JUDGMENT
1. This second appeal arises out of an order made under Section 524 of the Criminal Procedure Code by the Sub-Divisional Magistrate of Sambalpur on the 7th of January 1916, declaring certain gold ornaments valued at Rs. 2,000 to be forfeited and ordering the sale-proceeds thereof to be’ credited to Government. These ornaments, were seized by the Police on suspicion that they were stolen property, or that they had been manufactured out of gold looted in certain dacoities in which plaintiffs Nos. 3 and 5 were concerned.
2. It appears that these two plaintiffs, who are members of a joint family with plaintiffs Nos. 2 and 4, were prosecuted for an offence under Section 411 of the Indian Penal Code in connection with certain other articles but were eventually acquitted. Daring the investigation in that case the plaintiff No. 1 at the request of the Police made over the ornaments in suit to the Police, stating that they had been pawned with him by plaintiffs Nos. 2 to 5.
3. After the acquittal of the plaintiffs Nos. 3 and 5, a proclamation, inviting claimants to the property, was issued under Section 523, Criminal Procedure Code. Thereupon the plaintiffs Nos. 2 to 5 claimed the ornaments numbered 7 and 8 and the plaintiff No. 6 claimed the ornaments numbered 1 to 6; but although they were the sole claimants the Magistrate directed the properties to be forfeited.
4. It is necessary to explain that plaintiff No. 6 is the minor daughter of plaintiff No. 4 and that the jewellery in question was claimed by her as having been presented to her by her father in law at the time of her betrothal.
5. The plaintiffs thereafter unsuccessfully appealed to the Sessions Judge of Puruha, and finally on the 28th of August 1916 the High Court declined to interfere in revision with the learned Judge’s order.
6. The present suit was lodged on the 17th of February 1917. It is resisted by the Secretary of State, who justifies the order and also contends that a suit does not lie.
7. It appears that the properties have not yet been sold and are still in the possession and custody of the defendant.
8. The Munsif found that the allegation that the properties were pledged with plaintiff No. 1 was not true but that it was true that they were in the custody of plaintiff No, 1 on behalf of plaintiffs Nos. 2 to 6, and he made a decree directing the defendant to deliver the property to these plaintiffs jointly.
9. In appeal the decree was slightly varied and it has been ordered by the Subordinate Judge that delivery is to be made to plaintiffs Nos. 2 to 5 only.
10. The appeal before us has been preferred by the Secretary of State and there is no cross-appeal on behalf of the plaintiffs.
11. The first point is, whether a suit lies at all. It is contended that Section 524 of the Code of Criminal Procedure concludes the right of the true owner to enforce his claim by a civil suit, and reliance is placed upon the words ‘ shall be at the disposal of Government.”
12. Now Section 517, which relates to property produced before the Court, allows the Court to make such order as it thinks fit for the disposal of that properly. It has been held that under this section the Magistrate cannot confiscate property, and that he is entitled only to make arrangements for possession, leaving the Civil Courts to decide, in the event of competent proceedings taken therein, the question of title [see Kong Lone v. Ma Pay 4 L.B.R. 13 : 6 Cr.L.J. 125 So again it has been held by the Madras High Court that the words do not authorise the Magistrate to bestow property in charity [High Court Proceedings, dated 20th, July 1875 2 Weir 666].
13. Special powers are given under Section 52l for the destruction of libellous and other matter, but with regard to property dealt with either under Section 517, or Section 524, it would seem that the power of the Criminal Court is limited to making arrangements for the custody end protection of the property while in the possession of Government and to making a transfer of possession to such person as it thinks proper.
14. It does not seem that these sections in any way empower the Government to confiscate the properly, or conclude the right of the person from whose possession the property was taken, or of any other person, to contest the decision of the Criminal Court by a civil suit.
15. This view is in accordance with the decision of their Lordships of the Bombay High Court in Queen-Empress v. Tribhovan Manekchand 9 B 131 : 5 Ind. Dec. (N.S.) 88 and Wasappa v. Secretary of State for India 31 Ind. Cas. 498 : 17 Bom.L.R. 979 : 40 B. 200.
16. The learned Vakil for the appellant relies on Bhukhooree Singh v. Government 8 W.R. 207. That was a case where, under Section 185 of the Criminal Procedure Code of 1861, the property of an absconding offender had been attached and declared to be at the disposal of Government, as he had not within two years after the attachment of the property been able to show that he had not wilfully evaded the service of process. It was held by their Lordships of the Calcutta High Court that he might have availed himself of his right of appeal against the Magistrate’s order but he had no right to institute a civil action.
17. The learned Vakil also relies upon Behary Shaha v. Nubby Khan 9 W.R. 13 Cr.. In that case certain property was the subject of a charge of theft. The Magistrate discharged the defendants, returned to them a part of the property, and ordered the confiscation of the remainder, but he did not follow the procedure required by sections 131 and 132 of the Code of 1861. It was held that the order of confiscation was irregular as he had not followed the provisions of the law. It is suggested to us that (he view of the High Court was that, if the correct procedure had been followed, an order for the confiscation of the property might have been legally made.
18. In Secretary of State for India v. Vakhatsangji Meghrajji 19 B. 668 : 10 Ind. Dec. (N.S.) 447 their Lordships of the Bombay High Court referred to Bhukhooree Singh’s case 8 W.R. 207, but did not decide whether a civil suit could be brought to contest the Magistrate’s order either in respect of the property of an absconding criminal, or in respect of property seized on suspicion and pronounced to be at the disposal of Government. On the other hand the decisions in Queen-Empress v. Tribhovan Manik Chand 9 B 131 : 5 Ind. Dec. (N.S.) 88 and Wassappi, v. Secretary of State for India 31 Ind. Cas. 498 : 17 Bom.L.R. 979 : 40 B. 200 are clear authorities for the view that, so far at least as sections 523 and 524 are concerned, the owner’s right to bring a civil suit is not taken away.
19. It seems to me that Mr. Justice West in Tribhovan Manik Chand’s case 9 B 131 : 5 Ind. Dec. (N.S.) 88 was right in observing that the Magistrate may under these sections make an order which is good as to the delivery of possession bat it is not conclusive as to title.
20. A reference to the English Law also leads to the same conclusion. The Police Property Act, 1897, 60 and 61 Vict. c. 30, Section 1 (1), provides that where any property has come to the possession of the Police in connection with any criminal charge, a Court of summary jurisdiction may make an order for the delivery of the property by the Magistrate to the person appearing to be the owner thereof, or if the owner cannot be ascertained, make such order with respect to the property as to the Magistrate or Court may seem meet. But the Act provides that the order will not affect the right of any person to bring an action within six months against any person in possession of the property delivered by virtue of the order.
21. The learned Vakil for the appellant, however, contends that, though there is no direct authority in his favour, he is entitled to rely on the principle that, when an Act of the legislature gives power to any person for a public purpose from which an individual may receive an injury, if the mode of redressing the injury is pointed out by the Statute, the jurisdiction of the ordinary Court is ousted, and in case of injury the party cannot proceed by action [Governor and Company of the British Oast Plate Manu; facturers v. Meredith (1792) 4 T.R. 794 : 100 E.R. 1306, Stevens v, Jeacocke (1848) 12 Q.B. 731 : 17 L.J.Q.B. 163 : 12 Jur 477 : 116 E.R. 647 : 75 R.R. 614 and West v. Downman (1880) 14 Ch. D. 111 : 42 L.T. 340 : 29 W.R. 6].
22. The reply is that every such case depends on its own Statute. It must be ascertained from the Statute itself whether it is intended to be conclusive and to bar all other remedies. For instance in cases relating to exciseable articles the Statutes give a Criminal Court power to confiscate; any civil suit for recovery will, in these cases, be clearly unsustainable. So again while a civil suit will not lie to modify the amount of maintenance ordered under Section 488 of the Criminal Procedure Code, a civil suit will certainly lie where maintenance has been refused: on the other hand, if it had been necessary to decide that point now, I should hold that sections 88 and 89 of the Criminal Procedure Code debar an absconder from suing for the recovery of his property.
23. But in Section 524 of the Criminal Procedure Code the words ” at the disposal of Government ” may reasonably be interpreted as meaning that Government shall be free to sell the property, or to hold it as a trustee for the true owner. The Statute does not profess to bar the ordinary legal remedies; and there is no reason for reading into it something which is not there. I think the title of the plaintiffs is still alive.
24. The learned Vakil’s final contention is that the suit is barred by limitation inasmuch as the plaintiff’s have not sued to set aside the order of the Magistrate within one year after it was made. ” The reply to this is that this is a suit for recovery of possession and that it is not necessary for the plaintiffs to get the order of the Magistrate set aside at all. The order declaring the property forfeited to Government being illegal and without jurisdiction, it was not necessary to set it aside.
25. The plea of misjoinder raised in the Courts below is not pressed and the result is that the appeal must be dismissed with casts.
26. The learned Vakil requests us not to award costs against the Secretary of State on the ground that he must be deemed to have acted in good faith, In our opinion that excuse will not avail; the Secretary of State resisted the action with the intention of keeping the plaintiffs out of their property. He must, therefore, pay costs like any other unsuccessful litigant.