Full Judgment
Arnold White, C.J.
1. In these cases the second accused and a man with whom she is said to have eloped were charged with theft of certain jewels. The case for the prosecution was that the jewels belonged to the mother of the second accused. The case for the second accused apparently was that the jewels belonged to herself. As to that the Magistrate has held that there was no evidence to show that the second accused was the exclusive owner of the jewels or was in exclusive possession thereof. He further held that even on the assumption that she had contributed from her earnings towards their value, the joint control over and possession of the jewels were in the mother as the manager of the undivided family of which the second accused was a member.
2. The second accused was discharged on the charge of theft. The question then arose as to who was entitled to an order for the possession of these jewels. The order which the Magistrate made was that the jewels in question should be given over to the mother and the daughter on their joint receipt. There were appeals from this order and the view taken by the Sessions Judge was that in every probability part of the property in question was joint family property and part was the self-acquired property of the second accused. In these circumstances he dismissed the appeals.
3. Now, there are two petitions before me, one by the mother who says an order ought to have been made for the delivery of the jewels to her and the other by the daughter who says the order ought to have been made for the jewels to be delivered over to her.
4. It is not contended, and it could not be contended, on behalf of the daughter that she is entitled as of right to the order for which she asks solely upon the ground that in respect of the charge of theft which was preferred against her with regard to these jewels, an order of discharge was made. There can be no question that, under Section 517, Criminal Procedure Code, even when a party is charged with theft and that charge is dismissed or the party is discharged, an order can be made for the delivery of the subject-matter of the alleged theft to some party other than the party in whose possession the property was found at the date of the alleged theft. In support of this proposition, I need only refer to the decision of this Court in Criminal Revision Case No. 477 of 1905. That being so, there was jurisdiction under the section for making an order in favour of the daughter or in favour of the mother or to make it in the form in which it was made in this case, viz., in favour of both.
5. Now the question is: Is the order of the Magistrate right?
6. I have been referred to the case of Chalakonda Alasami v. Chalakonda Ratnachalam 2 M.H.C.R. 56, which is referred to by the Magistrate and the Sessions Judge. It seems to me, however, it does not support the contention preferred on behalf of the mother that she is entitled to an order in her favour for delivery of all the jewels, because in that case it was held that the jewels were joint family property and it was on the basis of that finding that the order in favour of the party who claimed the jewels was made. Here we have, though not exactly a finding, an expression of opinion by the learned Judge that part of the property was joint and part was self-acquired. Therefore, it seems to me the Chalakonda Alasami v. Chalakonda Ratnachalam case 2 M.H.C.R. 56 does not help the mother, the expression of opinion given by the learned Judge that part of the property was the self-acquisition of the daughter and part was joint family property, I think he had jurisdiction to make the order which he made under Section 517, Criminal Procedure Code. I am not prepared to say that that order is wrong. Consequently, both the petitions--by the mother, (No. 483) and the petition by the daughter (No. 622) will be dismissed.