Philipp Ullrich vs Chellan Sanyasi

R. Sadasivam, J.—Petition by the complainant Phillip Ullrich to revise the order of the Additional First Class Magistrate,

Padmanabhapuram, refusing to direct the accused to produce the properties concerned in the case which were entrusted to him in pursuance of the

order of this Court in Criminal Revision Case No. 1529 of 1964 dated 2nd November, 1964. In fact it was the Circle Inspector who moved the

Additional First Class Magistrate for such a direction and it was refused by the Magistrate not only on a construction of the order of this Court but

also on the ground that it amounted to testimonial compulsion.

The facts which led up to that order are briefly as follows. The petitioner preferred a complaint to the police u/s 409, Indian Penal Code and the

police seized the properties forming the subject-matter of this petition from the possession of the accused. The accused filed an application u/s

516-A, Criminal Procedure Code, for custody of the properties stating that they belonged to him and that he did not commit any offence in respect

of the same. The learned Additional First Class Magistrate ordered the return of the properties to the accused on condition of his executing a bond

and depositing a sum of Rs. 8,000. The accused came up in revision to this Court and this Court in Criminal Revision Case No. 1529 of 1964

modified the order by permitting the accused to execute a bond for Rs. 8,000 with one surety instead of furnishing cash security and further

directed that the bond would stand cancelled if no charge-sheet was filed by the police before 2nd January, 1965. Unfortunately for some reason

or other, which is not clear, the police did not file a charge-sheet before 2nd January, 1965 with the result that the bond stood cancelled. The

police ultimately filed a charge-sheet against the accused u/s 409, Indian Penal Code, only on 28th March, 1965.

The learned Advocate for the petitioner relied on the decision in Ram Prasad Agarwalla Vs. The State, where it was held that even a forfeiture

of the bond executed by a person to obtain custody of property u/s 516-A, Criminal Procedure Code, would not deprive the Court of its power

to order the production of the property. But in this case, the bond was not forfeited, but got cancelled by reason of the fact that the police failed to

file a charge-sheet by 2nd January, 1965. The effect of the bond getting cancelled is as though the properties were returned to the accused without

a bond. It should be noted that Section 516-A, Criminal Procedure Code, under which alone the accused got possession of the properties, deals

with custody and disposal of property pending trial in criminal cases. In fact even the Criminal Revision Case No. 1529 of 1964 on the file of this

Court arose out of a petition filed by the accused u/s 516-A, Criminal Procedure Code and the petition shows that the accused prayed for

appropriate orders directing delivery of the articles to him so that they might remain in proper custody pending the conclusion of the trial of the

case. Hence the order of this Court in Criminal Revision Case No. 1529 of 1964 cannot take away the jurisdiction of the criminal Court to order

the accused to produce the properties concerned in the case. It should be noted that the properties were seized by the police as being concerned

in the case and it is by virtue of the order of this Courtth at they were returned to the accused u/s 516-A, Criminal Procedure Code. It is true time

limit upto 2nd January, 1965 was fixed for the police to file a charge-sheet and the right of the accused to deal with the properties as he liked, if

really they belonged to him as contended by him, was restrained upto 2nd January, 1965. If the properties continue to remain with the accused,

there is nothing which can stand in the way of the Court ordering him to produce those properties. The learned Advocate for the accused was not

in a position to state whether the properties are still with the accused or not. It is true a summons cannot be issued to the accused to produce the

properties The Supreme Court has held in State of Gujarat v. Shyamlal (1965) 2 S.C.J. 18 : 1965 M.LJ. (Crl.) 417 : AIR 1965 S.C. 1251 that

though the language of Section 94 Criminal Procedure Code, is general and prima facie apt to include an accused person, there are indications that

the Legislature did not intend to include an accused person. The Supreme Court has further observed that it might be that this construction of

Section 94, Criminal Procedure Code, would render Section 96, Criminal Procedure Code, useless for no search warrant could be issued to

search for documents known to be in the possession of the accused but that a general search or inspection by the concerned police officials could

still be ordered.

Having regard to the above principles, the proper thing that the learned Additional First Class Magistrate should have done is to call upon the

accused to produce the articles entrusted to him by virtue of the order u/s 516-A, Criminal Procedure Code and if he fails to do so to issue a

general search warrant to the concerned police officer to search and produce the articles.

The order of the lower Court is revised accordingly and the Additional First Class Magistrate is directed to follow the procedure indicated

above.