GOKALDAS KALYANJI Vs. MOHANLAL MANJIBHAI

JUDGEMENT

(1.) This Criminal Revision Application arises out of an order made by the learned Sessions Judge Rajkot setting aside an order made by the Judicial Magistrate First Class Rajkot and directing that the complainant be allowed to retain possession of all the muddamal articles. The muddamal articles consist mainly of agricultural implements of various kinds machinery engine and such other articles including a pair of bullocks. The matter arose in this way. The case of the complainant was that he was in actual possession of the Vadi situate on the left-hand side of the Rajkot-Kotharia Road and his sathi Karamsi Nathu was doing all the agricultural work and residing in the Vadi. The complainant alleged that on 15th April 1960 Karamsi Nathu went to some village after locking the rooms in his possession as also the gate of the Vadi and during the absence of Karamsi Nathu the accused broke open the locks of the gate of the Vadi and the rooms committed criminal trespass in the Vadi and took possession of the Vadi along with the muddamal articles. On these allegations the complainant charged the accused for offences punishable under sections 341 and 455 Indian Penal Code. The complaint was sent by the learned Magistrate to the police for investigation and report under section 202 Criminal Procedure Code and after the police submitted the report the learned Magistrate issued summons against the accused for offences under sections 341 and 455 Indian Penal Code. The trial of the accused commenced on 4th January 1961. The complainant gave his evidence and produced various documents but before his cross-examination was concluded the parties compounded the case and as a result thereof the complainant did not lead any further evidence. The result was that the accused were acquitted of the offence under section 341 Indian Penal Code. So far as the offence under section 455 Indian Penal Code was concerned the accused were discharged of that offence. This happened on 4th January 1961. It may be mentioned at this stage that during the course of the investigation and whilst the trial was pending the muddamal articles were handed over by the police to the complainant under the order of the learned Magistrate on the complainant executing a bond for Rs. 12 0 Since the muddamal articles were with the complainant the accused after their acquittal and discharge on 4th January 1961 made an application to the learned Magistrate for an order that the muddamal articles be handed back to them on the ground that they were the persons from whose possession the muddamal articles had been taken by the police as a result of the complain filed by the complainant and they had been acquitted of the offence under section 341 Indian Penal Code and discharged of the offence under section 455 Indian Penal Code being the offences charged in the complaint. Notice was thereupon ordered to be issued to the complainant to show cause why the muddamal articles should not be returned to the accused. The complainant filed his objections to the application of the accused and contended that the muddamal articles were in his lawful possession upto 15th April 1960 when they had been forcibly taken possession of from him by the accused and he was therefore the person best entitled to the possession of the muddamal articles and that the muddamal articles should therefore remain with him and that possession thereof should not be delivered to the accused. After hearing arguments on both sides 5the learned Magistrate came to the conclusion that the muddamal articles should be handed over to the accused and he therefore made an order for handing over of the muddamal articles to the accused under section 517 Criminal Procedure Code. Being aggrieved by this order the complainant filed an appeal against the same in the Court of the Sessions Judge Rajkot the learned Sessions Judge came to the conclusion that having regard to the facts and circumstances of the case the complainant was the person best entitled to the possession of the muddamal articles and he accordingly set aside the order made by the learned Magistrate and directed that the complainant be allowed to retain possession of the muddamal articles. It is against this order passed by the learned Sessions Judge that the accused have filed the present Criminal Revision Application.

(2.) The main ground on which the accused have contended before me that they are entitled to possession of the muddamal articles is that they were the persons from whom possession of the muddamal articles was taken by the police as a result of the complaint filed by the complainant and that since they were acquitted of the offence under section 341 Indian Penal Code and discharged of the offence under section 455 Indian Penal Code being the offences with which they were charged in the complaint possession of the muddamal articles should be returned to them. According to the accused they were acquitted of the offence under section 341 Indian Penal Code and discharged of the offence under section 455 Indian Penal Code and no offence was shown to have been committed in respect of the muddamal articles and there was therefore no reason why possession of the muddamal articles should not be restored to them. Now it is true that ordinarily when a prosecution results in an acquittal or discharge and no offence is shown to have been committed in respect of any property in the custody of the Court possession of the property should be restored to the person from whom it was seized for such person would in the normal course be the person best entitled to possession of the property but there may be cases where the facts and circumstances are such that it would not be right to restore possession of the property to the person from whom it was taken and the Court may consider having regard to the facts and circumstances of the case that the person from whom the property was seized is not the person best entitled to such possession. The person from whom possession of the property was taken may have come by it dishonestly or he may have taken forcible possession of the property from another person or it may be obvious from the record that such person is not entitled to possession of the property in all such cases the Court may in the proper exercise of its judicial discretion refuse to restore possession of the property to such person and may deliver possession of the property to the person who in its opinion is the person best entitled to possession of the property. The instances which I have given above are merely illustrative and there maybe numerous types of cases where the Court may come to the conclusion that the person from whom possession of the property was taken is not the person best entitled to possession of the property and in such an event the Court would refuse to restore possession of the property to such person. It must also be remembered that what the Court has to consider is who is entitled to possession and the Court has not to consider and is not competent to consider who has a good title in the property. No doubt it may sometimes happen in order to decide who has the best right to possession that the Court has to consider prima facie questions of title (vide the judgment of Beaumont C. J. and N. J. Wadia J. in Criminal Revision Application No. 65 of 1935 reported in the foot note in 39 Bombay Law Reporter 119) but it would not be right for the Court to go into questions of title and to decide them finally one way or the other. That would be a matter for the Civil Courts and the Court would be going beyond its powers under section 517 in entering upon a consideration of any such questions.

(3.) These are the principles which I must apply in considering whether the order made by the learned Sessions Judge is correct or requires to be set aside. The learned Sessions Judge relied on various documents produced by the complainant for the purpose of coming to the conclusion that the possession of the vadis was with the complainants father since 1956 and that it was the complainants father who paid Government dues of Tagavi and also paid land revenue in respect of the Vadis from 1956 to 1960. The learned Sessions Judge also relied on the occupancy certificate in respect of the Vadis issued in the name of the complainants father as mortgagee. The learned Sessions Judge also placed considerable reliance on the statement made by accused No. 1 before the police. Relying mainly on these materials the learned Sessions Judge found that the accused forcibly took possession of the muddamal articles from the complainant on 15th April 1960 and that it was the complainant who was lawfully in possession of the muddamal articles until he was unlawfully dispossessed of the same by the accused. The learned Sessions Judge accordingly came to the conclusion that though the muddamal articles were seized from the accused the accused were not the persons best entitled to possession and that it was the complainant who was really entitled to possession and that the possession of the muddamal articles should therefore be allowed to remain with the complainant. The grievance of the accused against this line of reasoning was that the learned Sessions Judge should not have referred to the police statement of accused No. 1. This question is however completely set at rest by decisions of various High Courts including a decision of the Bombay High Court reported in Queen Empress v. Tribhovan Manekchand (IX Bombay 131) where it has been clearly laid down that such statement can be used for the purpose of an inquiry under section 517 Criminal Procedure Code. This being the position the accused contended that though there might be no bar to the use of such statement for the purpose of an inquiry under section 517 Criminal Procedure Code such statement must be proved in accordance with law before any use can be made of it in the inquiry for the purpose of deciding to whom the property should be delivered. In the present case the police statement of accused No. 1 was not proved and the learned Sessions Judge made use of it without the same having been proved. There is considerable force in this contention urged on behalf of the accused. I do not think that even for the purpose of an inquiry under section 517 Criminal Procedure Code the Court can use the police statement of the accused unless it is proved in accordance with law. Of course there would be no bar to the admissibility of such statement for the provisions of section 25 of the Indian Evidence Act and section 162 Criminal Procedure Code would not affect the admissibility of such statement for the purpose of such inquiry but that cannot dispense with the necessity of proof of such statement before it can be taken into consideration. This not having been done the order made by the learned Sessions Judge is obviously wrong and must be set aside. The best course under the circumstances would be to send the matter back to the learned Magistrate with directions to hold an inquiry under section 517 Criminal Procedure Code and to decide who as between the complainant and the accused is the person best entitled to possession of the muddamal articles. The complainant will have an opportunity of proving the police statement of accused No. 1 for the purpose of this inquiry and leading such further evidence as he likes and the accused will also have a like opportunity. It is obvious that if the learned Magistrate comes to the conclusion on the material placed before him that the complainant was in possession of the muddamal articles and that possession of the muddamal articles was forcibly taken by the accused from the complainant the learned Magistrate will allow possession of the muddamal articles to remain with the complainant. The inquiry will be confined only to the question who is the person best entitled to possession and the learned Magistrate will not go into any questions of title for the purpose of deciding the title to the muddamal articles one way or the other.