This is a reference by Mudholkar J. referring the following questions for decision by a Division Bench:
(i) Whether an appeal lies under section 520 of the Code of Criminal Procedure against an order passed by a criminal Court under section 517 of the Code?
(ii) If an appeal does lie, whether in respect of an order under section 517 made while acquitting an accused person, an appeal would lie to a Court to which it would normally lie from an order of conviction or whether it would lie to the High Court?
2. It was ruled by Bose J. (as he then was) in Ibrahim v. King-Emperor; (1946 N L J 610 = 1 L R 1946 Nag. 940) that no appeal, lies against an order under section 517 of the code. The learned Judge held that section 520 of the code merely confers the Court of appeal, that is to say, the Court empowered to hear an appeal against an acquittal or conviction in the original trial, certain powers in addition to the powers which it possesses as a Court of appeal hearing the appeal against the conviction or the acquittal. Mudholkar J. has referred to a number of rulings in which, according to him, a contrary view has been taken.
3. The present case is one of acquittal under section 258 (1) of the Code of Criminal Procedure. It was a challan case and was tried by a second-class Magistrate, against whose order of disposal of the property an appeal was taken to a Magistrate, First Class, with criminal appellate powers. It may be stated that there does not appear to have been any appeal against the acquittal of the accused. The trial Magistrate gave the property involved, viz., a bullock, to Nandu, the third accused in the case. The bullock was seized by the police from the possession of Dhasada, who purported to appeal under section 520 of the code. The learned Magistrate First Class reversed the order of the disposal of property and ordered that the bullock be handed over to Dhasada. Nandu then filed the revision application out of which this reference has arisen.
4. Many cases have been decided on the interpretation of section 520 of the Code of Criminal Procedure. Some of them have been referred to in the order of reference. The first question to be considered is whether an appeal lies agent an order passed, under section 517 of the code. An appeal is a creature of statute. The fight to take an appeal has to be specifically conferred showing clearly that such a right has been conferred and the Court to which the appeal can be taken. An appeal is not to be implied. This proposition is so well engrained that authority in support is hardly necessary. Chapter XXXI of the Code of Criminal Procedure deals with appeals, references and revisions. Section 404 lays down:
"No appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code or by any other law for the time being in force."
It must therefore be seen whether the Code gives a light of appeal against an order under section 517 in specific -words or not. No doubt, there are provisions in the Code outside Chapter XXXI where a right of appeal has been conferred, e. g. section 524 (2) and section 476-B. In these sections not only is the Tight of appeal clearly indicated but the forum, to which, the appeal can be taken is also indicated. Section 524 (2) is contained in Chapter XLIII dealing with disposal of property, and the second sub-section clearly shows that a right of appeal has been granted. Section 520, on the other hand, is merely an enabling section giving to the Courts of appeal, confirmation, reference or revision a power to modify, alter or annul the orders made by Courts subordinate to them, in respect of property dealt with under section 517. The section reads as follows:
"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."
This power may be exercised by the Courts indicated either during the course of the hearing of an appeal, confirmation, reference or revision or the power may also be used even though no appeal, confirmation, reference or revision may be pending. In other words, the power granted is a power to control the action of the subordinate Court disposing of the property after the termination of a criminal case. There are no words here conferring a right of appeal on anybody, though the superior Court can be moved to intervene where the order is against any person. It is not necessary that it should be by way of an appeal; it can be by way of a mere petition. Of course, the forum will have to be chosen in accordance with the hierarchy of Courts established under the Criminal Procedure Code. A difference of opinion exists whether the superior Court must be chosen with reference to the actual decision or with reference to the Court which tried the case. It has been held in many cases and this is the better view-that it must be chosen having regard to the subordination of Courts according to the Code of Criminal Procedure. That, however, is not the matter on which we need express our final opinion, because the first question does not involve any such consideration. It only requires us to answer whether an appeal against an order under section 517 of the Code of Criminal Procedure lies or not.
5. As early as Saon Gond v. Sheonandanlal (14 C P L R 60) Ismay, J. C., held that an appeal lay to the Sessions Judge under section 520 of the code. In Emperor v. Husain Shah (17 C P L R 107) Stanyon, A. J. C., however, expressed a contrary view. The learned Additional Judicial Commissioner was of the opinion that there was PJ investing of appellate powers but only a power to control the orders of subordinate Courts. He also stated that orders under section 517 were in the nature of executive orders and did not involve any determination of rights. The same view, though on slightly different reasoning appealed to Bose J. (as he then was). The learned Judge based himself on Srinivasamoorthi v.NarsimhuluNaidu (I L R 50 Mad. 916) and Kanshiram v. Crown (I L R 4 Lah. 449). In the first case Curgenven J. held that the right was not a right of appeal. It may be pointed, out that the same view has been taken in In re Sakkarai Kannu Pillai (A I R 1954 Mad. 771) and Assistant Collector v. Krishna (A I R 1956 Mad. 42). In Inas Rodrigues v. Santhan Souza (A I R 1948 Mad. 114) Chandrasekhara Aiyer J. (as he then was) held that an appeal can be taken, but this was because of the practice of the Madras High Court which he did not wish to change. He referred also to Maria Pillai v. Ramanathan Chettiar (1928 M W N 557) where it was held that an appeal lies. An examination, however,, of the Full Bench case shows that at least two of the Judges who composed the Full Bench stated that their view was that no appeal lay. They, however, did not wish to interfere with the practice of the Court which, had come to recognize such appeals and therefore the appeal wag allowed to be entertained. The other cases of the Madras High Court do not clearly deal with this part of the case.
6. In Calcutta, the point that section 520 gives a right of appeal was not considered. In Empress v. Joggessur Mochi (I L R 3 Cal. 379) Ainslie J., with whom McDonell J. agreed, held that it is a power given to a Court of appeal but not necessarily in an appeal against the case. It was held that the power might affect strangers. Jn Banuruddin Biswas v. Gani Mia (40 C W N 287) Guha and Bartley JJ. did not consider this question. They only decided that the power is given to the Court to which appeals ordinarily lie from the subordinate Court, and that it was not necessary to move only the Court to which an appeal against the substantive decision in the case would lie. In Shabhapati Dobey v. Ramkishan Kumar (I L R 62 Cal. 861) this point was not considered at all.
7. In Lahore it was held in Kanshi Ram v. The Crown (I L R 4 Lah. 449) that there was no such light of appeal. No doubt, in Sardara v. Buta (AIR 1950 Lah. 148) Rahman J. did not take exception to the appeal which had been filed in the Court below, but the point was not really before him.
8. The Rangoon cases do not consider the proposition in the present form. "They decide only whether the appeal lies to the Court of Session or to the District Magistrate in cases tried by a First-Class Magistrate. It is, therefore, needless to defer to them.
9. In Bombay there is no decision directly in point so far as the question we are considering is concerned. In Walchand v. Hari Anant (I L R 56 Bom. 369 (F B)=A I R 1932 Bom. 534) the only point decided was that the appellate Court need not be the Court which hears the appeal from the main decision and that the Sessions Jud.ge, if moved, can make the order himself and need not make a reference to the High Court. The reasoning seems ±o indicate that the proviso is a self-contained one and the order can be made by the superior Court in its supervisory capacity created by section 520 of the Code of Criminal Procedure.
10. There is a decision of the Punjab High Court, namely, Bhaga' Ram v. Emperor (12 Cri, L J 400) in Which Kenington J. considered whether an appeal lies or not. He, however, expressed no clear opinion on the point. In Bir Bikram Kishore v. Emperor (41 C W N 512) Jack J. held that an appeal lies, relying upon two cases which not support the point.
11. On the whole, we think that the concurrence of opinion on this point is that section 520 of the Code of Criminal Procedure does not confer a right of appeal but is only an enabling section creating a supervisory power in Courts of appeal, confirmation, reference or revision. These Courts can pass the order in the main case, or if no appeal has been filed against the main case, can be moved to pass such order as they think fit in respect of the property involved in the criminal case. It may be pointed tut that the subordination of Courts according to the better view is to be taken into account in determining the forum for the exercise of such supervisory powers. It is not necessary that the Court of appeal must every time be the Court of appeal to which an appeal against the main decision can be taken.
12. Our answer, therefore, to the first question is in the negative.
13. The second question as framed depends upon the first question being answered in the affirmative, and need not be answered. The papers shall now be returned to the learned single Judge.
Reference answered in the negative.