Raj Kishore Mahapatra and Others vs Narasingh Mishra

S. Acharya, J.—This is an application in revision against the order contained in the judgment in Complaint Case No. 97 of 1966 passed by

Sri. P. C. Panda, Judicial Magistrate, 1st Class, Cuttack directing the accused persons, while acquitting them, to deliver physical possession of the

idol of Sri Chandrasekhar Mohaprabhu along with His ornaments, clothings, seat etc. to the complainant for being worshipped in the house

standing on plot No. 2447.

Mr. Dhal, the learned counsel for the petitioners contended that the above mentioned order is illegal and unwarranted in view of the findings

arrived at and observations made in the judgment of the said court.

Mr. Kanungo, learned counsel for the opposite party contended that the trial court was justified in passing the said order in view of the fact that

the Endowment Commissioner decided that the deity was a private deity of the complainant''s family; and that they also had the right to possess the

deity for performing the Seva Puja; and because of the petitioners worshipped in a house on plot No, 2447.

The above order was passed in a complaint case filed by one Narasingha Misra u/s 406 of the Indian Penal Code against these four petitioners

on the allegation that they had taken away the above named idol, the family deity of the complainant, and did not return the same to the

complainant''s family for their performing the Pancha Dola Jatra.

While acquitting the accused persons the court below found as a matter of fact that the said deity was ""the joint property of both the parties"" and

that the accused persons had a right to the Seba Puja of the deity as marfatdars. Regarding entrustment of the deity by the complainant to the

accused the findings of the court below may be quoted as follows:

(i) ""It is doubtful if there was any entrustment with the deity by the complainant in favour of the accused persons......

(ii) ......it would rather be just to say that Mahapatra family acquired a right to take the deity for six days for holding Dola Jatra and truly speaking

there was no entrustment of the property by P. W. 1.

(iii) ......it cannot be said that complainant entrusted the idol for purpose of discharge of any trust.

In paragraph 7 of the court''s judgment, the observations of the trial court are as follows:

In case of deity, the position is on a different footing and the law is also well settled that all the marfatdars of the deity represent the deity as a

whole and not in part according to one''s own share in the property. The only course open for the complainant is to file a civil suit for recovery of

the possession of the deity, and also to get a declaration to the effect that Mahapatra family are only entitled to the possession of the image of the

deity for specified period in a year so that it will be a legal contract, to be enforced in law. The dispute as it appears is a dispute of civil nature

regarding the properties of the deity"".

On the above findings and observations of the court below, it is evident that there is a dispute between the rival parties claiming possession of the

deity. This being so. it is not expected under the provisions of Section 517 of the Code of Criminal Procedure to try this dispute which is of a civil

nature. Their Lordships of the Madras High Court in their decision reported in Muthiah Muthirian Vs. Vairaperumal Muthirian, in quoting a

passage from Chitaley and Annaji Rao''s Criminal Procedure Code, observed as follows;

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.

This view has been reiterated in a decision of this Court in Radhacharan Das v. Padma Charan Patnaik, (1967) 33 CLT 868. I would with respect

quote a portion of paragraph 5 of the said decision which is as follows:

The object of the section is to enable the Court to direct the property to be given to the person to whom it belongs, or to allow it to continue in the

possession of the person in whose possession it was found. Criminal Courts are not expected to try civil cases. The section merely purports to

provide a summary method for having the status quo ante. An order under this section does not decide the question of ownership of the property

but merely decides the right to possession and the ownership is to be determined in the Civil Court"".

In a decision of the Patna High Court in Harihar Singh Vs. Nilkanth Singh and Another, their Lordships accepted with approval the Madras High

Court view in the following manner:

It is observed in that case K. Srinivasa Moorthi Vs. Narasimhalu Naidu, that where the title to seized property is doubtful, it should be returned to

the person from whom it was seized, unless there are special circumstances which would render such a course unjustifiable.

The same view has been expressed by their Lordships of the Andhra Pradesh High Court in Padma Chandriah Vs. Pamjwomi, which is as follows:

In such cases the proper procedure would be to adopt the normal course of returning the articles to the person from whom they were taken''.''

From all these decisions it is evident that Section 517 of the Code of Criminal Procedure merely purports to provide a summary method for

maintaining the status quo ante, unless of course there are special circumstances which will render such a course unjustifiable.

The idol in this case has been with the petitioners since some time past, and such possession, in the context of the findings of the court below as

discussed above, is not without any basis or right. This being so, the deity with the ornaments and articles belonging to him should be allowed to

remain in possession of the petitioner. The rival claims of the opposite party to the ownership and possession of the deity, as has been held in the

cases cited above, cannot be decided in this case, and therefore if he has any such right, he may seek his relief in a proper court of law.

In this view of the matter, the order passed by the court below directing the petitioners to hand over physical possession of the idol of Sri

Chandrasekhar Mahaprabhu along with his ornaments, clothings, seat etc. available with the petitioners, in favour of the complainant is hereby set

aside, and the revision is accordingly allowed.