HUSENSHA RAHIMANSHA Vs. MASHAKSHA MUJAFAESHA

JUDGEMENT

(1.) SECTION 523 of the Criminal Procedure Code invests a Magistrate acting under it with the power to make such order as he thinks fit respecting the disposal of the property or its delivery to the person entitled to its possession. There is no order respecting the disposal here, because the word " disposal " is something different from " delivery." Here what the Magistrate did was that he ordered the property, which was in possession of the Police, to be made over to the complainant. SECTION 523 says that a Magistrate may order its delivery, if bethinks fit, to the person entitled thereto. The Magistrate does not decide the question of title but merely decides the question of possession. The fact that the accused had been in possession of the property when the charge was made is not conclusive. The question is who is entitled to its possession. As was said in In re Ahmed Saheb (1888) Unrep. Cr. C. 365, in such a case the Magistrate is bound to institute an inquiry under this section before making any order touching the right, not of property, but of possession to the property seized by the Police. The Magistrate had a discretion governed by the provisions of SECTION 523. He had to apply his mind to the question as to who was entitled to the possession of the property, and with such materials as were placed before him, he came to the conclusion that the complainant was. We see no reason, under these circumstances, to interfere with the judicial discretion exercised by the Magistrate. We decline to interfere and direct that the record and proceedings be returned.