P L D 1958 (W (PLP)

Jhumak Singh v. Tota Mahto and others A I R 1923 Pat. 8 dissented from. Munir Ahmad for Petitioner. Mian Mushtaq Ahmad A. A. G. for State. Sami‑ud‑Din for Respondent No.

2. Date of hearing: 16th December 1957. A. R. CHANGEZ, J.‑This is a revision petition under section 439, read with section 520, of the Code of Criminal Procedure and His directed against the order of Muhammad Yaqub Khan, Sub‑Divisional Magistrate Chakwal, dated the 10th of January 1957, whereby he has refused to restore Rs. 1,840 and a pair of gold kantas to the petitioner.

2. The material facts giving rise to this petition are as follows:‑ Ghulam Akbar petitioner was tried by Mr. Nur Muhammad, Magistrate 1st Class, Chakwal, under sections 454 and 380, P. P. C. who found him guilty under section 411, P. P. C., and sentenced‑ him to one year's rigorous imprison ment. His appeal was dismissed by the Sessions Judge Jhelum on the 21st of November 1955. He came up in revision before this Court, and I set aside his conviction and sentence and acquitted him vide my order dated the 27th of July 1956. It was held by me that the case for the prosecution was doubtful and that the currency notes of the value of Rs. 1,840 and a pair of gold kantas which had been recovered from the petitioner belonged to him. The petitioner thereafter applied to the Sub‑Divisional Magistrate, Chakwal, for restoration of the currency notes and the gold kantas. It appears that these had already been delivered to the complainant Ghulam Nabi respondent after the appeal of the petitioner had been dis missed by the Sessions Judge. The learned Sub‑Divisional Magistrate, however, refused to order the delivery of the currency notes and the gold kantas to the petitioner mainly on the ground that no definite order had been passed by this Court as regards the disposal of the property. It is against this order that the petitioner has come up to this Court under section 439 read with section 520, of the Code of Criminal Procedure.

3. Learned counsel for Ghulam Nabi respondent has raised two objections; firstly that as the order of the Sub- Divisional Magistrate was appealable, therefore, the revision petition is barred under section 439 (5) of the Code of Criminal Procedure, and secondly that as the money and the ornament, have already been delivered to Ghulam Nabi respondent, this Court has no power to order its re‑delivery to the petitioner.

4. In support of the first contention he has relied on Ram Dihal v. Badri (A I R 1941 All. 143), where Hamilton, J. relying on an unpublished judgment of a Division Bench of the Allahabad High Court in Mst. Nabban Tawaif v. Shyam Lal (Cr. Rev. No. 696 of 1932), held that when a Magistrate 1st Class passes an order under section 517, of the Code of Criminal Procedure for disposal of property, an appeal from his order lies to the Sessions Judge. The learned Judge while referring to the decision of the Division Bench, observed as follows:‑ "The learned judges who composed that Bench held that on a plain reading of section 520, Criminal P. C., it would appear that any Court of appeal, confirmation, reference or revision may direct any order under section 517, passed by a Court subordinate thereto to be stayed and that Court, of appeal may modify, alter or annul such order. The case before the Bench was one where an Assistant Sessions Judge had passed an order of acquittal and under section 517, Criminal P. C, had passed an order for disposal of property regarding which an offence had been committed. The learned judges of the Bench went on to say that an Assistant Sessions judge was subordinate to the Sessions Judge and appeals from the decisions of an Assistant Sessions Judge ordinarily lay to the Sessions Judge". The question is not free from difficulty. There is no specific provision in the Code of Criminal Procedure, providing an appeal against an order passed under section 517, Criminal P. C. In its terms section 520, Criminal P. C. does not lay A down that an appeal lies under that section against an, order passed under section 517, Criminal P. C. It only provides that any Court of appeal, confirmation reference or revision may direct any order passed by any subordinate Court to be stayed and may modify, alter or annul any such order or pass such further orders that may be just, that is to say, the Courts specified in the section are vested with the jurisdiction to stay, modify, alter or annul such orders. I have not been able to discover anything in the language of this section to warrant the interpretation that it provides for an appeal against an order passed under section 517 of the Code of Criminal Procedure. Unfortunately the Division Bench ruling of the Allahabad High Court referred to by Hamilton, J. is not before me and I am not in a position to say what line of reasoning was adopted by the learned judges to hold that an appeal lies from an order under section 517, Criminal P. C. But if it was decided, merely on the language of section 520, Criminal P. C., as it appears to be, then with the greatest respect to the learned judges who decided that revision petition, I venture to differ from that view. In my opinion the jurisdiction vested in the Courts specified in section 520, Criminal P. C., is a jurisdiction of a special kind and is not dependent upon the appellate and revisional powers of these Courts. If an order passed under section 517, Criminal P. C. is a part of the main order, which is the subject‑matter of an appeal, then the appellate Court, irrespective of the powers conferred by section 520, Criminal P. C., can modify, alter or annul such an order and can also make any further orders that may be just in the exercise of its appellate powers under section 423 (d) of the Code of Criminal Procedure. But where the main case is not pending before any of the Courts specified in section 520, Criminal P. C., then these Courts have been vested with the jurisdiction under section 520, Criminal P. C. to pass the necessary orders. Similarly although, the District Magistrate and the Sessions Judge in the exercise of their revisional jurisdiction under the Code of Criminal Procedure have no powers to modify, alter or annul any orders passed under sections 517, 518 or 519, of the Code of Criminal Procedure, and would be required to report the case to the High Court under section 438, Criminal P. C., if they thought that the order was wrong, yet they have been vested with the jurisdiction under section 520, Criminal P. C., to pass final orders. In view of these powers they are not required to report the case to the High Court. In my opinion, the requirements of the statutory provisions of law will be fully complied with, if an application is made under section 520, Criminal P. C. to the Court concerned complaining against the order passed under sections 517 to 519 by a Court subordinate thereto. I do not think, it is necessary to file an appeal or a revision against such an order. There have been some cases, where such applications have been regarded as being in the nature of an appeal, while in others the jurisdiction has been regarded as a revisional one of a special kind. But I would prefer to call this jurisdiction of a special kind, which is neither revisional nor appellate in its character. The jurisdiction, in my view, is of a supervisory nature. whereby the superior Courts have been empowered to control the orders of the subordinate Courts passed under sections 517 to 519, of the Code of Criminal Procedure. In this view of the matter I do not think section 439 (5), Criminal P. C. is a bar to this petition which has been filed under section 439, read with section 520, Criminal P. C. The High Court has very wide powers in the exercise of its revisional jurisdiction, and can revise an order passed by any subordinate Court, but even if this petition had been filed only under section 520, Criminal P. C, it could not have been legally turned down on the ground that no revision had been filed. In the instant case, it was only in revision that this Court had set aside the conviction and sentence of the petitioner and had held that the currency notes and the ornament belonged to him, and as such a petition under section 520, Criminal P. C. lay direct to this Court. Unfortunately the matter was not brought to my notice at the time when I acquitted the petitioner, other wise I would have incorporated the necessary order in that judgment However, this does not make any difference. I accordingly hold that in the exceptional circumstances of this case, a petition under section 520, Criminal P. C., lay directly, to this Court without invoking the revisional jurisdiction of this Court under section 439, Criminal P. C. This petition is, therefore, not barred under section 439 (5), Criminal P. C.

5. In support of his second contention, the learned counsel for Ghulam Nabi respondent has urged that as the property was no more under the custody of the Court, the same could not be ordered to be delivered to the petitioner. According to him section 517 or section 520, Criminal P. C. did not contemplate double restoration. In this connection he has relied on dhumak Singh v. Tota Mahto and others (A I R 1923 Pat. 84), where Sultan Ahmad, J. observed as follows:‑ "The fact remains that the property had already been restored to the first party ‑ and neither the Court nor the police had the custody of that property. That being so section 517 cannot apply. Section 517 does not contemplate double restoration. There was nothing in the custody of the Court which could be restored". It does not appear from this ruling whether the Magistrate had passed the order under section 517, Criminal P. C., or whether section 517 was at all applicable to the facts of that case. The facts are not given. It is not clear under what circumstances the police had taken possession of the property and under whose order the same had been restored to the other party.

6. The contrary view finds support from the following rulings which were cited by the learned Assistant Advocate- General. In Kanshi Ram v. The Crown (A I R 1924 Lah. 75), Moti Sagar, J. while dealing with a similar question observed as follows:‑ "The words and make an order that may be just' in section 520 are obviously intended to cover cases of this nature and to enable superior Courts to pass orders where property has been erroneously disposed of under section 517, Criminal P. C". The facts of that case are on all fours with the facts of the present case. The money recovered from the accused had been made over to the complainant by the order of the Magistrate who had convicted the accused. On appeal the accused was acquitted. Some months later the accused applied to the Sessions Judge for the restoration of this money, but the Sessions judge rejected the application Bolding; that‑it was barred by limitation. The accused went up in revision before the High Court, and Moti Sagar, J. held that, tile application was in no sense an appeal but an independent application under sections 517 and 520, Criminal P. C. and that no limitation was fixed for such an application. In addition to this, while dealing with the powers of` the Court under section 520, Criminal P. C. the learned judge made the observations quoted above. To the same effect is Shwa Wa v. C.I. Mehta (A I R 1927 Rang. 322), where Mr. Justice Carr, held that "the fact that an order for delivery of property under section 517, Criminal P. C. has been carried out does riot deprive the High Court of its power to order restoration of the property to the rightful person". In similar circumstances in the case reported as Shamsundar and another v. Teja Singh (A I R 1935 Pesh. 98), Mir Ahmad. A. J. C., of the Peshawar judicial Commissioner's Court ordered the restoration of the property. In Post Muhammad and others v. Emperor (A I R 1944 Oudh 310), Ghulam Hasan, J. while dealing with a similar question held that "the fact that the order under section 517 has been carried out by the Magistrate cannot preclude this Court from exercising the powers conferred upon it by section 520".

7. With respect I find myself in entire agreement with the views expressed in these rulings The words of section 520 of the Code of Criminal Procedure, are wide enough to cover such cases and the Courts are empowered to order resto ration of the property to the rightful person even if the property has been delivered by a subordinate Court to some other party. Although I have coo doubt in the matter, yet if it be assumed that the Courts specified in section 520, Criminal P. C. have no power to order restitution of the property, once the property has been delivered to some person under the orders of a Magistrate and is not in the custody of the Court, then in such a case the inherent juris diction of this Court can be invoked under section 561‑A of the Code of Criminal Procedure. It cannot be said that in the aforesaid circumstances this Court has no power to do justice or redress a wrong, merely because there is no express provision in the Code to meet the requirements of the case. The High Court has inherent power to make such orders as may be necessary to give effect to. any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

8. For the foregoing reasons, I accept this petition and direct that the Sub‑Divisional Magistrate Chakwal, should take immediate steps to get the currency notes and the gold kantas (which were recovered from the petitioner) restored to the petitioner. In case Ghulam Nabi respondent has disposed of the gold kantas, he shall make him pay to the petitioner the equivalent value of the gold to be ascertained by him. If Ghulam Nabi respondent does not return the currency notes and the gold kantas, the total amount may be realised as fine under. section 547 of the Code of Criminal Procedure. The record of the case may now be returned to the Sub‑Divisional Magistrate, Chakwal, to carry out these orders. Z. A. S./A. H. Petition accepted.