T.N.R. Tirumalpad, J.C.
1. This is a petition under Sections 439 and 561-A, Cr. P.C. for quashing the proceedings made by the First Class Magistrate, Bishenpur, in Criminal Miscellaneous Case No. 86 of 1959.
2. The petitioner herein purchased 3 buffaloes from one Oinam Tomba Singh on 27-5-1959 under Ext. B/2. On 9-7-1959, he made an oral complaint to the O/C., Bishenpur Police Station stating that he had kept the buffaloes in charge of Oinam Tomba Singh after purchase, that on 6-7-1959 he demanded the buffaloes from the said Tomba Singly that on receiving an' evasive answer he got suspicious and he made a search for the buffaloes and found two of them in the residence of one Ibopisak Singh, who on enquiry stated that the buffaloes were kept with him by the respondent Budha Singh and that on questioning, Budha Singh told the petitioner that the two buffaloes were sold to him by Oinam Tomba Singh. He therefore prayed for action against the said Tomba Singh.
3. The Police registered the case under Section. 406, I.P.C. as F.I.R. No. 54 (7) 59. In the course of the investigation, the A. S. I. of Bishenpur Police Station seized the two buffaloes from Ibopisak Singh on 10-7-1959. We have to take it that this seizure was effected by the A. S. I, under Section 550, Cr. P.C. as property found under circumstances which created suspicion of the commission of an offence. When such a seizure was made by a Police Officer his duty was to report the seizure forthwith to the Magistrate under Section 523. Cr. P.C., but this A. S. I. Bhubon Singh of Bishenpur Police Station probably knew only of his rights under the Criminal Procedure Code as a Police Officer, but did not know of his duties under the same Code.
What he did was to entrust the seized buffaloes quite unauthorisedly to the petitioner herein pending investigation in the complaint filed by him. It was highly wrong on the part of the A. S. I. to have taken the law into his own hands and to have disposed of the property seized by him without any orders of a Magistrate and without even reporting the seizure to a Magistrate.
4. On 20-7-1959, Budha Singh, the respondent herein filed a petition before the S. D. C., Bishenpur, complaining of the action taken by the said A. S. I. and requesting that the two buffaloes may be kept in the custody of the respondent or in the Police pound at Imphal till the disposal of the criminal case filed by the petitioner, No action was taken On that petition. He again filed another petition oil 1-8-1959 under Section 523, Cr. P.C. requesting action.
Thereupon the Peshkar of the Magistrate requested the O/C. Bishenpur Police Station to enlighten the Court whether orders of a Magistrate were obtained by the Police in keeping the seized buffaloes in the custody of the petitioner. The reply of the A. S. I. was that the buffaloes were seized in connection with the investigation of the case F.I.R. 54 (7) 59 B. P. S. and kept in the Custody of the petitioner in the discretion of the I. O. and that no order of the Magistrate need be obtained in such cases.
One is simply surprised at this reply of the Police Officer which clearly showed that he did not know his duties and responsibilities under the Criminal Procedure Code. The Police have no discretion in the matter of the property seized under Section 550, Cri. P.C. and Section 523 provides that the seizure shall be forthwith reported to a Magistrate and the property can be disposed of only in accordance with the orders of the Magistrate.
It would be high-handedness on the part of the Police if they dispossess persons of property by seizure under Section 550 and entrust it to the complainant pending investigation of the complaint, which will amount to disposal of the property without the orders of a Magistrate. There is no evidence that the Police Officer concerned even took any security bond from the petitioner when entrusting the buffaloes to him. In any case, no such security bond was forwarded to the Magistrate's Court.
It is necessary that there should be an enquiry by a superior Officer of the Police into the conduct of this Police Officer Bhubon Singh. It is also necessary that proper instructions should be issued by the Inspector-General of Police to his subordinates regarding the duties and responsibilities of the Police when they seize property under Section 550, Cr. P.C. A copy of this order will be sent to the I. G. P. for necessary action.
5. The Magistrate held an enquiry under Section 523, Cr. P.C. and after taking oral evidence adduced by the respondent and the petitioner ho ordered on 28-12-1959 that the buffaloes should be handed over to the custody of the respondent on his executing a security bond for Rs. 1,000/-. He has written an elaborate order discussing as to the rights of the opposing parties to the possession of the buffaloes. It is against that order that the present revision petition is filed.
6. During the pendency of the petition filed by the respondent under Section 523, the petitioner herein filed an application on 21-12-1959 stating that he has filed T. S. No. 157 of 1959 in the Court of the Munsiff, Imphal for declaration of his ownership of the buffaloes and that in Miscellaneous Case No. 162 of 1959, the Munsiff has passed an injunction order on 12-12-1959 to maintain the status quo regarding the buffaloes till the next date of the hearing of the suit, namely, 18-1-1960.
The petitioner therefore prayed that further proceedings under Section 523 may be stayed pending the civil case, I find that the petitioner had also filed a certified copy of the order of the Munsiff in the Magistrate's' Court. The learned Magistrate passed an order on the petition to file it in the records stating that the petition was rejected. From his order sheet dated 21-12-1959, I find that the Magistrate has stated that he did not find the grounds stated by the petitioner to be sufficient or reasonable.
7. Again, on 24-12-1959, the petitioner filed another petition for stay under Section 344, Cr. P.C. on the ground that he was in custody of the property and the property was the subject-matter of a civil suit and that under the circumstances the proceedings under Section 523 should not go on. The order of the Magistrate on this petition was simply to file it in the records.
In the order sheet dated 24-12-1959, the Magistrate stated that the argument advanced by the petitioner was not convincing and so he would record evidence under Section 523, Cr. P.C. Thus in spite of the two petitions, the Magistrate went on with the enquiry and directed, contrary to the order of the Civil Court on 12-12-1959 that status quo should be preserved, that the buffaloes should be handed over to the respondent.
Thus, there are now two conflicting orders, one on 12-12-1959 by the Munsiff in the civil case directing that the status quo should be preserved which meant that the petitioner was to continue in possession until further orders of the Civil Court and the second order on 28-12-1959 by the Criminal Court that possession should be given to the respondent. The question now is whether the order of the Magistrate should be allowed to stand as it conflicts with the order of the Civil Court.
9. There can be no doubt that the Magistrate was in error in having proceeded with the enquiry when it was proved before him that the Civil Court was seized of the matter and had passed an interim order regarding the custody of the property. The question to be decided by the Magistrate under Section 523 wag as to the person entitled to the possession of the buffaloes. Actually Section 523 is not the proper section to be applied in the present case.
There was a criminal case pending in respect of this property and the question before the Magistrate was as to who should have the custody of the property pending the enquiry. The matter had to be dealt with under Section 516-A and not under Section 523. I find that the respondent's petition was itself filed in the pending criminal case No. 54 (7) 59. The Magistrate should not have treated the petition as a separate Cri. Misc. Case No. 86/59, under Section 523, but should have dealt with it in Criminal Case No. 54(7) 59 under Section 516-A.
10. The petitioner had produced a document of sale dated 27-5-1959 from Oinam Tomba Singh. The respondent had produced another sale deed dated 20-6-1959 from the same Tomba Singh. The dispute was whether the two sale deeds were in respect of the same buffaloes. It was really a matter for a Civil Court to deckle. When no civil suit is filed by either of the parties to establish the ownership of the buffaloes, the Magistrate's Court could have proceeded under Section 5.I.G.A. and decided as to who should have the custody of the buffaloes pending the enquiry in Criminal Case No. 54 (7) 59.
Such proceedings in the Magistrate's Court are summary proceedings and will be subject to the order of a Civil Court regarding ownership and right to possession. When, therefore, one of the parties has taken the matter to the Civil Court and the Civil Court has passed an order regarding the interim possession of the property pending the civil suit and the fact is brought to the notice of the Magistrate, the Magistrate's Court ought to stay further proceedings in his Court.
11. It is necessary that the Criminal Courts and Civil Courts should understand the respective spheres in which they have to function. The summary powers to order custody and possession of property given to Magistrates, should not be used when the Civil Court is seized of the matter to decide the question of ownership and right to possession, and has passed an order regarding such custody or possession. It is sheer waste of time oh the part of the Magistrate to hold such an enquiry after a Civil Court is seized of the matter and has passed an order regarding interim custody.
The Magistrate did not consider the situation he would create if he passed any order which was in conflict with that of the Civil Court. The Magistrate should realise that ownership and right to possession of property are matters strictly within the sphere of the Civil Court to decide and any order passed by him in the Criminal Court will be only subject to the final orders of the Civil Court.
12. All the parties are before the Civil Court. The petitioner is the plaintiff. O. Tomba Singh, Budha Singh (respondent) and Ibo Singh, from whose possession the buffaloes were seized by the Police are all defendants in the suit. It is, therefore, the Civil Court who should decide as to the ownership and right to possession of the buffaloes. A reading of the order of the Magistrate would show that he himself felt that to arrive at the truth of the matter required expert knowledge and was a lengthy process which was not the task of a Criminal Court. It was within the province of a Civil Court. Having realised the position, one fails to understand why the Magistrate thought it necessary to continue the enquiry and pass an order in conflict with the one passed by the Civil Court. Such a conflicting order cannot be allowed to stand.
13. This is therefore a fit case where I should interfere under Sections 439 and 561-A, Cr. P.C. The proceedings of the Magistrate in Criminal Misc. Case No. 86 of 1959 are quashed and the parties are directed to abide by the order of the Civil Court in respect of the custody of the buffaloes until the disposal of the civil case.