Smt. Deorathi and Others vs State of U.P.

N.N. Sharma, J.—This revision is directed against the order dated 13-6-80 in criminal appeals Nos. 25 and 29 of 1979 by Sri N. K. Maheshwari, learned II Addl. Sessions Judge, Fatehpur who refused to release the property recovered from the possession of accused in their favour after their acquittal under Sections 457/380 and 411 of Indian Penal Code.

Maiku Lal informant who is Respondent No. 2 was also informed about this revision and has been duly served but did not come forward to contest the same.

I have heard learned Counsel for the revisionist and learned Counsel for State and perused the record.

It appears that Sunder, who is dead now and was husband of Smt. De rathi revisionist and Jagannath, husband of Smt. Ram Dulari and Sia Ram and Ram Awtar revisionists were sent up to stand their trial under sections 457/380 and 411 of Indian Penal Code. They were convicted on 21-2-79 by Sri R. S. Kashyap, learned III Addl. Munsif, Fatehpur. The ornaments in dispute were recovered from their possession vide memos Exts. K.a-3, Ka-4, Ka-5 and Ka-6 dated 23-2-73. In their statements the accused claimed the ornaments as their property. Respondent Maiku Lal failed to prove the ornaments as belonging to him or as stolen property. Learned Sessions Judge acquitted these accused-Appellants but ordered return of ornaments after decision from competent civil court in favour of the party who might be entitled to it. Learned Judge proceeded on the reasoning that as both the parties claim ornaments but did not adduce satisfactory evidence, so the matter was to be decided by competent civil court. He did not cite any authority in support of his direction. Section 452 of the Code of Criminal Procedure which corresponds to old section 517 of the Code of Criminal Procedure provides that after disposal of the trial it was open to the court to deliver the property to the person entitled to possess. The usual rule which has been consistently followed by the courts is that property is to be returned to the person from whose possession it was seized. In N. Madhavan Vs. State of Kerala, it was observed "when after an enquiry or trial the accused is discharged or acquitted, the court should normally restore the property, which is produced before it or which is in its custody, to the person from whose custody it was taken. Departure from this rule of practice is not to be lightly made when there is no dispute or doubt that property was seized from the custody of such accused and belonged to him".

In M/s. Purshottam Das Banarsi Das v. State AIR 1952 All 471 it was observed "A Magistrate is not a Civil Court and has no power to decide about title. There is nothing in Section 523 to authorise a Magistrate to decide which party is the rightful owner of the property. His enquiry is limited to findnig which person is entitled to possession. Once he ascertains the person from whose possession the property was seized, he must hold him to be entitled to its possession unless his possession was unlawful".

Similar point came up for consideration in Smt. Omwati v. State 1970 AWR 10 where it was held, "The intention of section 517 Code of Criminal Procedure is to have the property delivered to a person claiming to be entitled to possession thereof. The ordinary rule which appears to be expedient in such cases is that the person from whose possession the property is recovered should be held entitled to claim possession thereof after the conclusion of the trial. In case any party is aggrieved by an order he is at liberty to establish his ownership by having recourse to appropriate legal remedy. The question of title should not be gone into u/s 517 Code of Criminal Procedure after the trial is over".

I have perused the facts of the aforesaid authorities which are in point. In view of the facts that aforesaid ornaments were recovered from the possession of the accused, who have been acquitted by the learned trial Judge and who claimed these ornaments as belonging to them it is obvious that they have to be restored to them. There is no justification in driving them to civil court to establish their title to the aforesaid ornaments.

In the result, revision is allowed. The impugned order is to be modified to the extent that the aforesaid ornaments shall be released in favour of Sia Ram and Ram Awtar and heirs of Sunder and Jagannath deceased by learned Chief Judicial Magistrate, Fatehpur in the light of the observations made hereinabove. Send the record at once to the court below for immediate despatch. Inform parties.