LAKSHMICHAND RAJMAL Vs. GOPIKISAN BALMUKUND

JUDGEMENT

(1.) IN this case certain property was stolen from the complainant on January 3, 1934, and it was found in possession of the present applicant on the next day. The police seized the property, and charged the applicant and his brother with stealing it. But on January 22 the police made an application to the Magistrate that he should discharge the accused as there was no sufficient evidence to place them on a charge-sheet. The police were of course well aware of the presumption that arises under Section 114 of the INdian Evidence Act that a man in possession of property shown to have been stolen soon after the theft is presumed either to have stolen it or to know that it had been stolen, and when the police applied for the discharge of the accused, it must have been because they were satisfied that that presumption could be rebutted. After the discharge of the accused, the question arose as to what was to be done with the property which the police had seized. Apparently this Court by an order made on October 4, 1934, directed the Magistrate to take action under Section 523 issuing a proclamation, specifying the articles in Court, and requiring any person who might have a claim thereto to appear before him and establish his claim. The Magistrate adopted that course, and the only claimants were the complainant and the present applicant. The Magistrate then held an inquiry, and he came to the conclusion that the complainant was entitled to the property. IN so doing he relied on the presumption arising under Section 114 of the INdian Evidence Act that the applicant must have known that the property was stolen. It seems to me manifestly unfair to rely on that presumption against the applicant when the Magistrate had himself discharged the accused in respect of any offence in connection with this property.

(2.) UNDER Section 523 what the Magistrate has to consider is, who is entitled to the possession of property which has been seized by the police. Where it is proved that the person from whose possession the' property was seized came by it dishonestly, the Magistrate may have to consider questions of title in order to determine the best right to possession. But where it appears that the police have seized property from a person who is not shown to have committed any. offence in relation to that property, then in my opinion the Magistrate can only hold that that person is entitled to possession of the property. That is the rule which prevails in Madras (see Karuppanan v. Guruswami (1933) I. L. R. 56 Mad. 654) and in Calcutta (see Sattar Ali v. Afzal Mahomed (1926) I. L. R. 54 Cal. 283) and this Court recently held that the same rule applies to a case arising under Section 517: vide Dhanmall Chellaram v. Kasturchand Krishnaji 1. If the complainant considers that the applicant has no title to the property, he has a remedy in a civil Court, but the burden will be upon him to prove his title. If, however, the property is handed over to the complainant, the burden would be upon the applicant to prove his title in a civil Court. I can see no reason why the burden of proof in a civil suit should be affected by the seizure by the police of property in relation to which no offence is proved.