T.N.R. Tirumalpad, J.C.
1. This reference has been made regarding the order of the Second Class Magistrate, Dnarmanagar, passed Under Section 523 (2) Cr. v. C. directing the bullock seized by the Police to be handed over to the respondent Hari Kishore Bhattacnerjee, after holding that he was tiff rightful owner of the bullock.
2. The case arose as follows:
The respondent Hari Kishore bnattarcherjee, gave a report at the Dharmanagar Police Station on 18-5-60 that his bullock of unmixed black color, lame, thin and with a taw red hairs on the shoulder and having horns 8 or 9 fingers in length was missing since 12-5-60. The police maze a G. D. entry regarding the same. Hari Kishore Bhattacnerjee, again appeared before the Dharmanagar oiice station on 16-3-61 with bullock black in cooler having a lunar white paten on the fore-head and a mark on the right side of the belly with horns about 8 fingers in length and reported mat it was his bullock which was missing from by, Dot nap come back on 12-3-61, that he had detained it, but that one Pyan Nath of Radhapur had come demanding tried Bullocks saying that he had tactful it from the petitioner one Bhagabat Goor of Haltlong. Hari Kishore Bnattacnerjee saia that on account of this dispute, he was producing the duii in the Police station, fie A.S.I, one M. Roy, thereupon seized the bullock and made a G. U. entry that he had seized the same as unclaimed property and that he had nanded it over to the Government pound for custody.
3. On 17-3-61, the petitioner Bhagabat Goor filed a petition before the S.D.M., Dnarmanagar, claiming the bun. on Z2-3-61, the Under Section Dnarmanagar Police station, sent report to the Magistrate mentioning the circumstances as stated above by me) under which the bull was seized as unclaimed property and he prayed that action may be taken Under Section 523 (2) cr. P.C. for ascertainining the owner. Then the Magistrate registered a case Under Section 523 and held an enquiry after issuing notice to the petitioner and the respondent and he held that the respondent was the right Fiji owner of the bullock and he directed bullock to be handed over to him.
4. The sessions Judge, in his order of reference has now stated that the Magistrate should not have proceeded Under Section 523 Cr.PC as the conditions necessary for naming an enquiry thereunder did not exist and that the order passed by the Magistrate was, therefore, without junsdictiun. He has also pointed out that the Magistrate did not take. into account the fact that the description of the ducky given by the respondent on 18-5-60 did not at all tangy with the description of the bullock produced before that Police on; 16-3-1961 and that the order of the Magistrate holding the respondent to be the rightful owner of me bullock was clearly wrong.
5. I must say that the entire procedure adopted by tne1 police as well as by the Magistrate has been illegal, in this case. When the respondent appeared bettor the police Station on 15-3-61 with the said bun in question, the fonts? Officer should not have seized the bull as unclaimed property. It was not unclaimed property at all. The report to in Police by the respondent was that the bull belonged to turn and he also reported that one parry Nath was claiming tom bull as belonging to the petitioner Bhagabat Gourmets, the bull Was actually claimed by two parties. Under such circumstances the Police Ruttier should not have seized the bull as unclaimed property, in such a case, the owners of the bull has to be decided by a Civil court and the Police Whipcord should not have seized the bull and sent it to the Government pound. Instead, he should have directed the respondent to take back the bull and have the dispute relating to the bull settled In proper proceedings.
6. Again, when the petitioner moved the criminal court in the matter, the Magistrate had no jurisdiction to start proceedings Under Section 523 Cr. P. C Section b23 comes into play only when the seizure by a Police Officer of property taken Under Section 51 Cr.PC or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the Commission of any offence, is reported to a Magistrate. The report of the Police utricle dated 22t3-5l to the Magistrate did not disclose that the seizure was under the circumstances contemplated under 5 S23. The learned Magistrate should have therefore directed the Policy to return the property to the person from worn It was seized and he should not have started an enquiry Under Section 523 Cr.PC What the Magistrate purported to do in the Inquiry was actually to decide the civil dispute' relating to the bull. He had no jurisdiction to do so. The entire proceedings Under Section 523 taken by the Magistrate were, therefore, illegal.
7. the order of the Magistrate is, therefore, set aside and the proceedings before the Magistrate which were tagline without Jurisdiction are quashed. I find that the titlark has Been returned to the respondent by the Magistrate:, The bullock was seized from the respondent by the Fulcra arid hence it should be returned to the respondent and-fattens? I shall not interfere with that portion of me flraer. The dispute between the petitioner and the respondent regarding the ownership of the bullock is a matter, wince has to be decided In a Civil Court.