ARJUN PADHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a revision petition against the order of the Additional Sessions Judge of ganjam, declining to entertain an appeal under Section 520, Cr. P. C. , against that portion of the order of the Sub-divisional Magistrate of Chatrapur in G. R. Case No. S86/60 directing delivery of three material objects M. Os. I, II and III (handas) to the complainant R. S. Panigrahi, after acquitting the accused persons in that case. The learned Additional Sessions Judge thought that there was no right of appeal under Section 520, Cr. P. C. , in view of the decision of this High Court reported in sharfuddin v. Sirajuddin, AIR 1961 Orissa 121. It was urged before him and also reiterated before me that the said Orissa decision was itself based on Talewar Jha v. Mool Chand, AIR 1959 All 96, which has been overruled by a subsequent division Bench decision of the Allahabad High Court reported in Ram Abhilak v. State, AIR 1981 All 544. Mr. Murty urged that the same view has been taken in shantaram Govind v. State, AIR 1901 Madh Pra 1 and in Kanchanlal Somalal v. State, AIR 1963 Guj 223. But he fairly cited before me a decision of the Punjab high Court reported in Sheo Dan v. Pir Dan, AIR 1963 Punj 167 where the view taken by the Orissa High Court in the aforesaid judgment has been followed. There is no doubt that there is conflict of judicial opinion as to whether the power under section 520, Cr. P. C. , can be exercised in the absence of an appeal actually pending before the appellate Court. But in my opinion this question is academic here. Even if it be held that there was no right of appeal before the Additional sessions Judge, as the matter has come up before me in revision I shall dispose it of on merits.

(2.) THE finding of the trying Magistrate is to the effect that the 3 handas, Mos. I, II and III were in the possession of the complainant, that they were taken away by the accused persons and were subsequently recovered from their possession by the Police during investigation. He held, however, that the necessary dishonest intention was not established inasmuch as the Handas were really the property of the villagers though they were kept in the possession of the complainant. Hence, he thought that their removal by the accused persons was not dishonest because they might have had an erroneous impression that as the handas were the common property of the villagers they had a right to take them away.

(3.) HERE we are not concerned with the correctness or otherwise of the order of acquittal. The learned Magistrate directed that the handas should be returned to the complainant from whose possession, on his finding, they were removed by the accused persons.