Prakash Chandra Jain vs Jagdish

Naik, J.—Non-Applicant No. 1 Jagdish was convicted u/s 457, I.P.C. by the Magistrate 1st class Raipur and sentenced to undergo rigorous imprisonment for one year. A gold bar and two gold rings Article (H) seized from him, vide Ex. P. 17, were ordered to be restored to the complainant applicant u/s 517 of the Code of Criminal Procedure, During the course of, the investigation, the non-applicant had made a statement Ex. P. 16 in consequence of which the seized article ''H'' was recovered by him. His statement as recorded in the memorandum Ex. P. 16 was:

On appeal the Additional Sessions Judge acquitted the accused on the ground that the property discovered was in no way connected with the theft and house breaking in the house of the complainant. He also observed:

I have very strong suspicion that the gold discovered from the houses of Sukhinath and Jagdish is out of the ornaments stolen from the complainant''s house, but as there is no admissible evidence to convert my suspicion into proof, I have no alternative but to hold that offence against the appellants Sukhinath and Jagdish has not been established.

But in regard to the disposal of the property, he ordered that it shall be returned to the accused non-applicant No. 1.

The learned Counsel for the applicant complainant contends that under the circumstances of the case, the direction regarding the restoration of the seized property to the non-applicant No. 1 was erroneous and that these being quasi civil proceedings, the admission that the seized property was the property of the complainant which had been stolen from his house, contained in Ex. P. 16 could validly be taken into consideration and in that event he would be the person best entitled to the possession of the property.

Proceedings u/s 517 of the Code of Criminal Procedure under Chapter XLIII are quasi civil proceedings which arise on the conclusion of the enquiry or trial in a criminal court for the purpose of disposal of any property or document produced before it or in its custody or regarding which an offence appears to have been committed or which has been used for the commission of any offence. Ordinarily the object of the section is to provide a summary method for restoring the status quo; Rani Sona v. Rao Sobhagsingh, 1936 19 N.L.J. 264). An order under the section only decides the question of possession and not that of ownership or title, which has to be decided by a civil court.

Ordinarily when no offence has been committed in respect of any property in its custody, the court should restore it to the person from whose possession it was seized. But in exceptional cases, where circumstances so warrant and the evidence so indicates that it would be inequitable to restore it to the possession of the person from whom it was seized, the Court may in the proper exercise of its judicial discretion restore it to a person who in Its opinion is the person best entitled to its possession. It was therefore held by Hemeon, J. in Johrilal v. King Emperor ILR 1948 Nag. 948 that "when an accused is given the benefit of doubt and acquitted of theft, it cannot be said that he was necessarily in lawful possession of the property which was the subject-matter of the theft and be is not, therefore, entitled to recover the property under Sec, 517 Criminal Procedure Code."

In the instant case, even though the non-applicant has been acquitted, due to Incomplete evidence, it would not be proper exercise of discretion to hand over the property back to the accused because the confession recorded in the memo Ex. P. 16, though not admissible in the criminal trial would be admissible for the purpose of determining who would be the person best entitled to the possession of the seized property. As observed by West J. in Queen Empress v. Tribhuvan Manekchand ILR 9 Bom. 131 at p. 134 "''Confession'' in Section 25 of the Indian Evidence Act I of 1872 means, as in Section 24, a ''confession'' made by an accused person" which it is proposed to prove against him to establish an offence for such a purpose a confession might be inadmissible, which yet for other purposes would be admissible as an admission u/s 18 against the person who made it (Section 21) in his character of one setting-up an interest in property, the object of litigation or judicial inquiry and disposal". Similar view has been taken in Pohlu v. Emperor AIR 1943 Lab. 312 where Blacker, J. at page 313 observes:

No doubt this is a confession to a police officer and it is also a statement made during the course of investigation. But it would only be barred u/s 25, Evidence Act, if it were being proved as against an accused person. For the purposes of Section 517, Cr. P.C. where the accused does not claim the property it cannot be said that this statement is being used against him and as it is otherwise a perfectly good piece of evidence, I see no reason for not admitting it and relying on it. Similarly, Section 162, Cr. P.C. only bars the use of such a statement ''at any inquiry or trial In respect of any offence under investigation at the time when such statement is made'' Section 517 does not relate to any such inquiry or trial. "In fact the opening words, which are ''when an enquiry or a trial In any criminal court is concluded'', show clearly that it is a separate proceeding from the substantial trial of the accused person for the offence, I can see no bar, therefore, either in Section 25, Evidence Act, or in Section 162, Cr. P.C. to this statement being used for the purpose of Section 517 to determine, firstly, whether the property is property regarding which an offence appears to have been committed, and, secondly, for determining the person to whose custody it should be delivered.

These cases have been followed in Mahanta Singh Natha Singh Vs. Het Ram Pakhar and Another, and the principle laid down therein has my respectful concurrence.

The confession appears to have been ignored by the learned A.S.J. when he ordered the restoration of the property to the non-applicant. He therefore failed to consider the effect of a very strong piece of evidence which entitled the applicant to the possession of the property.

The revision is allowed. The direction regarding the return of the seized property the gold bar and the two gold rings (Art. H.) to non-applicant No. 1 is set aside and it is hereby directed that the property shall now be given in the possession of the applicant who under the circumstances established in the case, is the person best entitled to its possession.