Walchand Jasraj Marwadi Vs. Hari Anant Joshi - Court Judgment

John Beaumont, Kt., C.J.

1. This is an application in revision in respect of an order passed by the First Glass Magistrate, Bhimthadi. The applicant was the accused in certain criminal proceedings, in which he was charged with stealing some stones of the value of about Rs. 4, and he was acquitted of the charge, but notwithstanding that fact the learned Magistrate directed the stones, the subject-matter of the charge, to be handed over to the complainant. The applicant asks us to revise the order dealing with the property, and notwithstanding the trifling nature of the matter in dispute Mr. Walawalkar contends, on the authority of the decision of this Court in Khema Ruhhad, In re I.L.R. (1918) Bom. 564 : 20 Bom. L.R. 395 that only the High Court has jurisdiction in the matter.

2. The question of jurisdiction turns on the true construction of Section 520 of the Criminal Procedure Code. That section provides:-

Any Court of appeal, confirmation, reference or revision may direct any order under Section 517 Section 518 or Section 519, passed by a Court subordi nate 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.

Sections 517, 518 and 519 confer on the trial Court powers to make orders regarding property which is the subject-matter of the charge, or otherwise before it. The decision of this Court in Khema Bukhad, In re, was that the Court referred to in Section 520 was the Court to which an appeal or application for confirmation or reference or revision might be made in respect of, what I may call, the main charge, and the Court held in that case that, inasmuch as the accused had been acquitted, the only possible appeal would be by Government to the High Court, and therefore that the High Court was the only Court which could make an order under Section 520. That seems to me on the face of it a rather curious result, because it is difficult to see why the jurisdiction of the Court to make an order under Section 520 should be dependent upon the question to what Court an appeal might have been brought which in fact has not been brought. The decision in Khema Rukhad, In re, has not met with the approval of other High Courts, and the whole question has been recently considered by a full bench of the High Court of Rangoon in U. Po Hla v. Ko Po Shein I.L.R. (1929) Ran. 345 F.B., I think the decision of the High Court of Rangoon is to be preferred to the decision of this Court. It seems to me that what Section 520 means is 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 Section 517, 518 or 519. Unless Section 520 is read in that way, it is difficult to see what practical effect it can have, because there can be no doubt that under Section 423(1)(d) and Section 439 a Court hearing an appeal or revision application would have ample power to deal with any order passed with regard to property the subject-matter of the charge, or otherwise before it. It is no doubt true, as pointed out by Mr. Walawalkar, that on the view of Section 520 which we are adopting the Sessions Court will have greater powers in respect of orders relating to property than it has in respect of other orders of subordinate Courts. The Sessions Court has no general power of making orders in revision; it can only, under Section 435, inquire into matters before the subordinate Courts and if necessary refer to the High Court for orders under Section 438. But Section 520 seems to make it unnecessary for a subordinate Court of revision to adopt that course in matters within that section. 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 Section 517, 518 or 519, then, in my opinion, the Sessions Court can itself make a proper order and need not refer the matter to the High Court.

3. As the matter has come before us, and, in view of the decision in Khema Ruhhad, In re, was rightly brought before us, we will in this case deal with the matter on its merits. The atones as I have said are of small value. They were undoubtedly in the possession of the accused when the charge was preferred against him. The learned Magistrate seems to be in considerable doubt as to the person to whom the stones really belonged. The mere fact that he holds that the accused did not steal them is not conclusive evidence that they did not belong to the complainant, because the accused may have been acquitted on the ground that, although the stones belonged to the complainant, the accused had no inens rea. Prima facie, however, the title is in the last person in possession, and in this case we see no reason to depart from the rule. As that person was the petitioner the stones should be ordered to be returned to him.

4. We, therefore, make the order as prayed.

Mirza, J.

1. In Khema Rukhad, In re I.L.R. (1918) Bom. 664 : 20 Bom. L.R. 395 only two authorities were cited to the Court, viz., In re Laxman Rangu Rangari (1911) 1 L.R. 35 Bom. 253 : 13 Bom. L.R. 131 and Queen-Empress v. Ahmed I.L.R. (1886) Mad. 448 Mr. Justice Shah in referring to In reLaxman Rangu Hangari. was of opinion that certain observations made by Mr. Justice Heaton in that case were in favour of the view which the Court ultimately took of the construction to be put on Section 520 of the Criminal Procedure Code. Mr. Justice Shah has pointed out that those observations were not necessary for the decision of the case before Mr. Justice Chandavarkar and Mr. Justice Heaton. Mr. Justice Heaton construing a 520 of the Criminal Procedure Code in connection with the case before him said (p. 255):-

Where the case is one in which an appeal lies, any party aggrieved by an order as to the disposal of the property must go to the Court of appeal.

Accepting that interpretation of the section, the learned Judges in Khema Rukhad, In re, held that the proper Court which would have jurisdiction in the case before them would be the High Court as it was a case of an acquittal by a First Class Magistrate and an appeal from such acquittal would lie not to the Sessions Court but to the High Court. The case of Queen-Empress v. Ahmed, which was citedin support of the opposite view, was not accepted by the learned Judges mainly on the ground that it was the decision of a single Judge who did not have the advantage of hearing legal arguments. The attention of the Court was not called to certain other cases in which a similar contrary opinion has been expressed with regard to the interpretation of Section 520. In Empress of India v. Nilambar Babu I.L.R. (1879) All. 276 Mr. Justice Spankie has held that where there is a Court of appeal, resort should be had thereto before application is made to the High Court for the exercise of its powers of revision. Again in Empress v. Joggeaaur Moohi I.L.R. (1878) Cal. 379 Mr. Justice Ainslie has held, under the provisions of Section 419 of the Criminal Procedure Code of 1872 which section corresponds with our present Section 520, that a case like the present one can be disposed of by the Sessions Judge, and that the words 'Court of appeal' appearing in the section are not necessarily limited to a Court before which an appeal is pending. In Emperor v. Debi Ram I.L.R. (1924) All. 623 Mr. Justice Daniels followed the ruling in Khema Ruhhad, In re, but the earlier ruling of the Allahabad High Court in Empress of India v. Nilambar Babu was not cited before him. In King-Emperor v. Nga Po Chit I.L.R. (1923) Kan. 199 a divisional bench of the Rangoon High Court interpreted Section 520 contrary to the view expressed in Khema Bukhad, In re. Robinson C.J. observed that there was nothing in the section to bar the jurisdiction of a Court of revision. In Maung Mra Tun v. Ma Kra Zoe Pru I.L.R. (1928) Ran. 259 Mr. Justice Das followed the rulings in Khema Ruhhad, In re, and Emperor v. Debi Ram. The earlier case in King-Emperor v. Nga Po Chit was not cited before him. In U Po Hla v. Ko Po Shein I.L.R. (1929) Ran. 345 F. B a full bench of the Rangoon High Court has, after a review of the conflicting decisions of the various High Courts in India, come to the conclusion that KhemaRukhad, In re, is not good law and that the contrary view is correct. The weight of authority of the other High Courts is clearly in favour of our overruling KhemaRukhad, In re. I respectfully agree with my Lord the Chief Justice in the interpretation he has put on Section 520 of the Criminal Procedure Code and in the order he proposes on this application.

Murphy, J.

2. I agree and have nothing further to add.