Lakshmana Dorai and Others vs Arunagiri Chetty

Walsh, J.—This is a revision petition against the order of the Subdivisional Magistrate of Salem in Criminal Appeal No. 36 of 1931, that

certain sandalwood taken by the accused from P. W. 4 should be returned to P. W. 4. The sandalwood was the subject of a charge of theft and

was found by the police in the possession of accused 1 and 2. P. W. 4 claimed to have cut and stored it as lessee of P. W. 3, and the latter put

forward his title to the property as the Pattarkaran or Jagirdar of the Kalrayan Hills. The case was tried by the Stationary Sub-Magistrate of Attur

and accused 1 and 24 others were convicted. On appeal the Subdivisional Magistrate of Salem found that in seizing the sandalwood the accused

acted under a bona fide claim of right and acquitted them, but ordered the sandalwood to be returned to P. W. 4. It is this latter order which is

now sought to be revised.

There is no question about the general rule in the case of orders u/s 517, Criminal P. C., that the property should be returned to the person from

whose possession it was taken; and Vaiyapuri Chetty v. Sinniah Chetty AIR 1931 Mad. 17, K. Srinivasa Moorthi Vs. Narasimhalu Naidu, ,

Devidan Sowcar v. Janaki Ammal AIR 1932 Mad. 428, Sattar Ali Vs. Afzal Mahomed, and Brojendra Chandra Dey Vs. K.S. Sama, have been,

quoted. Mr. Ganapathi for the Crown admits this general principle, but he argues that in the circumstances of the present case, where P. W. 4 had

felled the trees with the permission of the Forest Department, and had stored them in his shed and where accused 1 admitted that he had taken

possession of them from P. W. 4, the order was correct, and that in any case the discretion of the Court should not be interfered with. He quoted

two cases where the principle of returning the property to the person from whom it was taken was not followed. The first of these is Nagaratnam

v. Rukmani 2 Weir 668. This case was conserved by Jackson, J., in his judgment reported in Vaiyapuri Chetty v. Sinniah Chetty AIR 1931 Mad.

The first thing to be noted about Nagaratnam v. Rukmani 2 Weir 668 is that the exact facts are not stated and that it is definitely stated that

Section 517, Criminal P. C, did not apply. Muthuswami Ayyar, J., who decided that case in 1889 also decided another case (In re Subbarayudu)

(which is also reported in the same volume and at the same page) Cr. R.C. 458 of 1894, in which he followed Cr. R. C. No. 862 of 1883 where it

was held that the property should be returned to the person from whom it was taken. In Vaiyapuri Chetty v. Sinniah Chetty AIR 1931 Mad. 17,

Jackson, J., remarks:

The question how far a Magistrate''s discretion u/s 517, Criminal P. C., should extend, is better answered by reference to fundamental principle

than by any attempt to piece together a coherent system from various rulings.

The case in Rangaswamy v. Emperor AIR 1928 Rang. 113, was apparently not quoted to him. But it must, I think, be regarded as one of the

exceptional cases. He then states:

It may seem therefore that the simple rule should be that if no crime is made out the Magistrate should return the property to the party from whom

it was taken. But that rule is just too simple. Suppose, to take a common example, the accused person whom the Magistrate acquits, has pleaded

that the property was foisted upon him. There would then be no sense in the Magistrate telling him to keep it. Other instances can no doubt be

imagined, but, except in these special cases, the Magistrate should return the property to the person from whom it was taken.

I can find no exceptional reasons why the ordinary rule should not be followed in this case. The appellate Court remarks, as regards the rival

claims of P. W. 3 and of accused 1, to be pattakaran:

So far as the oral evidence is concerned I think that accused 1 has as good a right as, if not better than, P. W. 3 to the pattakaranship,

and it finds that the document Ex. D filed by P. W. 3 is of little or no use to prove his case. It further finds that even if P. W. 3 were pattakaran, he

would not have any right to sell sandal wood trees, and also that, of the documents filed by P. W. 3, Ex. P was a nominal document executed at a

time when a suit was pending in the Court of the District Judge and was got up to raise a title. Ex. S. a document said to have been executed by P.

W. 3 to P. W. 4 by which extension of time was granted to P. W. 4 to remove the sandalwood, is also found to be not only suspicious but void

under the Registration Act, and P. W. 4''s removal on the strength of this Ex. S was held to be bad. In these circumstances I fail to see any reason

to depart from the ordinary rule.

As regards interference with the discretion of the lower Court for which In re Sadashiv Narayan Valkar [1909] 1 I.C. 103 was quoted for the

respondent, I consider there is no difficulty whatever, looking to the learned Magistrate''s order, because he clearly did not exercise his discretion

at all in the matter. What he says is this:

It is argued by the learned Counsel for the defence that the timber should be returned to appellants 1 and 2 from whom it was seized. But I do not

see eye to eye with him in this argument. The sandal wood was taken by the accused from P. W. 4 in whose possession, rightly or wrongly it was,

and as such, it must be returned to P. W. 4 and it is open to the appellants to go to a competent Court in that matter.

So the learned Subdivisional Magistrate, instead of starting with the presumption that the property should be returned to appellants 1 and 2, and

giving reasons for exercising his discretion in another manner by ordering its return to P. W. 4, starts with the idea that, whether P. W. 4''s

possession of the property was right or wrong, he has no option but to return it to him. So he has not exercised his discretion in the matter. The

petition is therefore allowed and the sandal wood is ordered to be restored to accused 1 and 2 from whose possession it was taken by the police.