In Re: Pydi Ramanna and Others

Sadasiva Aiyar, J.—This is a case taken up in revision by Ayling, J., on a perusal of the calendar. These persons were put up by the Police

before the Joint Magistrate of Viziyanagaram in order that the Magistrate might take proceedings against them u/s 109, Criminal Procedure Code,

requiring them to execute bonds with sureties for their good behaviour. Now u/s 109, security can be required either on the ground that a person is

taking precautions to conceal his presence and is taking such precautions with a view to committing an offence, or on the ground that a person has

no ostensible means of subsistence, or cannot give a satisfactory account of himself. Then Section 110 provides that certain specially qualified

Magistrates may require the execution of a similar bond with sureties for good behaviour if a person is by habit a robber, house-breaker or thief or

a receiver of stolen property by habit, and so on. Now the Joint Magistrate has passed his order not u/s 110 but u/s 109 on the ground that these

six persons had no ostensible means of subsistence and could not give a satisfactory account of themselves ; that is, under Clause (b) of Section

Then he further passed an order confiscating Rs. 211 found with the 3rd accused (the word accused being used in a loose sense so as to

include persons called upon to furnish security), Rs. 260 found with the 4th accused and Rs. 213 found with the 6th accused besides keys,

ornaments and cloths found with the 4th and 5th accused. (The Joint Magistrate does not mention the provision of Jaw under which he passed the

order of confiscation).

As Section 118 of the Criminal Procedure Code, under which orders are passed in proceedings taken under sections 107 to 110, is proceeded

by Section 17 which provides for an enquiry into the, truth of the information on which an order is to be passed, I take it that the order of

confiscation was passed u/s 517, Clause (1). That section is as follows: ""When an enquiry or trial in any Criminal Court is concluded, the Court

may make Rush order as it thinks fit for the disposal of any property or document produced before it or in its custody or regarding which any

offence appears to have been committed or which has been used for the commission of any offence,"" There can be no doubt that the property with

reference to which the confiscation order was passed was property produced before a Criminal Court (that is the Joint Magistrate), that there was

an enquiry in the said Criminal Court u/s 117, Criminal Procedure Code, and that the Joint Magistrate had, therefore, jurisdiction to pass the order

for the disposal of the property because it was produced before him, though there may be no proof that any offence had been committed with

reference to that property even if the word ""property"" by the explanation to the same section included other property which had been converted

into the property produced before the Court. In this connection I might refer to the case in Gobindaraja Padayachi, In re 16 Cri.L.J. 811, in which

a Bench of this Court (Abdur Rahim and Ayling, JJ.) held that u/s 617, Clause (1), the Criminal Court has power to pass confiscation orders only

in respect of property regarding which an offence appears to have been committed and that the Court cannot pass such orders on the mere fact

that the property had been produced before the Court in an inquiry. No doubt trader the corresponding Section 517 of the Act of 1882 the words

regarding which any offence appears to have been committed"" qualify the words ""produced before it"", but the words "" or in its custody "" and the

word '' or '' have again been introduced in the later Code of 1898 before the word "" regarding"" and as pointed out in Russul Bibee v. Ahmed

Moosojee 5 C.L.J. 44, this alteration dearly extended the powers of the Criminal Court to make orders about the disposal of all property

produced before it in an enquiry even without an expression of opinion on the part of the Court that any offence appeared to have been committed

regarding it. I, therefore, respectfully dissent from the decision in, Govindaraja Padayachi. In re 1 Ind. Cas. 827. * * *

Napier, J.

This case taken up by the High Court arises oat of proceedings taken by the Joint Magistrate of Viziyanagaram u/s 109, Criminal Proceed are

Code, He made an order under that section against certain persons to execute bonds with sureties for good behaviour and also made an order for

confiscation of cash and pieces of broken jewellery and cloths found in their possession. The persons against whom the order was made appealed

to the District Magistrate who upheld both the orders, and they themselves have not applied to us in revision, but the propriety or correctness of

the order as to confiscation was doubted by a Judge of this Court and has been put before us for disposal. The order must have been, I think,

made u/s 517. I had at first doubts, whether proceedings under the preventive sections of the Code come within what is an enquiry or trial in the

section, But, as has been pointed out by my learned brother, such proceedings are called an enquiry in those sections, and, therefore, the section

cannot be limited to preliminary enquiries before Magistrates. 1 would, therefore, hold that orders can be made in enquiries under the preventive

sections.

The next question is whether Section 517 covers property which has come before the Court in the circumstances of this case. It has been held

by a Bench of this Court in Criminal Revision Case No. 570 of 1915 that orders can be passed in an enquiry under the preventive section, but that

the order cannot be passed unless it has been shown that the property with regard to which the order is made is such that an offence appears to

have been committed with respect to it or that it has been used for the commission of an offence. With respect to the learned Judges who decided

that case, I think that they had overlooked the language of the present Code. The same view was taken in the case of Surendra Nath Sarma v. Rai

Mohan Das 7 C.W.N. 634 and that case was relied on in a subsequent case, Russul Bibee v. Ahmad Moosajee 5 C.L.J. 44. The learned Judges

in the latter case pointed out that the Bench which decided Surendra Nath Sarma v. fiat Mohan Das 7 C.W.N. 634 had overlooked the

amendment of the Code; and with great respect this is what the learned Judges who decided the case above referred to in our Court seem to me

to have done. The language of the old Code was, as pointed out by my learned brother, limited to property in respect of which an offence appears

to have been committed or which has been used for the commission of an offence, whereas the language of the present Code is quite clear and

extends the mischief of the section to any property produced before the Court or in its custody. Differing, therefore, with the decision in Criminal

Revision Case No. 570 of 1915 Govindaraja Padayachi; In re 31 Ind. Cas. 827 I am of opinion that there is power in Courts acting under the

preventive sections to make an order with regard. to a property which has been produced before it.