ORDER
1. This is an application to revise the order of the District Magistrate of Chittoor concerning the 'disposal of certain money and other articles seized by the Police in connection with a complaint of theft preferred by the petitioner against one Venkateswara Aiyar. The seizure was made in consequence of the petitioner's statement to the Police that he saw the accused running away from his house along with another person. A preliminary investigation was held by the Inspector of Police who came to the conclusion that the case was a false one and that the articles seized were probably foisted by the complainant himself or by his men into the accused's house where they were found by the Police. The complaint against the accused was dismissed by the 2nd class Magistrate of Gudiyatham under Section 203 of the Code of Criminal Procedure without notice to the accused. He directed under Section 517 of the Criminal Procedure Code that the articles seized by the Police should be forfeited to Government holding that they were used for concocting a false case against the accused. The District Magistrate to whom an application was made to revise the Sub Magistrate's order refused to direct any further enquiry to be made into the complaint and also concurred with him in the order passed with respect to the property seized. It is argued in this Court that the Magistrate had no power in this case to order the property to be forfeited to Government. The Magistrate appears to have acted wrongly in passing his order under Section 517 of the Criminal Procedure Code, as that section applies only when an inquiry or a trial in a Criminal Court is concluded. As the complaint in this case was dismissed under Section 203 it cannot be said that there was any inquiry or trial in the Magistrate's Court. Section 204 of the Code of Criminal Procedure in Chapter XVII which is headed-' of the commencement of proceedings before Magistrates,' enacts that if in the opinion of the Magistrate there is sufficient ground for proceeding, that is, if he does not dismiss the complaint under Section 203, he is then to issue a summons or warrant to the accused. The inquiry or trial in the Magistrate's Court had not, therefore, commenced in this case. But, although the Magistrate had no jurisdiction to pass the order under Section 517, he had power under Section 523 to pass an order regarding the disposal of property seized by a Police officer which was ' alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence.' The petitioner alleged that the property in question had been stolen. According to the view of the Police Inspector and the Magistrate it was 'found under circumstances which create suspicion of the commission of an offence.' They both came to conclusion that it must have been placed there by the complainant himself with a view to institute a false complaint of theft against the accused, or in other words, for fabricating false evidence of theft against him. The question for decision is-Had the Magistrate, who according to the section had power to pass such order as he thought fit respecting the disposal of the property, jurisdiction, in the exercise of that power, to direct the property to be forfeited to Government? According to the language of the section the Magistrate could make such order as he thought fit either respecting the disposal of the property or its delivery to the person entitled to its possession or, if such person could not be ascertained, respecting the custody and production of the property. According to Clause 2 of the section, 'if the person entitled to possession cannot be ascertained the Magistrate may make a proclamation requiring any person claiming it to establish his claim.' If no one succeeds in doing so and if the person in whose possession the property is found is unable to show that it was legally acquired by him the property is to be at the disposal of Government (Section 524). It is argued that it is only if the person entitled to possession cannot be ascertained and no one establishes his title to possession after notice given by the Magistrate, an order can be passed that the property should be at the disposal of Government. This contention cannot be accepted. Clause I of Section 523 gives the Magistrate power either to deliver the property to the person entitled to its possession, or to pass such order as he deems fit respecting its disposal. If he adopts the first alternative, he has to find out the person entitled to possession and, if no one succeeds in establishing his title to possession, the property would be at the disposal of Government. If he adopts the second alternative, the section does not specifically state what the nature of the order regarding the disposal of property should be. If an order that the property should be at the disposal of Government would be proper in the circumstances of the case, there is nothing in the section which prevents him from passing such an order; whether such an order would be proper or not must be decided by general principles of law and the light derived from the other sections of the Procedure Code. Where any inquiry or trial has been concluded, the court has power under Section 517 to make such order as it thinks fit for the disposal of any property or document produced before it or in its custody regarding which any offence appears to have been committed, or which has been used for the commission of any offence. Here again the nature of the order to be passed for the disposal is not specified. If the property has been used for the commission of an offence, it is impossible to suppose that the Legislature intended that it should be returned to the owner who would be the person guilty of the offence. If the property is the subject of the offence as in cases of theft, misappropriation, receipt of stolen property etc., the proper order of course would be to direct it to be returned to the person from whom it was stolen or to the owner whose property was appropriated. There are some express provisions of law directing property used for the commission of an offence to be destroyed or forfeited. Section 263 Clause (2) of the Indian Penal Code provides that any stamp, die, plate instrument or materials in the possession of any person for making any fictitious stamp may be seized and shall be forfeited. Section 126 enacts that property used or intended to be used in committing depredation or acquired by committing depredation on the territories of any person in alliance or at peace with the king, shall be liable to forfeiture. Section 127 lays down that property received by any person knowing the same to have been taken in the commission of an offence under Section 125 shall be liable to forfeiture. There are other provisions of a similar character in special statutes.
See Arms Act. Section 24Abkari. ' ' 15Explosives. ' ' 10Madras Forest. ' ' 41Indian Forest. ' ' 52 and 84Merchandise Marks. ' ' 9Metal Tokens ' ' 4Ancient Monuments. ' ' 17Opium. ' ' 12Petroleum. ' ' 17Poisons. ' ' 7Indian Salt. ' ' 12Madras Salt. ' ' 79Madras Town Nuisance ' ' 3Excise '(Act XII of 1896): 45, 46, 48 & 51.
2. Section 521 of the Code of Criminal Procedure provides that on a conviction under Sections 292, 293, 501 and 502 of the Indian Penal Code the Court may order the destruction of all the copies of the thing in respect of which the conviction was and which are in the custody of the Court or remain in the possession or power of the person convicted. It also lays down that on a conviction under Sections 272, 273, 274 and 275 of the Indian Penal Code, the court may order the food, drink or drug or medical preparation in respect of which the conviction was had to be destroyed. These sections show that with respect to property used in the commission of an offence the order under Section 517 may be according to the nature of the case either for the destruction of the property or for its forfeiture. A similar interpretation should be placed on Section 523 with respect to property found under circumstances which create suspicion of the commission of any offence. If the offence be one relating to property the proper order would of course be to return it to the owner or person in possession. But this cannot be the proper order where the offence suspected is one committed by the person who is the owner or possessor of the property and who has used it for the commission of the offence. The right order in such a case must be to direct the destruction or forfeiture of the property according to its nature. Section 523 contains a general provision applicable to all cases where there has been no inquiry or trial. If therefore there are grounds for suspecting that the property seized was used for fabricating false evidence against the accused in the case, the Magistrate must be held to have jurisdiction to pass an order directing its forfeiture. This, is a punishment which the law allows to be inflicted in addition to its ordinary punishments prescribed in the Indian Penal Code. Forfeiture of property belonging to an offender or of the income of his property for a period, forfeiture of property used in or obtained by committing a crime, are all provided for in the Indian Penal Code in specific cases. In addition to this, the Criminal Procedure Code has under Sections 517 and 523 given a general power to the court to direct the destruction or forfeiture of any property used for the commission of any offence.
3. The Court would no doubt be slow to pass an order for forfeiture in cases of mere suspicion under Section 523, but it would have less hesitation in refusing to restore property to the owner who is suspected to have used it for the commission of an offence. The power to order restoration is discretionary and the court is not bound to exercise it. See Vilmont v. Bentley (1887) 18 Q.B.D. 322 . According to Bice v. Jarvis (1885) 49 J.P. 264 he could not maintain an action for its recovery without proving that it was withheld wrongfully.
4. An examination of the history of the legislation on the subject will show that the power of the Court in respect of orders to be made regarding property coming to its custody has been gradually widened. In Act X of 1872 the court was not expressly given powers to pass orders respecting property 'used for the commission of an offence.' Under Section 415 of Act X of 1872 corresponding to Section 528 the provision was that the magistrate shall pass an order respecting the custody and production of such property as he thinks proper, and there was no provision giving him a general power of disposal of the property. The decision of the courts on this question has not been uniform. In Madras High Court Proceedings dated 13th February 1874 No. 329 reported in Weir's Criminal Rulings Vol II p. 665, it was held that under Section 418 Criminal Procedure Code of 1872 a Magistrate who convicted a public servant of receiving an illegal gratification under Section 161 of the Indian Penal Code had no power to direct the forfeiture of a sum of Rs 20/- which was given as a bribe. But Section 418 of the Code of 1872 has been enlarged in Section 517 by the addition of the words 'or which has been used for the commission of any offence' and the case is therefore not an authority under the present Code. In Queen Empress v. Ahmed I.L.R. (1886) M. 448 a case somewhat similar to the present one, Brandt J. was apparently of opinion that property used for fabricating false evidence might be disposed of by the court. But the learned Judge abstained from deciding the point and refused in the exercise of his revisional power to interfere with an order directing such property to be returned to the complainant who used it to fabricate false evidence. In Criminal Appeal No. 405 of 1887, P. Kamaraju (1888) 1 Wei Crl. 534 Collins C. J. and Muthusami Aiyar J, directed the confiscation and forfeiture of money used by the accused in the case to bribe a public servant as being property used for the commission of an offence. In Ponnusami Pillay In re (1909) 19 M.L.J. 254 White C.J. and Miller J. held that a bottle of brandy which was to have been smuggled by the accused who were convicted under Sections 55(a) and 58 of the Madras Abkari Act could not be forfeited under Section 517 of the Code of Criminal Procedure. The learned Judges confirmed the order of confiscation under the provisions of the Abkari Act. Possibly they thought that as such a case was specifically provided for by the Abkari Act, Section 517 of the Procedure Code was not applicable. In Jarif Ghazi v. Emperor (1904) 8 C.W.N. 887 Pratt and Handley JJ. held that a boat in which the accused escaped after committing an offence could not be confiscated on the ground that it could not be regarded as the property used for the commission of the offence. But the learned Judges were of opinion that latis or other instruments used for committing an offence could be dealt with under Section 517 of the present Code of Criminal Procedure. In Lakshmi Narayan Dutt v. Inspector Megon (1905) 9 C.W.N. 597 the accused was convicted under Section 182 of the Indian Penal Code for having given false information of the theft of some ornaments. The ornaments were found upon search in the accused's own house. Henderson and Geidt JJ. held that no order for forfeiture of the jewels could be passed under Section 517. There can be no doubt that the offence under Section 182 was not one committed in respect of jewels nor were they used for committing the offence and the order in the particular case was entirely unexceptionable. But the observation of the learned judges seem to show that they thought that an order of forfeiture could never be passed under Section 517. They observe 'In our opinion Section 517 was never intended to authorise the disposal of property in the manner directed in this case. The object of the section is to enable the Magistrate to direct the property to be given to some person to whom it appears to belong or to allow it to continue in the possession of the person in whose possession it was found or to make some order of that character.' In Abhinash Chandra Bhatta Gharjee v. Emperor I.L.R. (1907) C. 986, the dirqct question for decision was whether a printing press used for the printing of seditious matter could be dealt with under Section 517, and the actual decision proceeded on the ground that as the offence was one of publication of seditious matter the press could not be said to have been used in the commission of the offence. The learned judges however gave expression to the view that forfeiture of property could be ordered only in cases provided for in the Indian Penal Code. They observe that the last words of Clause 1 of Section 517 'which has been used for the commission of any offence' may give some scope to the contention that forfeiture may be ordered by the court but, they said 'the first part of the section appears to us, however, to have reference to cases of offences relating to the property or relating to documents e.g., where the court directs, as in cases of theft or criminal misappropriation or offences of similar description, that the property which is stolen or misappropriated be restored to its owner.' The Magistrate has under Section 517 power to give directions for the disposal of property or instruments produced in court and direct their forfeiture. The ground on which the learned judges proceeded evidently was that the disposal of property referred to in Section 517 must be of the same kind both in regard to property regarding which an offence is committed and property used for the commission of an offence. There is no ground for this assumption. 'Disposal' is the comprehensive word which would include forfeiture. The nature of the disposal might vary according as the property is one regarding which an offence has been committed or which has been used for the commission of an offence. On principle the view taken by this Court in I Weir's Criminal Rulings 534 and apparently Empress v. Ahmed I.L.R. (1886) M. 448 and by the Calcutta High Court in Jarif Gazi v. Emperor (1904) 8 C.W.N. 887, appears to be sounder than the contrary view in the other cases referred to above. We are of opinion therefore that the order passed by the Magistrate was entirely within his jurisdiction. The circumstances of the case afford good grounds for the Sub-Magistrate's refusal to order restitution of the property in question to the petitioner. We decline to interfere in revision with the order of the District Magistrate refusing to set it aside.