1. These two applications in revision are by the same petitioner. They arise out of two petitions filed by the petitioner before the Court of Mr. B.M. Singh, Honorary Magistrate 1st Class, Sasaram, for return to the petitioner certain articles which formed the basis of two trials of the petitioner under Section 411, Penal Code. Some articles were seized from the shop of the petitioner at Dehri and some other articles were seized from a ditch near his house at Nasriganj and these seizures formed the subject-matter of two separate trials. The Honorary Magistrate, Mr. B.M. Singh, who tried these two cases against the petitioner, had convicted the petitioner is both the cases. On appeal, however, the petitioner was acquitted in both the cases by Mr. S.N. Chaudhury, Additional Sessions Judge of Shahabad. In one of these cases he has made the following observations :
“It is quite evident that the articles stolen consisted of two telephone wire pieces measuring one span each. An examination of the search list will show that there is no such wire in the articles seized which would answer to the specification of the wire stolen. There is no evidence that any one of the articles seized was ever stolen. The prosecution has not adduced evidence on the point.”
In the other case the learned Additional Sessions Judge observed as follows:
“There is nothing in the evidence adduced by the prosecution to show that the applicant was in possession of any stolen property much less that he knew it to be the stolen property”.
These orders of acquittal were passed on 17-5-1951. It appears from the record that on 17-7-1951, about two months after his acquittal the petitioner filed applications in the Court of the Honorary Magistrate with a prayer that the things seized in the two cases should be returned to the petitioner as he had been acquitted of the offence under Section 411, Penal Code. The Honorary Magistrate rejected both these applications. In one case he observed:
“The accused did not claim before the police or before the trial Court. He kept mum and said simply that his father is the master. The Government on the other hand claimed this. I am bound to obey the orders of the learned Additional Sessions Judge but I fail to read into it any such meaning which the applicant says. In my opinion it would be against public interest to order the return of the articles unless the applicant establishes his claim before a competent Court of law”.
In the other case he made the following observations :
“Hence observing that the applicant did not la? claim in the trial Court when he shifted the responsibility to shoulders of one Deonarayan and also observing that the appellate Court has not given a clear finding that the articles in question belonged to the accused. I reject the petition. I, therefore, direct subject to the order of the Court above that the articles recovered and exhibited during trial would be returned to the Rohtas Industries and those unidentified and unclaimed would belong to the State unless a competent Court of law direct to the contrary.”
2. Against these two orders of the Honorary Magistrate there were appeals filed in the Court of the learned Sessions Judge of Shahabad. The learned Judge, on appeal, after enumerating some of the articles, was of the view that those articles could not have belonged to the petitioner and he observed:
“There must be some evidence to believe that these articles which apparently appear to be stolen properties and could not have come to his possession in ordinary course of business and avocation were actually purchased and honestly acquired by the appellant and that from a regular dealer and not from a thief”.
It appears that at the appellate stage the petitioner had offered the evidence of a certain person who had deposed that he had sold the copper wires to the petitioner. But the learned Judge disbelieved that evidence and dismissed the appeals of the petitioner and affirmed the order of the Court below.
3. To appreciate the points raised it is necessary further to state that the telephone line between Dehri and Sone East Bank was not working well, On getting that information, Ram Tawakal, a peon of the Telephone Department, went to survey the line, as a result of which he found that at two places the wire had been cut to the extent of one span at each place. He went to the Dehri police Station and lodged first information. In consequence of the first information, several places were searched including the house of one Deonarain Thathera, father of the petitioner, at Nasriganj and from a ditch near his house some Wire nettings of copper and other things were recovered and seized. A month later the Rohtas Industries Ltd. laid claim to the articles mentioned above. The police, therefore, submitted a charge-sheet and the petitioner was put on trial. It appears from the judgment of the learned Additional Sessions Judge on appeal against the conviction of the petitioner that P. W. 7, who was the Electrical Engineer of the Rohtas Industries Ltd., had stated that there was no record with the Rohtas Industries to show that the articles in question were even stolen. In the other judgment the learned Additional Sessions Judge referring to three copper wire rolls has said that Mr. Perkin (P.W. 6), the Engineering Supervisor Telegraphs, had admitted that there was no mark of identification on the wires from which he could say that these were identical with the wires stolen and that he had further admitted that wires similar to the wires in question were sold in market by the Government after the war. The other witness, P.W. 7, had stated that there were no marks on the articles in question and because there were no such marks as he had put on similar rolls of wire, he was not in a position to say that those wires shown to him in Court were the same.
4. I have given this case my very best consideration and I am of the view that the view taken by the Courts below should not be upheld. There is no doubt that these articles were seized and cases under Section 411, Penal Code, were started against the petitioner on the footing that the petitioner was in possession of those articles knowing or having reason to believe that those articles were stolen properties. The prosecution having failed to prove either that those articles were stolen or that the petitioner ever knew or had reasons to believe that those were stolen properties, it is, I think, unfair, after the man had been tried and acquitted, to withhold the delivery of these articles to the petitioner on the ground that he had not claimed those articles as his own. We have it from one of the witnesses for the prosecution that such wires were sold by the Government in the market and after a long lapse of time it may not be possible for the petitioner to exactly trace out the person or persons from whom he had purchased those wires. The learned Judge has also referred to some utensils bearing the name of somebody else. I am not at all surprised that such articles were found in the house of the petitioner, a village utensil-maker, as it is generally the practice to exchange old utensils with new ones, and it is quite likely that those persons whose names are found on these utensils might have got new ones or might have sold the old ones to the petitioners.
Under Section 517, Criminal P.C., it is no doubt discretionary with the Court to make an order in regard to the disposal of the properties in its custody or which had been brought before that Court during the trial or regarding which an offence appeared to have been committed or which had been used for the commission of an offence. In the present case, according to the prosecution version, these articles in question were articles regarding which an offence appeared to have been committed. The question is, after the petitioner has been acquitted, can it be said that some offence was committed regarding these articles? The Additional sessions Judge is definite that these articles had not been proved to be stolen articles. If that is so, and that order is final, in my view, there was no discretion in the Court but to restore these properties to the possession of the person from whose possession they had been taken, because Section 517, Criminal P.C., upon the findings of the appellate Court in the case, had no application. Section 517 can only apply where any property or document was produced before the Court or was in its custody after it was produced or regarding which any offence appeared to have been committed or which had been used for the commission of an offence. On the facts of this case these properties were the properties regarding which allegations were made that an offence under Section 411, Penal Code, had been committed. The appellate Court found that no offence had been committed and, therefore, Section 517, Criminal P.C., had no application and consequently there was no discretion in the Court to allow or disallow the application of the petitioner for restoration of those properties to him. Even if it be supposed that Section 517 applied to the facts of this case, in my judgment, the discretion by the Court below has not been properly exercised.
5. In the case of –‘Hagu Biswas v. Manmatha Nath Mitra’, AIR 1914 Cal 658(A), certain properties alleged to be stolen properties were found in the house of the petitioner. He was tried and convicted of theft. The conviction was upheld by the appellate Court, but on application to the High Court the petitioner was acquitted. After his acquittal, the petitioner applied to the trying Magistrate for the restoration of the properties to him. Their Lordships held that after the accused was acquitted of theft or burglary, the proper order to make was to direct that the property found in the possession of the accused should be restored to him and that, if the complainant so liked, he could go to the civil Court and file a suit and secure an injunction. In the case of –‘Sattar Ali v. Afzal Mahomed‘, AIR 1927 Cal 532 (B), a certain elephant was seized by the police from the accused on the charge of abetment of theft of the animal. The accused claimed a share in the animal on purchase and was acquitted. It was held that
“the elephant having been taken from the present petitioner’s possession, on the failure of the case against him it should have gone back to the present petitioner from whom it had been taken.”
In the case of — ‘In re Devidin Durga Prasad’, 22 Bom 844(C), the accused was charged under Ss. 381 and 411, Penal Code, for dishonestly receiving and retaining stolen property. The Magistrate found there was no sufficient evidence to warrant a conviction, and the accused was discharged. But the Magistrate made the following order :
“From the statement made by the accused it appears that the money found is not his, and it must be detained until the title of the
rightful owner is proved before a civil Court.”
On a subsequent application by the accused for the return of the property to him, both the accused and the complainant were heard and the Magistrate ordered the property to be delivered to the complainant. Their Lordships’ view was that the Magistrate had passed that order under Section 523, Criminal P. C. but, the property in that case having been produced before the Court in an inquiry, the only section applicable was Section 517 of the Code and that under Section 517 the Magistrate had jurisdiction only in case he found that it was property “regarding which any offence appears to have been committed or which has been used for the commission of an offence”. As that was a case of discharge, the case was sent back to the Magistrate to be disposed of in accordance with law with an observation that if he found that the case came within Section 517, then he could make such order as he thought fit; on the other hand, if the case was not governed by Section 517 of the Code, then the only legal order to pass was to restore the previous possession.
In the case of –‘In re Ratanlal Rangildas’, 17 Bom 748(D), it was held that, if no offence is found in respect of the properties produced before a Court in the course of an enquiry or a trial, then the only order which should be made was that the properties must be given back to the possession from which they came. There is no clear Patna case on the point. In my judgment, if the properties were not stolen properties, as has been found by the learned Additional Judge on appeal, then Section 517, Criminal P.C., had no application and, therefore, the properties which were recovered from the possession of the petitioner must be delivered back to him. There was no substance in the order of the first Court affirmed by the learned Judge that the properties claimed by the Rohtas Industries Ltd. should be made over to them after it was found by the learned Additional Sessions Judge that it was not proved that those properties were either stolen from the go-down of the Rohtas Industries Ltd., or that they were theirs.
6. I would accordingly set aside the order of the Courts below and direct that the properties, which are in the custody of the Court and which had been seized from the petitioner’s shop or from his house, should be made over to the petitioner.
7. The applications are accordingly allowed and the rule made absolute.