this matter. This is obviously a case where the offence was compounded before an inquiry or trial commenced. The permission to compound the offence was given by a competent Magistrate who had certain material (i.e., police papers) before him. It can be presumed that he came to the conclusion that the ornaments belonged to the complainants and were wrongly pawned to the petitioners. In my opinion S. 517, Criminal P.C. has no application to the present case. The said Section opens with, the words :- "When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal etc." An inquiry and a trial must be commenced before they are concluded. If there has been no commencement, in my opinion, there can be no conclusion of the trial or inquiry, and, therefore, the provisions of S. 517 will not be attracted. So I am of opinion that, now, either the case should be decided according to the provisions of S. 523 or on general principles. If there has been no commencement, in my opinion, there can be no conclusion of the trial or inquiry, and, therefore, the provisions of S. 517 will not be attracted. So I am of opinion that, now, either the case should be decided according to the provisions of S. 523 or on general principles. Section 523 provides for an inquiry by the Magistrate only in the case where the person entitled to possession is unknown. No inquiry by the Magistrate is necessary under S. 523(2) if the person entitled to possession is known. 'Asi v. Emperor', 9 Ind Cas 634 (1) (Sind) (I), 'Hushansha Rahimsha v. Mashaksha', 12 Bom LR 232 (J) and 'Chuni Lal v. Ishar Das', AIR 1924 Lah 76 (K). So, even from the inquiry papers or the Police papers, the Magistrate could have passed an order for delivering the property to the complainants if he was of opinion that they were owners of the property. 9. On general principles it may be observed that there were only two sets of persons entitled to the possession of the property, either the owners, or, the pledgees. There is nothing in the application of the petitioners, or on record, to show that the non-applicants were not the owners of the ornaments. At least in arguments before me the complainants' ownership of the ornaments was not disputed. The fact, that the petitioners had been in possession of the ornaments for a very short time is not conclusive. They have still to show their bona fides and that could have been done if the learned Magistrate had given 'them an opportunity before ordering delivery of ornaments to the non-applicants. I do not think it will be proper now to send the case back merely for giving the petitioners an opportunity in this respect. It is obvious that, that opportunity they will get in a civil court. In fact, the petitioners' remedy seems to be against the pawnor from whom they can recover the money paid to him when the ornaments were pledged. When they have an adequate remedy in a civil, Court, when the ornaments are not forthcoming and when Sanghi, J. had refrained from passing an order for recovering the money equivalent of ornaments from the complainants, under these circumstances, I do not think it would be proper for me to interfere in these revisions. 10. The revisions are dismissed. When they have an adequate remedy in a civil, Court, when the ornaments are not forthcoming and when Sanghi, J. had refrained from passing an order for recovering the money equivalent of ornaments from the complainants, under these circumstances, I do not think it would be proper for me to interfere in these revisions. 10. The revisions are dismissed. Revisions dismissed.