BHUPATI BAYEN Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order of the Sub-divisional Magistrate, Kandi, Murshidabad, by which he ordered the return of the seized paddy to one Hossain Reza, as prayed for by the Police by their report dated 23-1-1956. A preliminary point was taken by Mr. All who appeared on behalf of the complainant opposite party and his point was that this Rule was obtained without informing the Court that the customary period of limitation of sixty days had expired in the present case. It was, however, conceded by him later on that the period did not expire and the application was moved in time.

(2.) Hossain Reza lodged an information with the Police charging the petitioners with having committed offences under Sections 147, 148, 379 and 323 of the Indian Penal Code. His complaint was over the cutting of paddy forcibly from the field of the said Hossain Reza. It was further stated that the object of this noting was to dispossess Mowla Rakha Bibi from her unobstructed possession o the land. It appears that after due investigation the Police submitted final report No. 72 dated 29-12-1956, by which the Police stated that the witnesses were panic-stricken and there was no good submitting a charge-sheet in the case. In the same report the Police recommended that the paddy and [odder be returned to the said Hossain Reza, a bhagidar of the plots. The report was forwarded on the 23rd of January, 1957, to the Sub-divisional Magistrate of Kandi, Murshidabad, with the observation "grounds of suspicion are not treasonable; alamats may be disposed of as prayed for." The learned Magistrate accordingly on 25-1-1957, passed the order as prayed for by the Police. It is against this order that the present Rule is directed.

(3.) In my judgment, the order of the learned Magistrate cannot be sustained. The mere fact that a first information was lodged suspecting some persons cannot entitle a Magistrate to pass an order of disposal of properties in favour of the informant, when investigation of the case resulted in a final report. An action under Section 517 of the Code of Criminal Procedure presupposes the conclusion of an enquiry or trial in a criminal Court. Section 523 of the Code refers to a seizure by any Police Officer of property taken under Section 51 of the Code of property alleged or suspected to have been stolen or found under circumstances which create a reasonable suspicion of the commission of an offence. Mr. Ali has cited two cases before me in support of his contention that in the present case Section 523 of the Code was applicable. He referred to the decision in the case of Sulleman Haji Ellias v. Emperor, AIR 1942 Sind 89, where it was held that the order under Section 523 could be passed on the materials (before the Magistrate without any independent enquiry regarding ownership of the property. Section 523 provides for an enquiry only in the case where the person entitled to possession is unknown. Mr. Ali also relied upon the decision of the Lahore High Court in the case of Ghulam Ali v. Emperor, AIR 1945 Lah 47, where it was said that from a strict reading of See. 523 it was clear that the order could be passed not on the application of the party but on a report by the Police.