HIMANGSHU KUMAR DAS Vs. SOBHAN SHEIKH

JUDGEMENT

(1.) This Rule is directed against an order passed by the learned . Magistrate Sri K. Naskar in the Malkhana Register for return of the seized property consisting of a number of burnt and unburnt bricks to the person from whose possession the same had been seized. The petitioner Himangshu Kumar Das has a brick kiln and the bricks manufactured in his kiln bear the mark 'J.M.C." Some burnt and unburnt bricks belonging to the petitioner were stolen, and on a search in the village the petitioner found such bricks bearing the mark "J.M.C." in the house of opposite parties Nos. 3 and 4, Faraj Sheikh and Jeher Ali Sheikh, According to the petitioner, they admitted that they had taken away the bricks in question from the kiln of the petitioner and wanted to be excused for taking the bricks without the permission of the petitioner. The petitioner started a case and the police submitted a charge-sheet not only against Faraj and Jeher Ali but also against Sobhan and Abedin Sheikh, i.e., against all the four opposite parties. At the trial which was held by Sri K. Naskar, Magistrate, 1st Class, he considered that the evidence of identity of the bricks seized from the house of the accused as bricks of the complainant's kiln was not sufficient, and accordingly the learned Magistrate passed a judgment of acquittal on the 31st October 1958. On that date no order was passed regarding the bricks seized. Subsequently, as the Judge-in-charge of the Malkhana Register the learned Magistrate passed the order that the goods be returned to the person from whom they were seized.

(2.) Mr. Das Gupta appearing for the complainant petitioner has urged that since the order as to the disposal of the property was not passed along with the judgment, the learned Magistrate should have given notice to the parties before he made the order of disposal as to the seized property. In support of his contention Mr. Das Gupta has referred to a ruling of the Madras High Court in A. Rama Krishnayya v. D. Seethamma, 41 Cri LJ 275: (AIR 1939 Mad 916), where it was held that an order disposing of the property under Section 517, Cr. P. C. not on the application of the parties or after notice to the party but in the Malkhana Register probably at the instance of the office, cannot be upheld. It is also in accordance with the conception of natural justice that the parties should have notice before the order of disposal is made, so that they can press their respective claims. If, of course, an order of disposal is made in the judgment itself the aggrieved party can forthwith prefer an appeal. If the order is made in the Malkhana Register the aggrieved party may be in ignorance for long and may not have the opportunity of taking legal remedy in time. In the circumstances it must be held that it is not a proper procedure to pass an order in the Malkhana Register without notice to the parties.

(3.) Accordingly, the order of the learned Magistrate dated the 9th November 1958 passed in the Malkhana Register regarding the disposal of the bricks seized is set aside, and the case is sent back to him for disposal according to law after notice to both parties. The Rule is disposed of accordingly.