1. This is an application under Section 520 of the Criminal Procedure Code impugning the correctness of an order passed under Section 517 of the same code by the Sessions Judge of Krishna in Criminal Appeal No. 29 of 1955.

2. There was a charge-sheet filed against the petitioner and another for an offence punishable under Section 420 I.P.C Currency notes of the value of Rs. 4,200/- were seized from them by the Sub Inspector of Police, Vijayawada on 26-6-1954. The prosecution case is that the accused pretended that they were, by some mysterious process, able to produce duplicates of any kind of currency notes given to them and that on that representation they received from P.Ws 1, 2 and 3 the currency notes in question. The accused were convicted by the trial Magistrate, who passed an order that the currency notes should be returned to those P.Ws On appeal however, the learned Sessions Judge held that on the material placed before the Court, it could not be said that the prosecution had proved the case beyond reasonable doubt. He therefore acquitted the petitioner and his co-accused. But in doing so, he said that the order of the trial Magistrate that these currency notes should be returned to P.Ws 1 to 3 should stand. He has however given no reasons in support of this direction.

3. It is contended for the petitioner that where no offence has been proved to have been committed in respect of any property produced before the court and the accused is acquitted, the Magistrate should in the usual course direct restoration of the property to the person from whom it was seized. The discretion vested in the Magistrate by the section, it is urged, cannot be said to have been properly exercised when it is used in a case like the present, for returning the property to a person other than the party from whom it was taken.

4. The mere fact that there are grounds for suspecting that the accused though acquitted must have obtained it from somebody else, does not justify an order directing the return of the property to that person.

5. Reliance is placed in support of the proposition on the decisions reported in Srinivasamoorthi v. Narasimhulu Naidu I.L.R 50 Mad. 916., Vaiyapuri Chetty v. Sinniah Chetty 59 M.L.J 901. and M. Savudi Karuppanan Ambalam v. Guruswami Pillai I.L.R Mad. 654.. In Vaiyapuri Chetty v. Sinniah Chetty, Jackson J., after referring to some earlier rulings, puts the position thus:

“The general effect of these rulings is that the Magistrate has a discretion to decide the question of possession, but it is very rarely that discretion if properly exerecised will go beyond restoring the property to the party from whom it was taken ….

It is manifest that Criminal Courts are not expected to try civil causes. The one exception is when, in order to prevent a breach of the peace, a Magistrate decides prima facie the question of possession. But it would be an odd extension of that exception if a section were to be drafted into the Code; whenever a Magistrate is satisfied that the police have erroneously attached property where no offence has been comitted, he shall require the parties claiming possession of that property to put in their respective claims. Merely from a practical point of view, apart from principle, a provision of that sort would obviously be a direct stimulus to false charges, for parties would jump at the opportunity of settling claims of possessions so expeditiously and so cheaply.”

It may seem, therefore, that the simple rule should be that if no crime is made out the Magistrate should return the property to the party from whom it was taken. But that rule is just too simple. Suppose, to take a common example the accused person whom the Magistrate acquits, has pleaded that the property was foisted upon him, their would then be no sense in the Magistrate telling him to keep it. Other instances can no doubt be imagined, but, except in these special cases, the Magistrate should return the property to the person from whom it was taken ………

It should be returned to the person from whom it was seized unless there are special circumstances which would render such a course unjustifiable. The mere fact that two parties are quarelling about possession is not one of the special circumstances which take a case out of the general rule.”

6. This case was subsequently followed by Burn J., in M. Savudi Karuppanan Ambalam v. Guruswami Pillai. A recent decision of the Madras High Court reported in Muthiah Muthirian v. Varaperumal Muthirian A.I.R 1934 Mad. 214. states that the Criminal Court may adopt, under sec. 517 of the Criminal Procedure Code, any one of the following modes of disposal of property produced before it.

“(1) It may return the property to the person from whom it was seized and leave the dissatisfied party to his remedy in a Civil Court.

“(2) It may keep the property in its custody pending the decision of a competent Civil Court. This course may not generally be desirable and as pointed out in Mohomed Yusuf v. Krishan Mohan, (A.I.R 1938 Cal. 17) the desirable course is that the Court should in such cases deal with the matter under Sec. 523 but in no circumstances, ordinarily whether the case be under this section or under sec. 523, should an order be made for detention in Court custody or in the custody of one of the parties, conditional on a Civil suit being instituted, for this might mean detention for an indefinite period, if no such suit was brought.

(3) In cases where property is claimed by a person other than the person from whom it was taken, the Court may impose conditions on the person to whom it is delivered in order that the property or the value thereof may be forthcoming in case the rival claimant establishes a title to it: 2 Weir 667 (668) Kedarnath Dey. v. Mohamed Siddik; A.I.R 1924 Cal. 455.

(4) It may, where the property is subject to speedy and natural decay, order it to be sold and the proceeds retained in custody of the Court until a right to it is established by Civil Court:— “Chenga Reddi v. Ramaswamy Goundan A.I.R 1915 Mad. 588.”

7. With great respect to the Learned Judge who decided the case, I may state that the 2nd, 3rd and 4th modes of disposal suggested therein are not applicable to a case falling under Sec. 517 of the Criminal Procedure Code. It is true that a very early case of the Madras High Court In re Syed Mohidin Sahib having ruled that in a case under Sec. 517, “the property should ordinarily be delivered to the person by whom it has been produced and where it is produced by the Police, it should ordinarily be returned by the Police to the person out of whose possession they have taken it” added:

“If however, there exists a bona fide doubt as to the ownership and a person other than the person fromwhose possession the property is taken makes a claim for it, a Magistrate may impose conditions on the person to whom it is delivered in order that it or the value of it may be forthcoming in case the rival claimant establishes a title to it.”

8. It seems to me however that there is no authority in the Code for the imposition of any such conditions. The only case in which a condition could be imposed is that when the court acts under sub-section (4) of the Section: it can then take a bond with or without sureties from the person to whom it delivers the property under sub-section (1) engaging to restore such property to the Court if the order made under that section is modified or set aside on an appeal. Apart from the lack of any such provision in the Code, it is difficult to see how any conditions that may be imposed, pending the decision of a Civil Court, could be enforced by a Criminal Court. The suggestion made in one of the earlier Calcutta Cases, viz., Kedar Nath Dey v. Mohomed Siddik that the property may be detained in Court or in the custody of one of the parties, conditional on a civil suit being instituted also seems to me to be one not sanctioned by any of the provisions of the Code. There is nothing in the Code which enables the Magistrate to keep the property in his custody conditional on the institution of or pending a civil suit, apart from the point made in Mohommad Yusuf v. Krishna Mohan referred to in the above extract, that such an order might mean detention for an indefinite period if no such suit is brought. This latter decision of the Calcutta High Court seems to consider however that the Magistrate can proceed under Sec. 523 in cases where there are rival claimants to the property. The head note of that case is as follows:—

“In such a case, however, it will be open to the Court to deal with the matter under Sec. 523 and make an order under that section as Sec. 523 equally applies where there has been and there has not been an inquiry or trial, or where the property has or has not been produced in Court.”

9. I find it difficult to follow this reasoning. It seems to me opposed clearly to the language of the Code. Sections 517 and 523 seem to me mutually exclusive. Sec. 517 applies to a case where there has been an inquiry or trial which has been concluded, while Sec. 523 deals with property seized by the police under Sec. 51 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence. When there has been an enquiry or a trial, it seems to me that Sec. 523 cannot apply. It deals only with cases of suspicion not followed by inquiry or trial. The property so seized by the police from persons suspected of having committed an offence is to be disposed of in the manner provided by Secs. 523-525. Again, the fourth mode of disposal suggested by the above decision, i.e, retention in custody of the court until a right to it is established by a civil court seems tome to be equally beyond the jurisdiction of the Magistrate. Of course, in cases where Sec. 523 applies, the Magistrate may direct that if no person establishes his claim to such property or if the person in whose possession such property was found, is unable to show that it was legally acquired by him, such property shall be at the disposal of the State Government and may be sold under the orders of certain officers. But even so, it is only for the benefit of the true claimant because, an order directing that the property be at the dispoal of the Government is not tantamount to an order of confiscation.

10. In my view therefore, there is now no provision which enables the Magistrate to safeguard the interests of the party who may ultimately succeed in establishing his right in a civil court, in cases falling under Sec. 517 of the Criminal Procedure Code. He cannot take evidence on the question of possession or decide the right to possession. He cannot direct detention of the property in court. Nor can he direct the party to whom normally he is bound to return, to execute a bond to secure the interests of the party ultimately successful in the civil court. He can impose no conditions whatsoever. Even if he could take a bond as has been suggested in some cases, it seems to me that there is no provision for enforcing it for the benefit of the ultimately successful party.

11. In cases like the present, where it is extremely doubtful whether the petitioner and his co-accused are really entitled to possession of the currency notes, if they should be in pursuance of the normal rule, allowed to take back these notes, the persons who might really be entitled thereto may, even if they succeed in the civil court, be unable to recover the property from the petitioner. The property may, in the meanwhile, vanish into thin air. It is doubtful even if the civil Court could direct the deposit of these monies with it pending adjudication of the right to them. I think it is desirable that the Criminal Procedure Code, should make a provision applying to cases like this one, for instance, enabling a Magistrate to keep the property with him for a definite period of time pending the filing of a civil suit relating to it, and directing him to deliver the property to the Civil Court on being asked by that court, after the institution of the suit. There may alternatively be a provision placing it at the disposal of the Government, pending a suit. If very valuable moveable property is, under the general rule, returned to persons who may not be really entitled to it, serious loss may result to the true owners, because it can disappear very easily.

12. Now, coming to the circumstances of the present case, while it is true that there are grounds for suspecting that the currency notes were obtained by the accused from P.Ws 1 to 3 under the pretence that they could bring into existence an equal number of notes of the same denomination, it is imposible to act upon that suspicion and direct the delivery of these notes to the above-mentioned witnesses. Such an order, it seems to me, would be in the teeth of the normal rule recognized by a long line of decisions not only of the Madras but also of other High Courts. It is true that by the time P.Ws 1 to 3 may be able to secure any relief from the Civil Court it may be impossible to trace the notes and it may be equally impossible to secure adequate compensation for their loss from the accused, as they do not appear to have much property. But that is a difficulty, to meet which, unfortunately, there is no provision in the Code. One consolation, of course, may be that the persons who parted with the notes must be, in the nature of things particeps criminis and even if, in the circumstances, the civil court should decree their claim, there would be no room for regret that they have suffered the loss. But, there may be cases where innocent persons may have a claim and it is for the benefit of such persons that I think a statutory provision of the character such as I have suggested above is necessary. In conclusion, I hold that there is no justification, in the circumstances of the present case, for the direction given by the Sessions Judge, after acquitting the accused, that the currency notes should be returned to P.Ws 1 to 3. I have already stated that he has given no reasons. I can see no conceivable reason why there should be in this case a departure from the normal rule.

13. The order of the Sessions Judge is set aside and there will be a direction that the property be returned to the petitioner. The petition is therefore allowed.

T.A.B

14. Petition allowed.