Muthiah Muthirian vs Vairaperumal Muthirian

Ramaswami, J.—This is a case in which the maternal uncle alleged as a complainant that his nephew had stolen from him two ear-rings and

cash of Rs, 4810-0-9. The prosecution mainly relied upon a confessional statement recorded u/s 27, Evidence Act which is stated to have been

made by the nephew.

The appellate Court found that this confessional statement could not be accepted as it exceeded the limits of admissibility laid down in the Privy

Council decision of - ''Kotayya v. Emperor'', AIR 1947 PC 67 (A) and the Madras cases of - In Re: Akulu Paddayya Naidu, ; - In Re: Vellingiri,

; - In Re: Vellingiri, In Re: Sheikh Khader Sahib and Another, and that there were several circumstances in this case like the uncle not coming

forward with the complaint at the earliest possible time and the improbability of a nephew stealing the property of his uncle etc. creating

considerable doubt and reversed the trial Magistrate''s conviction giving the accused the benefit of doubt.

A revision petition was filed in the High Court. Here my learned brother Somasunda-ram J. refused to interfere with the acquittal and confined the

revision only to the disposal of stolen property which was the subject-matter of the case. In regard to this the uncle wants the return of the property

and the nephew contests it. Therefore, what has to be done now in the matter of disposal of property is the point for consideration.

In normal circumstances, on acquittal or discharge the property would be returned to the person from whom it was seized: - Muthusami Pillai

Vs. Government Tahsildar of Ramnad, . ''In re Subba Raidu'', Am 1922 Mad 329 (G); - ''Vadalapatta Sub-bayya v. Ponnangy Narasayya'', 2

Weir 673 (H); - ''In re Syed Mohideen Sahib'', 2 Weir 667 (I). But when there are circumstances showing that the culprit has not claimed the

property as his specifically and when there are also no grounds to hold that the property could belong to him, and the ques-tion of ownership has

not been gone into in the judgment and decided one way or the other and the discharge or acquittal is based upon inadequacy or doubtfulness of

the proof offered, it would be unreasonable to return the stolen property to the accused person.

But a Criminal Court, as well pointed out in the exhaustive analysis in Chitaley and Annaji Rao''s Criminal Procedure Code, Vol. III, 4th (1950)

Edn. at page 2862, is not expected, under the provisions of Section 517 to ""try"" civil cases. It is not the function of a criminal Court to decide nice

questions involving principles of civil law, if there is a dispute between rival parties claiming a return of the property. It should not help a party

whose object is to endeavour to obtain its judgment upon a question which ought to be determined in a civil Court. Where, therefore, there is a

doubt as to ownership"" of property, or where a ""question of bona fide title"" by purchase or otherwise arises, the duty of the criminal Court is to

leave the parties to their remedy in a civil suit. In the meanwhile, the criminal Court may adopt any one of the following modes of disposal:

(1) It may return the property to the person from whom it was seized and leave the dissatisfied party to his remedy in a civil Court.

(2) It may keep the property in its custody pending the decision of a competent civil Court. This course may not generally be desirable and as

pointed out in - Mahammad Yusuf Vs. Krishna Mohan Bhattachariya, , the desirable course is that the Court should in such cases deal with the

matter u/s 523 but in no circumstances, ordinarily whether the case be under this section or u/s 523, should 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.

(3) In cases where property is claimed by a person other than the person from whom it was faken, the Court may impose conditions on the person

to whom it is delivered in order that the property or the value thereof may be forthcoming in case the rival claimant establishes a title to it: 2 Weir

667 (I); - Kedar Nath Dey Vs. Mohamed Siddik and Others, .

(4) It may, where the property is subject to speedy and natural decay, order it to be sold and the proceeds retained in custody of the Court until a

right to it ,is established by civil Court: - ''Chenga Reddi v. Ramasami Goun-den'', AIR 1915 Mad 588 (2) (L).

Where the property is delivered to one of the parties, the only effect of such order is that it determines which of the parties should be left to sue

in the civil Court: - ''Bhagwat Ram v. Emperor'', 12 Cri L J 400 (Mad) (M); - ''Rahman v. Abdul Samad'', AIR 1919 Low Bur 51(1) (N). In fact

the trial Court in'' the instant case has adopted a most reprehensible procedure in regard to the property involved of asking the accused as to what

he has to say regarding the deposition of P. Ws. 10 to 12 and the, accused merely stated that he had nothing to say and that he had ""no

connection"". This is a matter, however, which in this case cannot be decided one way or the other, because both the Courts below have not given

their attention to it.

Therefore, the best course to safeguard the interests of both the parties is to direct the lower Court to return the property to the complainant, P.

W. 1, on his furnishing security to the satisfaction of the Stationary Sub-Magistrate, Tiruchirapalli Taluk, so that he would be able to make good

the amount in case a suit is filed against him by the nephew and he succeeds in it.

The Sub-Magistrate is directed to give notice to the accused before accepting the security so that the accused if he is so willing and forthcoming

can assist the Court in testing the security. But the final decision will naturally be that of the Sub-Magistrate and this direction should not in any way

be construed as fettering the discretion and decision of the Sub-Magistrate.

I wish to make it clear that I am not deciding in this revision petition whether the property really belongs to the uncle or to his nephew. This is a

matter for the civil Court to decide.

This petition is disposed of accordingly.