1. This is a revision application by one Kanchanlal Somalal Choksi aggrieved by the order of the learned Additional Sessions Judge, Kaira. The (acts giving rise to this application are as follows:
2. Some stolen property was aliened to have been sold by accused Rupabhai to one Jaswantlal, who sold the same to one Kanchanlal, the present petitioner. Kanchanlal sold that property along with some of his gold ornaments for cash. Before the Police, he made a statement, that he had sold the articles which he had received for Rs. 151-4-0 along with some other ornaments and he produced Rs. 151-4-0 before the Police. The learned trial Magistrate ordered this amount to be paid to the original complainant from whose possession the ornaments had seen stolen. The petitioner then approached the Sessions court but the Sessions Court declined to interfere. Hence this revision application.
3. A preliminary objection is taken and it is contended that this revision application does not lie because the petitioner did not approach the trial Court but directly approached the Sessions Court. Section 520 Criminal Procedure Code reads as follows:
"520. Stay of order under Section 517, 518 or 519.--Any Court of appeal, confirmation, reference or revision may direct any order under
Section 517, Section 518 or Section 519 passed by a Court subordinate 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."
The expression "Any Court of appeal" has been interpreter to mean "any Court to which an appeal ordinarily would lie". The section does not use the expression "In appeal" but it merely provides that any Court of appeal can. modify, alter or annul, an order passed by the Trial Court The section does not say that it shall do so in appeal nor does it say that a person can appeal only it he has appeared at the trial Court. When the present petitioner approached the Sessions Court, it can be taken that he appealed to the Sessions Court against the order of the trial Court. There is, therefore, no merit in the preliminary objection taken.
4. As regards the order of disposal of Rs. 151-4-0, it is contended in revision that the trial Magistrate should not have done so because the properties stolen were ornaments and not cash. But the explanation to Section 517(1) reads as follows:
"Explanation-- 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 anything acquired by such conversion or exchange, whether Immediately or otherwise."
It is true that in Anant Virupax Peerant, In re, 20 Bom LR 604 : (AIR 1918 Bom 215) it has been hold that the money could not be paid over to the complainant under the provisions of Section 517 of the Criminal Procedure code since it merely represented the sum which the applicant paid to the accused as price of the gold bangles, and it could not bo treated under the explanation to the section as property with reference to which an offence had been committed. Reliance is, however, placed on Shamsundar v. Teja Singh AIR 1935 Pesh 98, Shwe Wa v. C. I. Mehta, AIR 1927 Rang 322; Ramchandra v. Hastimal Jam, AIR 1956 Madh-B 161; K. Appalanaldu v. Vakaramamurtny, (S) AIR 1955 Andhra 45 and Nagendra Nath v. Emperor, AIR 1934 Cal 454. In the Madhya Bharat and Andhra cases, the decision of the Allahabad High Court in Bisnambhar Ral v. Stato, AIR 1953 All 199, was dissented from and it was held that a Court has power to make an order under Section 517 Cr. P. C. not only in respect of the property in Court or in the possession of the parties concerned, but also in respect of the money equivalent thereof when it is sold. In the Andhra case, (S) AIR 1955 Andhra 45 it was observed as follows.
"Reading Section 517 and the Explanation to it together it is manifest that a Court has got power to make an order under Section 517 not only in respect of the property either in Court or in possession of the parties concerned, but the money equivalent thereof when it is sold, the explanation is of very wide import and enables the court to pass an order in respect of either money obtained by sale thereof or other property exchanged for the property originally in deposit or under control of the party."
In the above case, AIR 1934 Cal 454 was relied on, where it was held as follows:
"Where a party has been ordered by a criminal Court to restore certain property to another but such party has already converted the property to its own use, the Court has power to order the production of such property as may be capable of production, and the production of the money-equivalent of such property as may be incapable OT production."
Actually, in the Calcutta case no such order was passed. The observations are, therefore, obiter. In the Peshawar case it was observed as follows:
"Where Court orders restitution of certain property but such properly has been disposed of, the Court's order does not become ultra vires but it still retains the jurisdiction of passing orders about the property into which it has been converted. Hence where the property eoncerneo is ornaments, and they have been sold, Court can order payment of equivalent value,"
This Peshawar decision followed the decisions in AIR 1927 'Rang 322 and AIR 1934 Cal 454.
5. In my opinion, a Court acting under Section 517 Cr. P. C. cannot pass an order for payment of money in general such as a Criminal Court does when it passes a sentence of fine or such as the Civil Court does when it passe's a decree for payment of money. The explanation to Section 517 Cr. P. C. no doubt enlarges the meaning of the words "stolen property" but it refers to the specific property into or for which a stolen property has been converted or exchanged or any specific property acquired by such conversion or exchange. It is, however, contended that the explanation is intended to cover the money value. Sub-section (1) of Section 517 refers to the disposal by destruction, confiscation or delivery to any person entitled to the possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. The sub-section has, therefore, no reference or application to the money equivalent unless it be the money in specie into which the stolen property had been converted or for which it has been exchanged or unless the money had been acquired by such conversion or exchange. For these reasons I agree with the view taken by the Allahabad High Court in AIR 1953 All 193 (supra) and the Bombay High Court in 20 Bom LR 604 : (AIR 1918 Bom 215) (supra).
6. In the instant case, it is conceded that Rs. 151-4-0 to which the order of the learned trial Magistrate raters is not the specific money which the petitioner received. In fact, he had sold not only the stolen property but also his own property at Ahmedabad receiving the whole sale proceeds in a lump sum. The trial Magistrate was not, therefore, entitled to order that Rs. 151-4-0, which the applicant had given to the Police as the value of the stolen property which he had sold to be paid to the original complainant.
7. The petition is, therefore, allowed and the order of the trial Court directing the amount of Rs. 151-4-0 to be paid to the original complainant is set aside and the said amount is ordered to be paid to the petitioner.