J.N. Datta, J.C.
1. This is a reference under Section 438 of the Cr.P. Code by the learned Sessions Judge of Manipur, recommending that the order of the A.D.M., Manipur, dated 18-5-1956, passed, presumably under the provisions of Sub-section (1) of Section 523 of the Cr. P. Code, and directing that the amount of Rs. 1,011/- seized by the Police from the petitioner Sagolsem Babu Singh, ought to be paid to the first four respondents, should be set aside and the amount restored to the petitioner. It is a clear case where all concerned went wrong and the recommendation of the learned Sessions Judge must be accepted.
2. The question arose in this way. The petitioner is admittedly the Umang Lal Selungba of the Deity Irum Ningthou and the Claims Department issued a cheque for Rs, 1,011/- in his name, which became payable to the Deity on account of compensation for some land of the Deity. The petitioner encashed the cheque on 22-3-56.
3. On 1-4-56 the four respondents as representing the villagers made a report at the Police Station that after receiving the amount the petitioner had concealed himself and thereby committed the offence of criminal breach of trust punishable under Section 406 or the I.P.C. It appears that the Police thereupon went to the house of the petitioner, and on his production of the amount seized the amount. Thereafter they submitted a finial report under Section 173 Cr. P. C to the D.M., Manipur. that the case though true could not be prosecuted for want of sufficient evidence, which resulted in the impugned order by the A.D.M.
4. In the circumstances narrated above it is difficult to see how it could be said that the petitioner had committed criminal breach of trust and the case was true and the learned A.D.M. appears to have fallen into the same error and to have been influenced by it into passing an order that the amount be paid to the complainants (respondents).
5. A Magistrate, if he decides to deliver the property to a person is bound under Section 523 (1) to deliver it to the person entitled to possession; and on the material before him there was obviously no room to come to the conclusion that the complainants were the persons entitled to the money. The petitioner who is the Shebait of the Deity, was paid the money by the Claims Department, and in that capacity, he had every right to retain the money.
The discretion given under the section has to be exercised judicially and in the absence of evidence as to ownership the property should be returned to the person from whom it was taken. There is nothing to show that the learned A.D.M. held any enquiry on the point or even heard the parties concerned. The decision taken by him was thus arbitrary and cannot be sustained. I have already shown that in the circumstances appearing, there was nothing which would have justified the view that the possession of the petitioner was unlawful.
6. The reference is therefore accepted. The order of the A.D.M., for returning the amount to the first four respondents is set aside with a direction that the amount be restored to the petitioner.