TALEWAR JHA Vs. MOOL CHAND

JUDGEMENT

(1.) In this application an order passed by the Sessions Judge, Mainpuri, under Section 520 of the Code of Criminal Procedure is challenged. Mool Chand, opposite party, and others were prosecuted before an Assistant Sessions Judge for the offence of Section 380, I. P. C. It was alleged that they committed theft in the cloth shop of the applicant Talawar Jha and stole pieces of cloth. During the trial some pieces of cloth admittedly recovered from the houses of Mool Chand and others were produced before the court. Mool Chand admitted that the cloth was recovered from his possession but claimed that it belonged to him. Others denied the recovery from their possession and did not lay any claim to the cloths said to have been recovered from their possession. The learned Assistant Sessions Judge convicted some of the accused and acquitted the others including Mool Chand. He ordered under Section 517 of the Code that the pieces of cloth which bore the seal or signature of Talawar be delivered to him and that the other pieces which bore neither his seal nor his signature be returned to Mool Chand. Mool Chand filed an application under Section 520 against the order delivering some pieces of cloth to Talewar, in the court of the Sessions Judge. No appeal or revision against the principal order of the learned Assistant Sessions Judge convicting some accused and acquitting the others was filed in the sessions court and none was pending before the learned Sessions Judge, in whose court the application under Section 520 was presented. The dispute in the proceeding under Section 520 was whether the cloth bearing the seal or signature of Talawar belonged to him or to Mool Chand. The learned Assistant Sessions Judge had been satisfied about the genuineness of Talewar's seal or signature on it and, therefore, had ordered its delivery to him, though he was not satisfied that Mool Chand had stolen it. The learned Sessions Judge came to the conclusion that the seals and signatures could not be accepted as genuine; he, therefore was not satisfied that the cloth belonged to Talawar. He was also not satisfied that it belonged to Mool Chand. Therefore, he set aside the order of the learned Assistant Sessions Judge about its delivery to Talewar and directed that it should remain in police custody for one month and that if in this period no order from a civil court was received about its disposal, it should be returned to Mool Chand, from whose possession it had been recovered, on the expiry of the period. This is the order challenged by Talewar before me.

(2.) Two questions, and both important, arise in this case. One is whether Section 520 confers the right upon a party to move an application before a court of appeal, confirmation etc. for modification, alternation, etc., of an order passed under Section 517 or merely confers a power upon a court exercising appellate, confirmatory etc., jurisdiction in the case to pass such an order. In other words the question is whether the power of Section 520 can be exercised by any court to which an appeal may lie or which may exercise the power of confirmation etc. or only by that the court which has already been seized of the matter in exercise of its appellate, confirmatory etc. jurisdiction. The second question which will arise only if it is held that the power of Section 520 can be exercised by any Court to which an appeal may lie or which may exercise the power of confirmation etc., is whether the court has jurisdiction to question the principal order of the inferior court and to modify, alter etc., an order under Section 517 even though it was just and proper according to the principal order.

(3.) Section 520 reads as follows: