Report No. 41
43.11. Section 517(2).-
Sub-section (2) of section 517 provides that when a High Court or a Court of Session makes an order under sub-section (1) and cannot deliver the property to the person entitled through its own officers, the Court may direct the order to be carried into effect by the District Magistrate. Since a High Court seldom tries a case itself and the ordinary original jurisdiction of High Courts is to be completely abolished, this provision is practically unnecessary for them. A Sessions Court also should have no difficulty in getting its order for the delivery of property to a specified person effected through its own officers. We therefore propose to omit sub-section (2).
43.12. Section 517(3).-
In section 517(3), the period of one month may be increased to two months, since the period of limitation is now more than one month for certain criminal appeals. Though in some cases it is 90 days, an increase to two months will suffice to enable a party aggrieved by an order passed under section 517(1) to obtain stay or modification from the appellate or revisional Court. The appeal mentioned in section 517(3) will include an independent appeal against the order regarding disposal of property as well as an appeal in the main case. No elaboration in this respect is necessary here, in view of the re-draft of section 520 we are proposing below.
43.13. Section 517(4).-
Sub-section (4) is put in a negative form and states that nothing in this section shall be deemed to prohibit any Court from delivering any property etc. The object is to enable a Court to deliver the property to any person on his furnishing sufficient security to produce the property if and when required. It appears desirable to put this in the positive form. Since an order made under sub-section (1) is liable to be modified or set aside in revision as well as on appeal, the words "or in revision" should be added at the end.
43.14. Section 518.-
Section 518 empowers a Court, instead of inquiring into the matter and passing a definite order under section 517(1), to send on the property to the District Magistrate or to a Sub-divisional Magistrate, and the latter is authorised to dispose of the property in the manner provided in sections 523 to 525. Functions under the latter sections are at present exercisable by Executive as well as Judicial Magistrates, but since these are essentially judicial functions, we are proposing that the police should report any seizure of property to the appropriate Judicial Magistrate and not to an Executive Magistrate. Consequently, the delegation under section 518 should also be to the Chief Judicial Magistrate instead of "to the District Magistrate or to a Sub-divisional Magistrate". With this change it is clear that the delegation should be available only to a Court of Session and not to any subordinate Court. Instead of a separate section, this provision for delegation should properly be made in section 517 itself.
43.15. Sections 517 and 518 combined and revised.-
It is accordingly proposed that sections 517 and 518 may be combined and revised as follows.-
"517. Order for disposal of property at conclusion of trial.- (1) When an inquiry or a trial in any Criminal Court is concluded, 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.
(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate who shall thereupon deal with it in the manner provided in sections 523, 524 and 525.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub¬section (2), an order made under sub-section (1) shall no be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."
43.16. Section 519.- No changes are required in section 519.
43.17. Section 52.-conflict of decisions.-
The language of section 520 is somewhat ambiguous, and there is a conflict of judicial decisions1 on its interpretation. One view is that no independent right of appeal is conferred on any party against an order passed under any of the three preceding sections, but where a regular appeal is filed against the judgment of the trial court, the appellate court, while disposing of the appeal, may exercise the powers conferred on the trial court by those sections. The other view is, that section 520 confers an independent right of appeal on a party aggrieved by an order passed under those sections, irrespective of whether the judgment of the trial court is or is not challenged in appeal. There is a similar conflict of decisions2 on the interpretation of section 522(3).
1. Sharfuddin v. Sirajuddin, AIR 1961 Ori 121 (123) , (Reviews cases); Sheodas v. Pir Dan, AIR 1963 Punj 167 (168) (Reviews cases); Shantaram v. State, AIR 1961 MP 1 (2); Ram Abhilakh v. State, AIR 1961 All 96.
2. Savlaram v. Dhyaneshwar, AIR 1942 Born 148 (Reviews cases); Subramania Ganesan, AIR 1950 Mad 665 (Reviews cases); Hari Sahu, AIR 1951 Ori 30 (Reviews cases).
43.17a. Commissions' vie.-independent right of appeal necessary.-
If there was no intention to confer an independent right of appeal on an aggrieved party, there would have been no necessity to make an express provision as in section 520. Every appellate court has the power to pass consequential and incidental orders by virtue of clause (d) of sub-section (1) of section 423. Similarly, a court of revision, by virtue of section 439(1), has the same powers as an appellate court; and hence where the main judgment of the trial court is challenged by way of revision, that court also may pass consequential and incidental orders for disposal of the property, even though such orders may involve modifying or altering the order of the trial court passed under section 517.
Apart from these considerations, we think that an independent right of appeal must be given, because the party aggrieved by an order under sections 517, 518 or 519 may not be the same as the party aggrieved by the main judgment. Thus, if in a prosecution under section 411 of the Indian Penal Code, the case ends in acquittal and the trial court directs the alleged stolen property to be returned to the accused, the State may not care to prefer an appeal against the order of acquittal. But the informant may desire to challenge the order for disposal of property on the ground that it was his property and wrongfully taken away from his possession.
Unless an independent right of appeal under section 517 is conferred on him, he will be without any direct remedy. Then again, there may be instances where, apart from the informant or complainant and the accused, there may be a third party who may be entitled to possession of the property or to compensation as provided in section 519. He may be aggrieved by the order passed by the trial court under any of the three preceding sections, and he will be without any remedy unless an express right of appeal is conferred.
43.18. Proposal for altering section 520.-
We therefore propose that section 520 should be altered, conferring a right of appeal on any person aggrieved by a court's order under section 517 or 519. This appeal should lie to the court to which appeals ordinarily lie from convictions by the trial court, and on such appeal, the Appellate Court should have the powers now specified in section 520. At the same time, if the main judgment or final order in the original case goes up in appeal or in revision or in a death sentence case for confirmation by the High Court, the court of appeal, confirmation or revision should obviously have the same powers. 'From the practical point of view, it does not seem necessary that a Court of reference should be included in section 520 or in sub-section (3) of section 5221.
43.19. Possibility of two courts dealing with the matter.-
In making this proposal we are conscious of the awkwardness involved in two courts dealing with the same subject which may happen in some cases. Thus, when an appeal against the main judgment is pending before the appellate court and the aggrieved party also files an appeal under section 520 against the order passed under section 517, it is to be expected that both the appeals will be heard and disposed of by the same court at the same time. This will avoid conflict of findings on the main issues involved in the case. But it may sometimes happen that the appeal under section 520 is heard after the main appeal is disposed of.
In the former appeal, the court will be concerned solely with the correctness or otherwise of the order for disposal of the property, and not with the findings of the trial court in the main case. In any event, the appellate Court's order for disposal of the property under section 517 or 519 cannot affect the finality of the order of acquittal or conviction passed in the main case either by the trial Court or by the Court of appeal, confirmation or revision.
Where a first class Magistrate passes an order of acquittal and an order for disposal of property under section 517, appeal against the order of acquittal will be to the High Court, whereas the appeal against the latter order will be to the Court of Session. Again, where the Magistrate passes a non-appealable sentence, it may be challenged in revision in the High Court, whereas the order under section 517 will be challenged before the Court of Session. In such contingencies, it should be left to the discretion of the superior court concerned, (whether moved by the parties or not), to pass appropriate orders with a view to avoiding prejudice to any party till the final disposal of all matters in controversy. There are decided cases where principles have been laid down for meeting these contingencies, and it will be inadvisable and also impracticable to incorporate them in section 520.
43.20. Section 520 revised.-
We accordingly propose that the existing section 520 be replaced by the following.-
"520. Appeal against orders under section 517 or 519.- (1) Any person aggrieved by an order made by a Court under section 517 or section 519, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court.
(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, modify, alter or annul the order and make any further orders that may be just.
(3) The powers referred to in sub-section (2) may also be exercised by a Court of appeal, confirmation or revision while dealing with the case in which the order referred to in sub-section (1) was made."