Deopujan Mahto vs Kukur Ahir

Rowland, J.—This application in revision has been referred to a Division Bench by the Single Judge before whom it in the first instance came up for hearing. The facts leading up to the application are as follows: The petitioner Deopujan was the complainant in a case regarding theft of two buffaloes which were missing on 12th August 1937 from the bathan of Deopujan and his cousin. One she-buffalo was recovered shortly afterwards; but a buffalo-calf remained missing. In October 1938 Deopujan got the proceedings revived on giving information that his buffalo-calf was in the possession of Kukur Ahir. The police found the buffalo in Kukur''s possession which Deopujan identified as his; whereas Kukur said that he got the animal from suchit Ahir. On a prosecution of Kukur and Suchit, Kukur was acquitted but Suchit was convicted u/s 414, Penal Code. The conviction was set aside on appeal by the Sessions Judge on 13th March 1939. The principal ground of acquittal was that the proof of identity of the animal with Deopujan''s missing animal was not sufficiently cogent.

It does not appear that any order as to disposal of the buffalo was passed either by the trying Magistrate at the time when he convicted Suchit Ahir or toy the learned Sessions Judge at the time when he acquitted that accused. On 24th April 1939, Suchit Ahir made an application before the Sub-divisional Officer for restoration of the buffalo to him. Of this application the Sub-divisional Officer gave notice to the opposite party and the present petitioner Deopujan put in a reply on 26th June 1939 stating that the buffalo was no longer in his possession having been already sold to Lakhi Koeri of Gobindpur. The Sub-divisional Officer directed the matter to be put up for hearing on 13th July 1939. In the meantime on 8th July 1939 a petition was presented by Kukur Ahir associating himself with Suchit Ahir''s claim and praying that the buffalo might be made over to either of them.

On 13th July 1939 however the Magistrate refused to pass any order. Kukur Ahir apparently allowed two months to elapse before taking any further steps and then he presented to the Sessions Judge on 19th September 1939 an original application in which he made no reference to the petitions of himself and of Suchit Ahir before the Sub-divisional Officer and to the orders passed on those petitions. The Sessions Judge called for the record from his record-room and without notice to any other party passed an order that the buffalo be made over to the petitioner Kukur Ahir "if she is in the custody or control of the lower Court or the police." Against this order Deopujan has moved this Court in revision and two points are taken: firstly, that the Sessions Judge had not jurisdiction to pass the order; and secondly, that such an order could not properly be passed without giving notice to the other side.

On the first point it is argued that an order u/s 517 ought to be passed at once on the disposal of the trial and that an order made some time later on a separate application by a claimant is without jurisdiction. For this contention reference is made to Abdul v. Ghulam Muhammad AIR (1924) Lah 261 a decision of a Single Judge of the Lahore High Court. With great respect the reasoning of the decision does not seem to be acceptable. The same Judge himself had taken a different view in Kanshi Ram v. Emperor AIR (1924) Lah 75 where the view was taken that there was no period of limitation for an application for an order u/s 517, Criminal P.C. And in Kishen Chand v. Nanak Chand AIR (1926) Lah 9 another Judge of the same High Court observed that an order u/s 517, Criminal P.C., is not to be passed until the case is concluded and may be passed at the time of pronouncing the final order in the case or at a later date.

The decision in Abdul v. Ghulam Muhammad AIR (1924) Lah 261 was dissented from. I am of opinion, that Section 517 cannot be read as requiring that the order for disposal of property must be passed simultaneously with the judgment of the case unless we read into the Section words that are not there. In Hash Mohan v. Kali Nath (1871) WR Cr 3, it was observed that an order for the disposal of property in a Criminal Court must be made at the time of passing judgment; but this observation as pointed out by Harrison J. in Hash Mohan v. Kali Nath (1871) WR Cr 3 is directly based on the words in Section 132(a) Code of Criminal P.C. of 1861 as amended in 1869, the words being "the Court at the time of passing judgment may pass such order as appears right: for the disposal etc." If the Legislature had wished the powers conferred under the present Section 517 to be exercised subject to a time limit of this nature, there was no reason why a reference to time should not have been retained in the Section in the form in which, it took in successive enactments of the Code of Criminal Procedure. One may, for the purposes of comparison, refer to Section 545 which deals with consequential orders for expenses or compensation. This Section declares that the "Court may when passing judgment, order etc." Again when power is given in Section 522 to direct restoration of immovable property to a person who has been dispossessed of it by force or criminal intimidation, the Section expressly enacts that the

Court may if it thinks fit when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to possession.

Therefore on a reading of the Sections of law regulating consequential orders, I am of opinion that Section 517 gives jurisdiction to the court to pass necessary orders for the disposal of property either at the time of the conclusion of the trial or at a later date. It would be surprising if this were not so in relation to property in the custody of the Court, for, it is the duty of the Court to make some arrangement for its disposal and it must continue to be the Court''s duty until the property is disposed of in some way or other either by destruction or by passing out of the hands of the Court. Mr. Mazumdar for the petitioner contended assuming the Court to have power to pass an order u/s 517 on an application presented after the disposal of the trial, such an order at least ought to be passed within a reasonable time. I am prepared to say that the passing of such orders should not be unreasonably postponed, but not, that the lapse of time relieves the Court of the duty and the corresponding jurisdiction to pass orders for the disposal of property which is in the Court''s custody or under its contract. The question was raised whether the Sub-divisional Officer had. jurisdiction to entertain the applications of Suchit and Kukur and if not whether the Sessions Judge had jurisdiction in appeal to interfere with his refusal of those applications.

The question really does not arise because the Court of Session was moved as being the Court which had disposed of the criminal trial in appeal and was moved by means of an original application. The objections taken to the jurisdiction of the Court to entertain the application fail for the above reasons.

The next point taken that a final order should not have been passed without notice to the other side is in agreement with the broad general principle of procedure both in Criminal and Civil Courts that an order to the detriment of any party ought not to be passed without giving him notice and an opportunity of showing cause why it should not be made.

It is true that the Section does not in terms require the issue of any such notice and if an order regarding disposal of property is passed simultaneously with the judgment in the criminal case, no one would contend that a separate notice to the parties to show cause in respect of the disposal of the property was necessary; but when an application is made after some lapse of time, I think it only proper on general principles of law that the party to be affected by the proposed order should have notice of the application. This view has been taken in the Madras High Court in Arunachala Thevan v. Vellachami Thevan AIR (1923) Mad 324. It will be necessary therefore to discharge the order of the Sessions Judge and remit the case to him for disposal after hearing the opposite party that is to say the complainant of the criminal proceedings.

I may point out that the order passed on 23rd September 1989 by the Sessions Judge had the disadvantage of leaving it open to a dispute between the parties as to whether the order actually affects the disposal the buffalo or not, for the buffalo was to be made over to Kukur Ahir "if she is in the custody or control of the lower Court or the police." It would be better for the Sessions Judge to ascertain whether the buffalo was at the date of the application in the custody or control of the lower Court or the police before passing an order so that the order eventually passed might be definite in its terms and certain in its application: I would therefore make the rule absolute, set aside the order passed and direct the Sessions Judge to dispose of the matter in accordance with law.

Chatterji, J.

I entirely agree.