Ram Labhaya, J.
1. This ia an application under 5. 439, Criminal P.C. seeking to get aside the order of the learned Sessions Judge, h. A. D., dated I6fch May 1949, by which ho Bet aside the order of the 8. D. 0., Mangaldai, dated 12th May 1948, by which the S. D. 0. had ordered an elephant, a guddi (trappings) and a chain to be returned to tbe petitioner.
2. It appears that the petitioner had lodged a first information report on 25th January 1913 alleging that his elephant had been stolen by the accused-respondent. Three days later, on 28th January 1948, the elephant was seized by the police from the possession of the respondent. The police, however, did not send up a case against the respondent for theft, but instituted proceedings Under Section 117, Penal Code. On 26th April 1948, the S. D. 0. transferred the case Under Section 147, Penal Code, to the 2nd E. A. 0. for disposal. While this case waa pending before the 2nd E. A. 0., the police requested the 8. D. 0, to make an order confirming the custody of the property in the possession of the petitioner to whom the police had handed over the property during the course of the investigation. The S. D. 0. endorsed the report of the police by writing upon it the word 'Yes.' Against this order, the respondent appealed to the Sessions Court, and the learned Sessions Judge set aside the order of the S. D. 0 and awarded the custody of the property to the respondent. It is against this order that the petitioner has corns in revision.
3. It was contended by Mr. Barua on behalf of the petitioner that the order passed by the S. D. 0. on 12th May 1049, confirming the custody of the petitioner, was not subject to appeal, and that the learned Sessions Judge had, there-fore, no jurisdiction to set it aside, It was, however, pointed out to Mr. Barua that the order of the S. D. 0. dated 12th May 1948, cannot properly be regarded as an order passed Under Section 517, Criminal P.C. a3 no enquiry or trial had been concluded by him. Mr. Barua conceded that the order of the S. D. 0., dated 12th May 1948, was not an order under the provisions of 8. 617, Criminal P.C. but one Under Section 623 Criminal P.C. Mr. Sen for the respondent also agreed that the order of the S. D. 0. falls properly within the terms of Section 523, Criminal P.C.
4. We do not agree with the learned Sessions Judge that the 8. D. 0,, in passing the order dated 12th May 1048, acted without jurisdiction.
The S. D. 0. bad jurisdiction in the matter, as the polios had reported the seizure of the pro-party to him. Under Section 623 (1), it is the Magistrate to whom the seizure of the property is reported who can make 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. We do not think the order of the S. D. 0., dated 12th May 1948, can be assailed on the ground stated by the learned Sessions Judge. Moreover, an order made under the provisions of Section 623, Criminal P.C. is not an order against which an appeal can be preferred to the Court of Sessions. Indeed it was the learned Sessions Judge who had no jurisdiction to pass an order setting aside the order of the S. D. 0., dated l2th May 1918. All that he was competent to do wag to make a reference to this Court under the provisions of 0.438, Criminal P.C.
5. Mr. Sen for the respondent contended that the order of the Sessions Judge might be treated as a reference, and at the order of the learned Sessions Judge does no more than Maintain the status quo on the date of the seizure of the property by the police from the respondent, this Court, sitting in revision, ought not to interfere with it. The difficulty in giving affect to this contention is that the order of the S. D. 0,, dated lath May 1913, being one passed under the provisions of Section 623, Criminal P- 0,, the question of the delivery of the property seized must be decided with reference to the person who is entitled to the possession thereof. neither the S. D. 0., by his order dated 12th May 1948, nor the learned Session Judge has considered the question from this point of view.
6. We think, therefore, that the order of the S. D 0., dated 12th May 1918, and that of the learned Sessions Judge, dated 16th May 1919, should be sat aside. We accordingly set aside both the orders and direct the S. D. 0 , being the Magistrate to whom the police reported to seizure of the property to pas3 an order respecting the delivery of the property in question after making a judicial enquiry into the question as to who is entitled to the possession thereof.