C. Jagannadhacharyulu, J.C.
1. This is a criminal revision petition filed by Khuraijam Jugeswar Singh of Terakeithel Yambem Leikai and Wahengbam Nodiachand Singh of Wahengbam teikai respectively under Section 439 read with Section 561-A Cr.P.C. to set aside the order of Shri C. Upendra Singh, Magistrate First Class Imphal dated 2.4.1966 passed in F.I.R. Case No. 281 (11) 65 of Lemphel Police Station starting Criminal Misc. Case No. 42 of 1966 to decide the dispute as to who is entitled to possession of the seized cow.
2. The case of the petitioner is as follows:
(a) The first respondent Chanambam Ongbi Tamu Devi of Uripok Khoisnam Leikai gave a report (vide Ext. All) dated 18.11.1965 to the Circle Inspector of the Police Station, Lamphel, alleging that she lost a cow about 2 weeks prior to 18.11.1965. that on 18.11.1965 she learnt that the cow was in possession of the first petitioner Khuraijam Jugeswar Singh, and that when she asked him to return it he refused to do so stating that he purchased it from the second petitioner W. Nodiachand Singh. The Police arrested the first petitioner and seized the cow from his possession. The Police produced the first petitioner before Shri C. Upendra Singh, Magistrate First Class, who remanded him on 18.11.1965. The second petitioner filed Criminal Misc. Case No. 73 of 1965 to allow him to keep the cow in his custody during the pendency of the case. The first respondent also filed a similar petition (to permit her to keep the cow in her possession) under the oral direction of Shri C. Upendra Singh, Magistrate First Class. The latter forwarded her petition to the Police Station for report, without registering it. The Police submitted a report that the second petitioner might have the custody of the cow. The Magistrate added the first respondent as a party to Criminal Misc. Case No. 73 of 1985 and did not deliver possession of the cow to the 2nd petitioner.
(b) Criminal Misc. Case No. 73 of 1965 underwent a number of adjournments. It was posted to 8.12.1965. The second petitioner filed a petition as per Ext. A/2, enclosing a medical certificate (vide Ext. A/3) for adjournment. The Magistrate adjourned the case to 1.1.1966 and the Bench Clerk gave a slip to the petitioner mentioning 1.1.1966 as the date to which the case was adjourned (vide Ext. A/4). But, the Magistrate disposed of the case on 10.12.1965, as per Ext. A/6, allowing the first respondent to keep the seized cow in her possession, on her executing a bond for Rupees 500/- with a surety for a like amount undertaking that she would produce the cow into the Court whenever directed by the Court.
(c) On 1.1.1966, the second petitioner appeared in the Court of the Magistrate. But, to his surprise he was told that the case was already disposed of on 10.12.1965 and that the first respondent was allowed to be in possession of the cow.
(d) On 31.12.1965, the investigating Officer submitted a final report, as per Ext. A/7 under Section 173 Cr.P.C. stating that the dispute was of a civil nature, that the first petitioner should be discharged from the liability of the bail bond and that the cow should be returned to him. The Magistrate passed an order on 2.4.1966 as per Ext A/8 acting upon the report of the investigating officer and discharged the first petitioner. But. instead of passive an order for returning the cow to him, the Magistrate passed an order that he decided to start a Criminal Misc. Case, under Section 523 Cr.P.C. to determine the question as to who is entitled to the possession of the cow.
(e) Subsequently, the Magistrate addressed the Sessions Judge Manipur to transfer the case from his file to the file of another Magistrate, as the first respondent is closely related to him. The Sessions Judge transferred the case to the Court of the 3rd Munsiff-Magistrate and Judicial Misc. Case No. 42 of 1966. started by Shri C. Upendra Singh, Munsiff-Magistrate (II). is thus now pending in the Court of the Munsiff-Magistrate (III).
3. The contention of the petitioners' counsel that the conduct of Shri C. Upendra Singh, in disposing of the case on 10.12.1965, though the Bench Clerk noted down the date of enquiry as 1.1.1966 is really suspicious and that, in any event, the impugned order is illegal is correct. For, the order dated 2.4.1966 in question, as per Ext. A/8, itself shows that the Magistrate, who was admittedly related to the first respondent did not pass any bona fide order. Under Section 173 Cr.P.C. it is open to the Magistrate to accept the Police report or not. If he accepts it, then he is to cancel the case. But, if he does not, all that he can do is to make a note that he does not accept the Police report. But, his order, does not prejudice either party, and the aggrieved party can always agitate the J matter further, because it is not a judicial order. Vide also Harbir Singh v. State AIR 1952 Pepsu 29. The proper order, to be passed in this case on the seizure of the cow in question by the Police, suspected to have been stolen, is one that should be passed under Section 523 Cr.P.C. It runs as follows:
523. Procedure by Police upon seizure of property taken under Section 51 or stolen. - (1) The seizure by any Police Officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. Procedure where owner of property seized unknown-(2) If the person so entitled is unknown, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
4. Thus, under Sub-section (1), the Magistrate should make such order as he thinks fit respecting the disposal of the property or delivery of it to the person entitled to the possession thereof and if such a person cannot be ascertained, he should pass such order as he thinks fit, respecting the custody and production of the property. Under Sub-section (2) the proper order to be passed, where the person entitled to the possession of the property is known, is that the property should be delivered to him on such conditions which the Magistrate may impose. But, when such a person is not known, then the Magistrate may detain the property and shall issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish the same within six months from the date of the proclamation. In the present case, the cow was seized from the first petitioner. But, the Police reported that no offence was made out and that matter was of a civil dispute. So, it was the plain duty of Shri. C. Upendra Singh to have directed the return of the cow to the first petitioner, from whom fit was seized. The proposition of law that the property must be returned to the person, from whom it had been seized, unless his possession was unlawful, is a well-established one. The person, from whose possession the property was seized and when he is not found to have committed any offence such as would render his possession unlawful, is the proper person entitled to possession. The Magistrate is not a Civil Court and has no power to decide any dispute about the title to the property. Section 523, Cr.P.C. does not authorize a Magistrate to decide which party is the rightful owner of the property. His enquiry is limited to finding which party is entitled to the possession of the property. So, it follows that when once the Magistrate ascertains the person, from whose possession the property was seized and whose possession was not unlawful, then the Magistrate must hold him to be entitled to the possession of the same. Vide also in this connection Purshottam Das Banarsidas v. State : AIR1952All470 , Koijam Tombi Singh v. Chongtham Pisak Singh AIR 1952 Manipur 6, and Har Deo v. State . But, Shri C. Upendra Singh Magistrate First Class, totally disregarded the provisions of Section 523 Cr.P.C. and registered a separate Misc. Case No. 32 of 1966 to determine the alleged real ownership of the cow. This order of Shri C. Upendra Singh, Magistrate First Class, passed by him before addressing the Sessions Judge to transfer the case from his file to the Court of another Munsiff-Magistrate allowing the first respondent to continue to be in possession of the cow is mala fide and illegal and is liable to be quashed. It is such an order which undermines the prestige of the judiciary in the eyes of the public.
5. The respondents' counsel agreed that the above order in question is illegal. But, he argued that the cow died on 18.5.1966 at about 5.00 p.m., that its calf strayed away, that the first respondent filed a report in the Court of Munsiff-Magistrate (III) on 19.5.1966 to that effect and that, therefore, this petition should be dismissed The petitioners' counsel denied the death of the cow or the straying away of the calf. These are the matters for enquiry by the Munsiff-Magistrate (III).
6. In the result, the revision petition is allowed and the order of Shri C. Upendra Singh, Magistrate First Class, registering the Misc. Case for the purpose of determination of the ownership of the cow is set aside. The Munsiff-Magistrate (III) should confine himself in the enquiry before him, about the alleged death of the cow and the missing of its calf. If he finds that the cow is alive, he should direct the delivery of the same to the first petitioner. If he finds that the calf did not stray away, he should order delivery of it to the first petitioner. But, if he finds that the allegations of the first respondent are true, then the only order he should pass is to dismiss the petition before him, directing the parties to seek their remedies, if any, in a Civil Court of law.