MOHAN SINGH Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge. Bharatpur, recommending that the order of Munsiff Magistrate, Bbaratpur dated the 31st January, 1963, for recording evidence before passing order as to the disposal of the stolen property consisting of a pair of oxen, be set aside and that the Munsiff-Magistra'e be directed to return the pair of oxen to the petitioner, Mohan Singh.

(2.) THE facts which have given rise to this reference may be briefly stated as follows--The opposite party Samla lodged first information report with the Police Station. Sewar, on 29th of May, 1962, accusing the petitioner Mohansingh of an offence of theft in respect of a pair of oxen. A case against the petitioner for an abence under Section 380, Indian Penal Code, was registered by the police and investigation was commenced After the completion of the investigation the police submitted a final report in the case on 1st November, 1962 saying that no offence was committed by the accused. On 3rd November, 1962 the petitioner Mohan Singh submitted an application before tile Munsiff-Magistrate praying for the return of the pair of oxen to him oil the ground that the pair of oxen was taken from his possession On the application of the accused a notice was directed to issued to the complainant to show cause why the property be not returned to the accused-petitioner. It may be stated here that even before receipt of the negative final police report the complainant had filed a complaint against the accused-petitioner accusing him of an offence under Section 380, Indian Penal Code. The Magistrate had taken cognizance of that report and had ordered a preliminary enquiry under Section 202, Criminal P. C. Consequently, when the complainant received notice of the petition of the accused-petitioner praying for the return of the pair of oxen, he opposed the delivery of the pair of oxen to the accused. The Magistrate by his order dated the 3lst of January, 1963, proceeded to record evidence of the parties before passing any order for the disposal of the pair of oxen.

(3.) THE accused-petitioner went in revision to the Court of Sessions Judge, Bharatpur. The Sessions Judge has expressed the opinion that an enquiry was not at all called for in the facts and the circum-stances of this case. According to him Sub-section, (1) of Section 523, Criminal P. C. does not contemplate an enquiry and the Magistrate is competent to order delivery of the property to the person entitled to the possession thereof. Sub-section (2) of Section 523 contemplates an enquiry only when the person entitled to possession is not known. The Sessions Judge appears to have taken the view that since the possession of the pair of the oxen was taken from the petitioner and since the police submitted a negative report, the person entitled to possession cannot be said to be unknown and, consequently, direction ought to have been made for the delivery of the property to the petitioner and that no enquiry was necessary.