AMINA BEWA Vs. DUKHIMONI

JUDGEMENT

(1.) This is a petition for revision of an order of the Sub-divisional Magistrate of Malda whereby a cow and a calf were directed to be made over to the opposite party Dukhimoni Dasi.

(2.) The petitioner Amina Bewa claimed to have purchased a cow from one Sewpujan. Sometime in June, 1955, she missed the animal which was then carrying. There was a general diary entry made at her instance on the 25th July, 1955, detailing the circumstances under which the animal had been found missing. After some time however it returned to Amina Bewa, and the cow was delivered of a calf. On the 25th Dec., 1955, Dukhimoni lodged an information with the police stating that she had lost her cow. This was followed on the 4th Dec., 1955, by a petition to Court asking for a search warrant for recovery of the cow from the possession of the petitioner. A description of the animal was given and it was stated that she might be recovered without delay lest, it was feared, she be sold to some other person. On the 6th Dec., 1955, a search warrant was issued on the basis of this petition. The warrant was under Sec. 98 of the Code of Criminal Procedure. In pursuance of the search warrant, the police seized the cow and the calf from the custody of the petitioner, and the animals were kept in neutral custody pending conclusion of the enquiry which the Magistrate thereafter held. At this enquiry witnesses were examined on behalf of the two contending parties, Amina Bewa and Dukhimoni Dasi, each claiming ownership of the animals. Presumably this enquiry was held under Sec. 523 of the Code of Criminal Procedure. The learned Magistrate after hearing some evidence came to the conclusion that the cow and the calf belonged to the opposite party, and directed the animals to be made over to her. The present Rule has been issued to show cause why this order of the learned Magistrate, dated the 5th June, 1956, should not be set aside.

(3.) There cannot be any doubt that the proceedings before the Magistrate commenced with the issue of the search warrant under Sec. 98 of the Code of Criminal Procedure. The warrant in its turn was issued in consequence of a petition which had been filed before the Magistrate alleging merely the fact that the animals were to be found in the petitioner's house. An apprehension was merely expressed that if speedy action was not taken the cow might be disposed of. It is to be observed that not the slightest allegation was made against the petitioner that she had committed theft. It was nowhere suggested that the petitioner's place was used as a place of deposit of stolen property. That being so, Sec. 98 of the Code of Criminal Procedure could have, in my view, no application to the facts of this case. That section provides that when one or the other of the Magistrates named in the section, has information on which he is prepared to act that a place is used for the deposit or sale of stolen property or for deposit or sale or manufacture of forged documents, false seals, counterfeit stamps or coins or instruments for making them, the Magistrate may issue his warrant authorising any police officer above the rank of constable to take possession of the property and to have such property taken before a Magistrate. The essential requirement, therefore, is that there must be some allegation or information which, the Magistrate believes that a. particular place is used for the deposit or sale of stolen property or for manufacture of forged documents, false seals, counterfeit stamps etc. No warrant, in my view, can therefore, issue unless the essential requirements of Sec. 98 are fulfilled.