Badrul Hasan and Another vs Musammat Chambla

Mullick, J.—In consequence of an information lodged before the Police on the 13th January 1918 by one Musammat Chamela, the house occupied by the petitioner Badrul Hasan, his son Nurul Hasan and the petitioner Musammat Haku, the wife of Nurul Hasan, was searched and a quantity of jewellery and one 10 rupee note, which were claimed by the prosecutrix Chamela, were seized by the Police. Subsequently Nurul Hasan was arrested while going along a road in Gaya town and a sum of Rs. 230 in currency notes was found upon his person. This sum of money was also seized by the Police and sent to the Magistrate along with the other'' property. Narul Hasan and Badral Hasan were then prosecuted on a charge u/s 411, Indian Penal Code, but Narul Hasan having died after the commitment enquiry Badrul Hasan alone was prosecuted before the Sessions Court. He was acquitted on the 7th March 1918, on the ground that it had not been established that there had been any theft or dishonest retention of stolen Property. Thereupon an application was made to the Sessions Judge by Badrul Hasan and Musammat Haku, who claimed to have succeeded to the estate of Nurul Hasan, for an order to deliver to them the currency notes of the value of Rs. 230 which were found upon Nurual Hasan''s person. The Sessions Judge refused the application and directed the petitioners to apply to the Magistrate. The petitioners applied to the Magistrate, but upon object turn being made by the prosecutrix Musammat Chamela the Magistrate on the 8th April 1918 directed the notes to be made over to Musammmat Chamela on the ground that they were her property. The petitioners then moved the Sessions Judge, Mr. Foster who had succeeded the officer who tried the original case Mr. Foster has declined to revise the order of the Magistrate on the ground that Section 520 of the Criminal Procedure Code of 1898 does not appear to confer any power of restitution. The petitioners now invoke the revisional jurisdiction of this Court for an order directing restitution of the notes. Although the affidavit attached to the petition before me states that the notes in question were marked as an exhibit in the Sessions trial and that it was therefore, within the competence of the Sessions Court to deal with them u/s 517 of the Code and although a similar statement appears in the order passed by Mr. Foster, I find on referring to the record itself that the notes were not before the trial Judge and that they were certainly not marked as an, exhibit That being so, the Judge was right in declining as an, exhibit That being so, the trying Judge was right in declining jurisdiction u/s 517 of the Code and in directing the petitioners to apply to the necessary action. In this connection I desire to observe that the affidavit is worthless as the person swearing the same was not in a position to state declining jurisdiction u/s 517 of the Code and in directing the petitioners to apply to the Magistrate for necessary action. In this connection I desire to observe that the affidavit is worthless as the person the source of his knowledge in regard to the averment in question, and I desire to draw the attention of parties to the necessity of complying with the rules of this Court in this important matter. The note''s were, however, made an exhibit in the trying Magistrate''s Court and, therefore, that officer had full jurisdiction to make the order which he did u/s 517 The only question is, whether Mr. Foster was right in declining to make an order for restitution on the ground that Section 520, although it gave him the power to interfere with the Magistrate''s order, did not permit him to make an order for restitution. In my opinion Section 520 differs from the corresponding provision in the Code of 1882 and contemplates that the Court of reference or revision shall order restitution, if justice so requires". The words "and may make any further orders that may be just" seem to me to '' be very wide and to have been inserted for the purpose of meeting oases such as that now before me, No express judicial authority has been shown to me on the point since the Code was amended, but having regard to the language of the amendment and to the fact that the amendment was made in spite of decisions under the Code of 1882 laying down that restitution could not be made by the Court of reference or revision, it seems to me clear that the contention of the petitioners before me is correct.

Then arises the question as to how restitution is to be enforced. In my opinion where a remedy is allowed by law, it must be assumed that the Legislature intends that the tribunal invested with jurisdiction, shall enforce its order in the manner it considers most statable, even though there is no express provision for doing the same. In the case before me there is, however, express provision in Section 547 of the Code for realising the money value of the notes as a fine, and I take it that it would also be competent to the Sessions Court to enforce its order by putting the penal law in motion relating to the disobedience of lawful orders. In my opinion it is eminently just, and proper that the currency notes found upon Nurul Hasan should be returned to his representatives-in-interest and that'' on default restitution should be made by payment to them of the money value thereof. The learned Magistrate''s view that the notes were the property of Musammat Chamela appears to me to be based upon no judicial evidence whatsoever. I fail to see how the learned Magistrate, in the face of the finding of the Sessions Court that there had been no theft or dishonest retention, could substitute a finding of his own at variance with that of the trial Court.

The learned Vakil for the opposite party contends that the order of the learned Magistrate was made u/s 523 of the Code and that it is in the nature of an executive or administrative order which is not revisable by the High Court. In my opinion the order is clearly one u/s 517, but even if it had been an order u/s 523 it must be viewed as a judicial order and the provisions of the Code as regards revision are, in my opinion, clearly applicable.

It is not clear whether the petitioners have established their right to administer the estate of the deceased Nurul Hasan. The order, therefore, that I shall make is that upon the petitioners establishing within three months from this date before the learned Sessions Judge that they are entitled to administer the estate, the learned Sessions Judge will make an order of restitution in their favour in the terms proposed. On their failure to establish the necessary title, the application will be rejected.