MOHASSAN Vs. POULOSE

JUDGEMENT

(1.) The petitioner in this revision petition was Pw. 3 in C.C. No. 2242 of 1961 on the file of the Sub Magistrate, Cochin. The case related to theft of 4 tins of Ramacham oil and the case was charged against 3 persons. The case was that Pw. 2 had kept the tins of oil in the godown of Pw. 1, and theft was committed sometime in the night by effecting entry into the godown through the roof. The next day the tins were found intact, but the oil therefrom had been drainen away in other tins brought by the thieves and after filling the tins of the godown with water, they had made good their escape with the oil. The case however, ended in acquittal. But the learned Sub Magistrate directed the disbursement of the stolen oil to Pw. 2. The matter finally came up before this Court, and here the direction of the Sub Magistrate regarding the disposal of the stolen article was set aside and the matter was sent back for decision afresh after taking evidence. The learned Sub Magistrate thereupon took evidence, and came to the same conclusion viz., that the articles should be disbursed to Pw 2. Challenging the order, Pw. 3 preferred Criminal Miscellaneous Petition under S.520 of the Code of Criminal Procedure to the District Magistrate who by order dated 16th March, 1968 set aside the direction of the Sub Magistrate, and ordered the disbursement of the oil to Pw. 3. From that order the further Criminal Miscellaneous Petition was preferred before the Sessions Judge and the learned Judge has set aside the order of the District Magistrate and directed the disbursement of the article to Pw. 2. The learned Sessions Judge's order runs:-

(2.) At the very outset I must observe that the learned Sessions Judge has acted without jurisdiction. The order of the District Magistrate was one passed under S.520 of the Cr. P. C. and it is under the same section that the learned Sessions Judge set aside the order of the learned District Magistrate. This the learned Sessions Judge is not competent to do. Under S.520, the jurisdiction conferred on the District Magistrate and the Sessions Judge is concurrent and when once the applicant elects one or the other forum, the remedy is exhausted and no appeal or revision would lie against that order to the other forum under S.520. The jurisdiction of the other court would cease, when once the matter is taken up by the court of corresponding jurisdiction. The remedy against an order passed by such a court will be by way of revision to the High Court and not by way of an appeal as was done in the present instance to the other court which also enjoys only the same powers as the court which was moved in the matter first.

(3.) Now coming to the merits, I feel no hesitation to hold that the conclusion reached by the learned District Magistrate is the correct one in the circumstances of the case. Pw. 3 is the agedt of a dealer at Kozhikode to whom the oil was sold by Pw. 8, and in the course of the investigation the article was seized by the police from Pw. 3. Normal rule in a case of this nature is to return the article to the person from whose possession, it was seized.