KHURAIJAM JUGESWAR SINGH Vs. CHANABAM ONGBI TOMU DEVI

JUDGEMENT

(1.) THIS is a criminal revision petition filed by Khuraijam Jugeswar Singh of Terakeithel Yambem Leikai and Wahengbam Nodiachand Singh of Wahengbam teikai respectively under Section 439 read with Section 561 -A Cr.P.C. to set aside the order of Shri C. Upendra Singh, Magistrate First Class Imphal dated 2.4.1966 passed in F.I.R. Case No. 281 (11) 65 of Lemphel Police Station starting Criminal Misc. Case No. 42 of 1966 to decide the dispute as to who is entitled to possession of the seized cow.

(2.) THE case of the petitioner is as follows:

(3.) THUS , under Sub -section (1), the Magistrate should make such order as he thinks fit respecting the disposal of the property or delivery of it to the person entitled to the possession thereof and if such a person cannot be ascertained, he should pass such order as he thinks fit, respecting the custody and production of the property. Under Sub -section (2) the proper order to be passed, where the person entitled to the possession of the property is known, is that the property should be delivered to him on such conditions which the Magistrate may impose. But, when such a person is not known, then the Magistrate may detain the property and shall issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish the same within six months from the date of the proclamation. In the present case, the cow was seized from the first petitioner. But, the Police reported that no offence was made out and that matter was of a civil dispute. So, it was the plain duty of Shri. C. Upendra Singh to have directed the return of the cow to the first petitioner, from whom fit was seized. The proposition of law that the property must be returned to the person, from whom it had been seized, unless his possession was unlawful, is a well -established one. The person, from whose possession the property was seized and when he is not found to have committed any offence such as would render his possession unlawful, is the proper person entitled to possession. The Magistrate is not a Civil Court and has no power to decide any dispute about the title to the property. Section 523, Cr.P.C. does not authorize a Magistrate to decide which party is the rightful owner of the property. His enquiry is limited to finding which party is entitled to the possession of the property. So, it follows that when once the Magistrate ascertains the person, from whose possession the property was seized and whose possession was not unlawful, then the Magistrate must hold him to be entitled to the possession of the same. Vide also in this connection Purshottam Das Banarsidas v. State : AIR1952All470 , Koijam Tombi Singh v. Chongtham Pisak Singh AIR 1952 Manipur 6, and Har Deo v. State . But, Shri C. Upendra Singh Magistrate First Class, totally disregarded the provisions of Section 523 Cr.P.C. and registered a separate Misc. Case No. 32 of 1966 to determine the alleged real ownership of the cow. This order of Shri C. Upendra Singh, Magistrate First Class, passed by him before addressing the Sessions Judge to transfer the case from his file to the Court of another Munsiff -Magistrate allowing the first respondent to continue to be in possession of the cow is mala fide and illegal and is liable to be quashed. It is such an order which undermines the prestige of the judiciary in the eyes of the public.