P (PLP)

S. 520‑Substan tive case not before Court in appeal or revision‑Court may interfere with order passed under section 517 by trial Court. A plain reading of section 520, Criminal Procedure Code, would involve no limitation to the competency of a Court, to which ordinarily an appeal or a revision would lie, to interfere with an order passed under section 517 by the trial Court even without tile substantive case having come before the Court, in appeal or revision. (c) Criminal Procedure Code (V of 1898), S. 520‑Property not proved to be subject‑matter of offence should be restored to person from whom it had been taken. The ordinary principle is that, if property is not proved to be the subject‑matter of an offence, it should be restored to the person from whom it had been taken. Muhammad Nadir for Petitioner. Shabir Ahmad. Advocate‑General for Crown. A. R. Niazi, for Respondent. Buta was prosecuted under section 379, Indian Penal Code, in the Court of Sheikh Muhammad Tufail, Magistrate 1st Class; Jhelum. The learned Magistrate gave the benefit of the doubt to the accused and acquitted him of the charge. The bullock alleged to have been stolen in this case was order ed by the learned Magistrate to be given t9 the complainant Sardara and the accused was left to his remedy in the Civil Court, if he felt aggrieved. On appeal, the learned Sessions Judge, Jhelum, reversed that order under section 520 of the Cri minal Procedure Code and directed that the bullock should be returned to Buta, Sardara being left to his civil remedy. On behalf of Sardara a revision petition has been filed in this The first contention raised by the Learned Counsel for the petitioner is that the learned Sessions judge was not competent to entertain an appeal against the order passed by the learned trial Magistrate in respect of the disposal of the property involved in the case. He argued that section 520, Criminal Procedure Code, merely gave the right to a Court which was seized of an appeal or a revision petition in the case, to pass such orders as may be called for, pending disposal of the appeal or revision According to his view, apart from such appeal or revision, there was no jurisdiction in a Court to interfere with the order passed under section 517 of the Criminal Procedure Code. In support of his position, learned Counsel relied upon Ghulam Ali v. Emperor (A. I. R. 1945 Lah. 47). In that case, Blacker, J., observed to the effect that the Sessions judge in such cases could only substitute his own order for that passed by the trial Court, if the substantive case comes before him as a Court of Appeal or revision. In other cases; the learned judge remarked, he could only report the matter to the High Court for revision. It is to be noted, however, that the case before Blacker, J., was held to be one under section 523 of the Criminal Procedure Code and therefore, the observations, quoted above were in the nature of obiter dicta. A plain reading of section 520, Criminal Pro cedure Code, would involve no such limitation to the compe tency of a Court, to which ordinarily an appeal or a revision would lie, to interfere with an order passed under section 517 by the trial Court even without the substantive case laving come before the Court, in appeal or revision. If the view contended for by the learned Counsel were to prevail, it would mean that the only object of having section 520, Criminal Pro cedure Code, on the statute book was to give authority to the appellate or revisional Court to pass incidental orders refer ence to section 523 and 539 of the Criminal Procedure Code is enough to show that this contention is devoid of force. Such incidental powers ate already vested by these sections in appel late and revisional Courts. Moreover, there is ample autho rity for the view that the words "Court of Appeal" occurring in section 520 of the Criminal Procedure Code are got necessa rily limited to a Court before which an appeal is pending. Refer ence may be made inter alia to Embress of India v. Nilambar Babu (I. L. R. (1873) 2 Allahabad 276), Queen Empress v. Ahmad (I. L. R. (1886), 9 Mad. 448), Empress v. Joggessur (I. L R. (1878) 3 Cal. 379), U Po Hla v. go Po Shein (I. L. R (1929) 7 Rang. 345 F. B ), Walchand Jesraj Marwari v. Hari Anant Joshi (1. L. R. (1932) 56 Born. 369 F. B.). Banur‑ud‑Din Biswas v. Gani Mia Sawadagar (A. I. R. 1936 Cal. 21 D. B) and. Bhagat Ram v. The Crown. (12 P. L R, (1911) 961. I have, therefore, no hesitation in holding that the learned Sessions judge was com petent, being the authority to which an appeal would have ordinarily been presented in the case, to interfere with the order passed by the trial Court in this case, under section 520 Crimi nal Procedure Code. On the merits, I am not disposed to disturb the order passed by the learned Sessions Judge The bullock in question was admittedly taken from the possession of Buta and the ordinary principle is that, if property in such a case is not proved to be the subject matter of an offence, it should be restored to the person from whom it had been taken. I do not see any strong ground why a departure should be made from this principle in the present case. I, therefore, dismiss the revision petition. K. M. A. Revision dismissed.