Report No. 41
43.21. Section 521.- No changes are required in section 521.
43.22. Section 522 not to apply where dispossession is not by force.-
Under section 522 the Criminal Court is empowered to restore possession of immoveable property to any person who has been dispossessed of it by force, show of force or criminal intimidation. A suggestion has been made to us that in many cases possession is taken without use of force in the absence of the original owner and consequently he cannot get the speedy remedy provided for in section 522. We, however, consider that the essential requirements laid down in the section before a Criminal Court could order restoration of possession of immoveable property ought not to be interfered with, because we feel that any whittling down of these requirements is likely to result in the misuse of the power.
43.23. Power to restore possession after evicting by force.-
While section 522 enables the Criminal Court to order restoration of possession to the person who has been forcibly dispossessed of the property, it does not indicate how exactly this order is to be carried out. In the absence of an express power to evict by force, if necessary, the person in actual possession of the property, it appears that the order of the Court under this section may remain ineffective. We think this defect should be removed by a suitable amendment.
43.24. When Court of appeal may order under sub-section (3).-
Sub-section (3) of section 522 provides that an order under sub-section (1) may be made by any Court of appeal, confirmation, reference or revision. This is to meet cases where the trial court has failed to make an order under sub-section (1) and it appears to the Court of appeal or revision that such an order ought to be made in the interests of justice. There is a conflict of decisions as to whether the period of one month from the date of the conviction which is mentioned in sub-section (1) also applies to the Court of appeal or revision.1 This conflict should be set at rest by a slight re-wording of sub-section (3) indicating that the Court of appeal, confirmation, reference or revision may make such an order while disposing of the appeal, reference or revision, as the case may be.
1. (a) Hari Sahu, AIR 1951 Ori 30;
(b) Krishan v. Krishnakuthy, AIR 1960 Ker 348 (Reviews cases).
43.25. Independent right of appeal desirable.-
As in the case of orders for the disposal of property under sections 517 and 519, it is desirable that an independent right of appeal should be conferred upon any person aggrieved by an order made under section 522(1); so also the Court of appeal, confirmation or revision dealing with the main case should have the power to modify, alter or annul an order made by the trial court under this section.
43.26. Section 522 revised.-
We accordingly propose that section 522 be revised as follows.-
"522. Power to restore possession of immovable property.-(1) Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that by such force or show of force or intimidation any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary any other person who may be in possession of the property.
Provided that no such order shall be made by the Court more than one month after the date of the conviction.
(2) Where the Court trying the offence has not made an order under sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.
(3) Where an order has been made under sub-section (1), the provisions of section 520 shall apply in relation thereto as they apply in relation to an order made under section 519."
43.27. Section 523.-
Section 523(1) deals with two different matters. First it lays down that seizure of property by a police-officer shall be forthwith reported to a Magistrate in certain circumstances, and then it goes on to provide for the disposal of such property by the Magistrate.
Seizure of property is to be reported by the police-officer when it is either under section 51 upon searching an arrested person, or under section 550 which empowers any police-officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. There are various other sections in the Code which also empower the police to seize property, e.g., during the investigation of an offence, and most of these provisions contain the requirement that the police-officer should report the seizure to a Magistrate.
It would therefore be better if section 523(1) generally referred to all cases where the seizure of property by a police-officer is reported to a Magistrate and not only to seizure under sections 51 and 550. Where such properly is produced before any criminal court during an inquiry or trial, it will be dealt with under sections 516A to 522. This class of property may be excluded from the scope of section 523(1). This sub-section may accordingly be revised as follows.-
"(1) Whenever the seizure of property by any police-officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property."
43.28. Section 524 amended.-
Sub-section (1) of section 524 provides that where no person is able to establish his claim to the property or where the person in whose possession the property was found is unable to show that it was legally acquired by him, the property shall be at the disposal of the State Government and may be sold under the orders of the Magistrate. Sub-section (2) further provides that every order passed under this section shall be appealable.
From the wording of sub-section (2) it seems that it is the order of the Magistrate directing sale of the property that is made appealable; whereas it is really the implied and antecedent direction of the Magistrate placing the property at the disposal of the State Government that is, and has to be, appealable. After the Magistrate has made a lawful order that the property shall be at the disposal of the State Government, there is no need to provide expressly that it may be sold under the orders of a Magistrate. It is accordingly proposed that section 524 may be revised as follows.-
"524. (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government.
(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate."
43.29. Section 525.- No changes are required in section 525.