P L D 1961 (W (PLP)

Qasim Rizvi for Respondent (State). Khaqan Baber for accused. Date of hearing : 16th January 1961. This revision petition arises in the following circumstances the petitioner, Ghulam Nabi, alleged that he was carrying on his person a sum of Rs. 4,005 realised by him as the sale proceeds of thirty‑five or forty buffaloes in the Mandi at Emnabad, and he was about to board a bus for Mian Channu, when suddenly somebody picked his pocket and removed the cloth‑bag or pouch which contained the money as well as a receipt in the name of his brother, Ghulam Rasool. He did not lodge any report until after the expiry of about 24 hours, as he conducted a private search for the culprit during this time. After four or five days of the incident, the police got hold of the respondent. Lai Din, and it is the allegation that he was found in possession of the exact amount of Rs: 4,005 contained in the same cloth‑pouch along with a receipt Exh. P. B. Lai Din was convicted and sentenced under section 411, P. P. C. by the trial Court, but the learned Sessions Judge, Mr. S. M. Tirmizey, found that the evidence was unsatisfactory, not only in respect of the recovery of the amount from Lai Din but also with respect to the realisa tion of the sale proceeds by the complainant, Ghulam Nabi. It appeared to the learned Sessions Judges that the sale of thirty‑five or forty buffaloes should have fetched much more than Rs. 4,005 only. He, therefore, set aside the conviction and sentence recorded against Lal Din, but directed that the money shall be kept in the Malkhana until the parties establish their title before the Civil Court.

2. The petitioner, Ghulam Nabi, is aggrieved by this order, as he considers himself entitled to receive this money. Two points are made on his behalf (a) that the evidence produced by the prosecution clearly establishes the fact that the money, the bag and the receipt recovered from Lai Din belonged to the complainant and, therefore, the learned Sessions Judge was not correct in refusing to deliver these things to Ghulam Nabi, and (b) that in any ease under the law as contained in sections 517 and 523 of the Criminal Procedure Code the Sessions Judge had no power to make the order which he did.

3. As regards the appreciation of the prosecution evidence, I am inclined to agree with the view taken by the learned Sessions Judge. It is indeed strange that Ghulam Nabi should have realised only Rs. 4,005 by the sale of thirty‑five or forty buffaloes, as judicial notice can be taken of the fact that the prevailing sale price of a buffalo these days is anything between Rs. 200 and Rs.

400. Mr. Naqi Chaudhri has pointed out that in the further cross‑examination of Ghulam Nabi there is a statement that a part of the sale proceeds was with his uncle, but this assertion does not find mention in' the first information report or in the examination‑in‑chief of Ghulam Nab& and it is, therefore, difficult to place reliance on this belated explanation offered by him. Further, it is also surprising that a man like Lai Din, who is described as a previous convict and a confirmed pick pocket, should have been carrying about such a large amount of money on his person and in the same bag in which he originally removed it from Ghulam Nabi, even on the fourth or fifth day of the alleged offence. This piece of the evidence has been rightly discarded by the learned Sessions Judge. There are, in fact, indications that the recovery may have been made from Lai Din when he was in his own village and working at his own shop. It seems to me, therefore, that the learned Sessions Judge was right in holding that the offence against Lai Din was not proved and also that the evidence was not sufficient to give a positive finding as to who was the rightful owner of the money in question. 4: As regards the legal contention, reliance is placed upon Muhammad Yusuf v. Krishna Mohan Bhattachariya (A I R 1938 Cal. 17). While dealing with the scope of sections 517 and 523 of the Criminal Procedure Code, the learned Judge observed that "if by reason of a disputed claim to possession an order for delivery cannot be made, or the property may not be finally disposed of by destruction or confiscation or otherwise, the Court should not, make any order under section 517 at all, but leave the parties to their remedy in a Civil Court." He went on to say that "in such a case it will also be open to the Court to deal with the matter under section 523 and make an order under that section as section 523 equally applies whether there has been or there has not been an inquiry or trial or whether the property has or has not been produced in Court". Having made these observations, the learned Judge, however, went further and said. "In no circumstances, whether case be one under section 517 or section 523, can 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". It is this last part of the observa tions of .the learned Judge in the case just mentioned that reliance is placed for the argument that the order made in this case is illegal.

5. I venture to think, with great respect to the learned Judge who decided the Calcutta case, that there seems to be an inherent contradiction in the observations reproduced above. If the person entitled to the property cannot be ascertained and the parties are referred to a Civil Court to establish their title, then it is clear that some order has to be made regarding the interim period for the custody of the property. This position is indeed contemplated by the very words of section 523 itself, which lays down that "the Magistrate shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property." It is clear, therefore, that if the Magistrate comes to the conclusion that he cannot ascertain the identity of the person entitled to the possession of the property, then he has to make such order as he thinks fit respecting the custody and production of such property. That being the law, I d o not see how it can be regarded as illegal for the Court to make an order that the property be detained in the custody of the Court or in the official Malkhana until the parties establish their title in a Civil Court. I cannot agree with the learned Judge that as the institution and decision of the suit might mean detention for an indefinite period, the order directing the detention of the property in the custody of the Court or the Malkhana, as in this case, must be regarded as beyond the law by reason of the likely delay. I am, therefore, clearly of the view that once the learned Sessions Judge came to the conclusion that he could not ascertain the person who was the rightful owner of the property, he was acting within the law in passing the order that the money should be kept in the Malkhana pending a decision by a Civil Court.

6. The result, therefore, is that no jurisdiction is made out for interference with the order in question. The petition is dismissed. K. B. A.