BUDHULAL HARNARAYAN AGARWAL Vs. SUKHMAN

JUDGEMENT

(1.) ONE Bansi Halbi was tried for the alleged offence of stealing ornaments, which are described by letters A to H, from the house of Sukhman constable. These articles were pledged by Bansi with the applicant, Budhulal. The articles were seized from him and produced in the Court, during the trial Bansi's trial terminated in his acquittal, it being found that he had not stolen the articles but that he had received them from Sukhman's wife for being pledged with the applicant as security for a loan of Rs. 100 advanced by him. The trying Magistrate ordered the return of the ornaments (articles A to H) to Sukhman as he was supposed to be the owner thereof. That was done in accordance with Section 517, Criminal P.C. An appeal filed from that order was dismissed and the applicant has moved this Court in revision praying that the articles should be returned to him.

(2.) SECTION 517 says that at the conclusion of the trial the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. This section authorises the Court to return the articles whether or not an offence is committed in respect thereof to the person claiming to be entitled to possession. The expression "person claiming to be entitled to possession" is important. It does not mean the owner. Ownership involves a question of title, whereas possession does not. The articles were seized from the custody of the applicant and it has been found that he did not come into possession of it by illegal means. If Bansi did not commit any theft, it must be presumed at least so far as the criminal proceedings are concerned that he came in lawful possession of the property and that he transferred the custody of it to the applicant in a lawful manner. Whether Bansi was, directly authorised by Sukhman or not or whether the ornaments belonged to Sukhman or his wife as her stridhan would be questions material in civil proceedings that may be founded on the pledge. So far as the applicant is concerned there is nothing to show that he acted in bad faith. It is true that Bansi was only a waterman but the applicant took care to satisfy himself about the bona fides of the transaction before he accepted the pledge, viz., that one Kalarin had accepted the pledge of ornaments from him and that because her terms were somewhat high and the applicant's less onerous that Bansi wished to pledge the ornaments with the applicant. It may be that there was negligence on the part of the applicant but that is a matter not for the criminal Court but for the civil Court to decide. So far as the pledge goes, it would be for the civil Court to decide whether the contract involved in the pledge was binding upon Sukhman or not. But it cannot be disputed that the applicant came into possession of these articles under a contract. To hand over the articles to Sukhman would be an interference with the contract in pursuance of which the applicant held possession of the ornament. His possession being under a contract must be regarded as legal possession and, if the contract is valid, it must be assumed that he would be the person entitled to possession thereof as against the other party to the contract.

(3.) THAT is a question which lies beyond the purview of the criminal Court and unless that is decided no one but the applicant would have the legal right to the possession of the ornaments. This was the principle which was enunciated in Sharaf Din v. Gokal Chand A.I.R. 1931 Lah. 304 and I am in respectful agreement with it. My attention is invited to Local Government v. Beni Madhao A.I.R. 1936 Nag. 143 but that case is not in point as the point decided there was that when, the owner of the property is not known and the property appears to be suspicious it could be confiscated. That is not the question here. I set aside the lower appellate Court's order and direct that the ornaments (articles A to H) be delivered to the applicant from whose possession they were seized.