RAJA RAM GUPTA Vs. STATE

JUDGEMENT

(1.) It would appear that Bala Prasad, present opposite party No. 1, was prosecuted under Sections 380, 457 and 411, I. P. C. Ornaments Exts. 1 to 9 were seized from the custody of the opposite party. He claimed that he was in rightful custody of these ornaments, they having been pledged by D. Ws. 1 to 6 to him. Evidence was led in the trial Court on the ownership of the ornaments also from both sides, the complainant leading evidence that they belonged to him, while Bala Prasad accused leading evidence that the ornaments were pledged to him and he was, therefore, in rightful possession of the same. The lower Court giving benefit of doubt acquitted Bala Prasad on all the counts. It, however, while consider ing the matter of ownership of the ornaments, applied the test of good identification and in cases of those ornaments, i. e. , Exts, 3, 7, 8 and 9, as the performance in the identi fication parade was more than 50%, it upheld that complainant's plea of the ownership and directed that such ornaments may be delivered to the complainant; and at the same time rejecting the complainant's claim of ownership in respect of the remain ing ornaments directed that they be restored back to Bala Prasad, from whom they were seized It would mean that on the same evidence it held the complainant to be owner of some of the ornaments and at the same time rejecting the complainant's evidence in respect of the other ornaments. It would further appear that the lower Court was much influenced by the consideration that there was no identification parade, in which the witnesses for the accused persons participated to identify their ornaments. The matter went in appeal and the learned Additional Sessions Judge vide its judgment and order dated 6-6-1981 held that the view of the lower Court was erroneous and directed that those ornaments, which were directed by the lower Court to be returned back to the complainant (present revisionist), be also returned back to Bala Prasad. I have gone through the two judg ments. Actually, the approach of the lower Court cannot be held to be sound, when on the same evidence, he held the complainant to be owner of some ornaments at the same time rejecting the very evidence regarding the rest. Reliance was placed before the appellate Court upon the case of Purshottam Das Banarsi Das v. State A. I. R. 1952 Alld. 470, It has been laid down that Section 517 of the old Cr. P. C. , does not contain any provision authorising the Magistrate to decide which party is rightful owner of the property and the enquiry should be limited to the finding which person is entitled to possession. It was further held that if the property is seized from the possession of any particular party, that party must be held to be entitled to its possession, unless its possession was secured by such party in an unlawful manner. There is no finding of the Magistrate that the possession was secured in an unlawful manner. In case of such finding, there would have been a conviction and not an acquittal. The learned Counsel for the revi sionist tried to distinguish this ruling urging that in that particular case accused person had claimed ownership, while in the present case the accused person has not claimed ownership. This argument overlooks one impor tant circumstance. As per case of Purshottam Das Banarsi Das (supra) it has been held that it is the right of possession which has to be enquired into and the accused person did claim to be lawtully entitled to the possession of the ornaments, as its pledgee. In the circumstances, any ground of distinction does not exist. Criminal Court is not a competent Court to decide any matter of title. Its primary concern is to decide whether any offence is made out or not. Once it comes to a conclusion that the offence is not made out and the accused person is entitled to bene fit of doubt and acquittal, the only course open to it would be to restore the possession to the party from whose custody the property was seized. This principle has been further affirmed in the case of Smt. Om Wati v. State 1970 A. C. C. 352. In that case also, the Court concerned directed the property, correctly identified-by Smt. Khazano and claimed to be her property to be delivered to her. The prosecution case was that Smt. Khazano was the maid-servant of Bhookhan Saran, at whose house dacoity was committed, and Smt. Khazano had kept her ornament there for safe custody. From the prosecu tion side the property was claimed as belonging to Smt. Khazano and the plea was upheld by the Sessions Judge. It was held by Hon'ble M. N. Shukla, J. , that Criminal Court is not the appropriate for urn for determining the ownership of the property and once the offence alleged is not established, the ordinary expedient rule would be to restore the property from whose custody it was seized. The learned Counsel for the revisionist relied upon the case of Muthiah v. Yairaperumal A. I. R. 1954 Mad. 214. The case was decided in the light of its precuhar circumstances and in para graph 7 at page 215 it was made clear that it is not being decided as to whom the property really belonged. In that case there was also no clear plea of the accused person claiming to be entitled to the possession of the property. I, therefore, after considering the facts of this case hold that this revision has no force and uphold the order of the Additional Sessions Judge passed in the appeal before him. The revision is, accordingly, dismissed. I may, however, make it clear that if the revisionist claims ownership of the property, his proper forum is to seek remedy from the competent Court on the civil side. So far as the Criminal Court is con cerned, it has simply to restore the property to the person from whose custody it was seized, without decid ing as to who is the owner thereof. .