087-NLR-NLR-V-20-SILVA-v.-HAMID.pdf
( '414 )
1018..
c
[In Revision.]
Present : Bertram G.J.
SILYA v. HAMID.P. C. Colombo, 16,169.
Criminal ProcedureCodet s.413—>4 cquittatofaccused—Disposal of
pi operty-=-Offence other than the offence tried committed by accused.
Where .property has been stolen, and the charge is made againstthe personfor receiving the property sostolen, even thoughthe
Magistrate -acquits the person charged with so receiving itj he -titter,if he comes to the conclusion that the property actually -was" stolen,order it tobe delivered to the personfromwhom ittos', taken,mid
disregard the possessionofthe receiver; or-hemay order ,the
property to be retainedinCourt.But where.itappears to .the
Magistrate thatthe offencewhich was thesubject-matter of the
trial was not committed,hecannotmake an orderfor the * disposal
– of propertyunder section 413 oftheCriminalProcedure Code,
though it may appear to him incidentally that an offence wascommitted; the only proper course for the Magistrate to adopt . is
to return the property to the person in whose possession it was..
✓ -Aliter, wherethe offence,which 1 appearstohave been committed,
only transpires incidentally, and is not, either directly ' or indirectly,the subject of the Magistrate’s investigation. In such a • case, theonly proper coarse is toreturn theproperty totheperson in whose
possession 'it was.
The words “ any offence "in section 413ofthe Criminal Procedure
Code mean“ any offence''1 which waseither directlyor indirectlythe"
subject of the inquiry or trial."
facts appear from the judgment.
Abdul Coder, for the applicant.—The inquiry was not concluded.It was""*abandoned. The ‘ Magistrate had, therefore, no jurisdiction tomake an order for the disposal of property under section 413 (1) ofthe Criminal Procedure Code. The party in possession" is entitledto have the articles returned. In re Detiiden DurgaprasadKathm v.Meera,2 Weerasinghe Mudalige Nona v. 8. L. 'Moha/madu Lebbe et al.3Bose’s Digest (1914) 138—Kedaf Biswas v. Mathura Nath Mitkra. 4
i (1897) 22 Bom. 844.9 (1899) Kcch’s Reports 51.
(1898) 3 N. L. R. 90.4 18 C. W. N. 959.( 415 )
The Magistrate does not clearly hold that the property is stolenproperty. Moreover, the order in question was made in a connectedbut distinct case. The glue in question was produced as an exhibitin this case, and as the inquiry was not proceeded with the Court wasnot in a position to hold that any offence was committed regardingit. In most of the local decisions there ^was a clear finding that thearticles were stolen, and in such cases the Supreme Court upheld theorder for disposal of property under section 413 (1). The discretionof a Magistrate is open* to correction by a higher Court. In rePandharinath Pundlih Bevankar.1
Canakaratne, for the respondent.—The acquittal or discharge ofa person charged with receiving stolen property is not a bar to themaking of an order like this. If the Magistrate comes to the con-clusion that the property was stolen, he may order it to be deliveredbo the owner. The section confers on him a wide discretion, and hemay, therefore, order the property to be retained in Court. Thisvery glue was produced before the Court in the connected case, andthere was sufficient evidence for the Magistrate to hold that anoffence had' been committed regarding it. 'Empress v. NUamberBabu,2 Kanaga Sabai v. :Bamamani,3 Podi Sinho v. Meya.4
Abdul Gader, in reply.—In all these cases the order was made atthe conclusion of the trial or inquiry. In Podi, Sinho v. Meya 4 therewas a charge framed. Such was not the case here, and the inquirycannot ^be said to have been concluded as required by section 413 (1).The words “ any offence ” in section 413 means the offence whichis the subject of a particular inquiry or trial.
September 30, 1918. Bebtbam. C.J.—
This is an application to revise an order made by the Magistratein case No. 16,006 with regard to one hundred and eighty-two poundsof glue produced as an exhibit in that case. The order ofthe Magistrate was in effect that the glue so produced in that caseshould be detained in Court pending the result of a civil action.There appears to be no doubt that, under section 413 of the Criminal-Procedure Code, a Magistrate would have jurisdiction to make suchan order. Where* property has been stolen, and the charge is madeagainst the person for receiving the property so stolen, even thoughthe Magistrate acquits the person charged with so receiving it, hemay, if he comes to the conclusion that the property actually wasstolen, order it to be delivered to the person from whom it wastaken, and disregard the possession of the receiver. That appearsto be established by an Indian case handed up to ine by Mr.Canakaratne—Empress v. Nilamber Babu,2 See also Kanaga Sabai
.■ r*
(1915) 40 Bom. 186.3 (1910) I. L. R. 34 Mad. 94.
(1879) I. L. R. 2 AU. 276.4 (1900) 4 N. L. R. 80.
1913.
Silva v.Hamid
( 416 )
1818.
Bertram
O.J.
Silva y,Hamid
v. Mamamani.1 If, therefore, a Magistrate can make an orderignoring the possession of the person acquitted to this extent, hecan obviously make *a less conclusive order, that is to say, he canorder the property to be retained in Court.
The only difficulty I have in the matter is that the offence, whichappeared to the Magistrate to have been committed with regard tothe one hundred and eighty-two pounds of glue, was not an offencewhich was the subject-matter of the trial which was concluded,and in which the one hundred and (eighty-two pounds of glue wasproduced. The Magistrate formed the conclusion that that onehundred and eighty-two pounds of glue was the subject of anotheroffence, into which he was not at the time inquiring, and I haveto determine whether it is competent to him, under section 413,to make an order for the disposal of property in* regard to whichit appears incidentally that an offence was committed, though notthe offence then being tried. I think that I should be straining thesection if I sanctioned this. It is impossible for a Magistrate toform any adequate opinion on the subject, unless he has the witnessesto this incidental offence before him and hears what has to be saidby the persons interested. I think the words “ any offence ” insection 413 must mean any offence which was, either directly otindirectly, the subject of the inquiry or trial. It appears to pie,therefore, that section 413 does not apply to the present case, andthat any order the Magistrate made cannot be considered as havingbeen made under the powers of that section.
We have, therefore, to consider what is the general position ofthe Magistrate, apart from that section, with regard to propertyproduced in Court. The property is in the custody of his Court,and he must make some order in regard to it. Various cases havebeen cited to show that in such a case the only proper course forthe Magistrate to adopt is to return the property to the person inwhose possession it was. It appears to have been held that it isnot right for him to direct that the property should remain in thecustody of the Court pending a civil trial. That has been laid downin this court in the case of Katha v. Meera.2 It has also beensimilarly held in an Indian case—In re * Deviden Durgaprasad,3There the Court said that if the Magistrate came, to the conclusionthat the case did not come within section 517 of the Indian Code,which corresponds to section 413 of our Code, the only order he canpass is to restore the previous possession. I think I should not bejustified in disregarding these two authorities, and that, therefore,the order of the Magistrate should be revised, and that the order ofthis Court should be that the glue*in question should be restored tothe possession of the applicant in the present case.
Set aside.
1 (1910) 7. L. R, 34 Mad. 94.8 {1898) 3 N. L. R. 90•
(1897) 22 Bom. 844.