1. In this criminal revision application we are concerned with the question of the legality of an order purporting to have been made under Section 516 A of the Criminal Procedure Code, 1898, in the following circumstances. On April 7, 1941, the opponent complained to the Second Class Magistrate, Andheri, that the applicant before us had committed criminal breach of trust in respect of certain buffaloes. The complainant's story appears to be that in December, 1940, having occasion to leave Bombay, he handed over a herd of forty buffaloes to the accused, who was his servant. He returned to Bombay in March, 1941, and when he called upon the accused to restore the animals the accused refused to do so, alleging that they belonged to him. We understand that the accused's case is that he and the complainant were doing milk business in partnership. The complainant also alleges that the accused has wrongfully disposed of some of the buffaloes. In the verification of the complaint the complainant requested that the animals should be at once restored to him. The Magistrate forwarded the complaint to the Police Sub-Inspector for inquiry and report under Section 202, and in the forwarding endorsement he directed the Police that in case they found that the property belonged to the complainant and that a criminal offence appeared to have been committed in respect of it, it should, if necessary, be handed over to the complainant on his executing a bond with a surety in a sum equal to the valuation of the property, binding himself to produce it when required.
2. On April 16, the complainant made an application to the Court asking that a warrant should be issued for the attachment of the buffaloes and on the same day the Magistrate made this order:
As an offence appears to have been committed in respect of the animals aforesaid and the utensils and other articles (to be pointed out by the complainant), they should be attached and handed over during the pendency of the case in possession of the complainant on his executing a bond with a surety on a stamped paper for an amount equal to the Panch valuation of the animals etc., on condition of producing the animals when ordered by the Court so to do.
3. This order was sent to the police-officer for compliance and it was complied with on April 17, that is to say the property was attached from the possession of the accused and handed over to the complainant who executed the required undertaking and surety bond.
4. On April 18, the accused applied to the Magistrate complaining of the order of attachment on the ground that it had been passed ex parte and for various other reasons and praying that the property should be handed over to him pending the disposal of the trial. No orders were passed on this application at the time. On April 21, process was ordered to, issue against the accused. That was after the receipt of the police report, which was to the effect that there was prima facie evidence that at any rate a technical offence of criminal breach of trust had been committed. It was stated in the police report that as the complainant's watchman resided in the stable and there was no possibility of the accused removing the animals, they had not been attached. That no doubt was in reference to the Magistrate's endorsement in forwarding the complaint for inquiry.
5. On April 28, the Magistrate made this further order disposing of the accused's application of April 18:--
It is not necessary to pass any orders in the application at this stage when orders in this respect have already been passed, pending decision of the case.
6. Section 516A is in the following terms;--
When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
7. The applicant contends that the Magistrate's orders are illegal and not warranted by this section for the following reasons: (1) on April 16, when the first order was made, the Magistrate had no reason to suppose that an offence had been committed; (2) the property in question had never been produced before the Court as required by the section; (3) it could not be said that the order was made during any inquiry or trial, because at that time the inquiry, which means an inquiry by a Magistrate, or the trial, had not commenced., In our opinion these objections to the order are substantial.
8. As I have stated, the Magistrate sent the complaint to the police for investigation, and that in itself suggests that without further inquiry or investigation the Magistrate was not satisfied that there was a case justifying the issue of process, in which case it can hardly be said that an offence appeared to him to have been committed. The learned Government Pleader who appears to oppose the application has argued on the strength of an affidavit made by the complainant that the police report was already before the Magistrate on April 16. The original report is before us and it does no doubt bear the date April 16, 1941. But there is nothing to show that it reached the Magistrate on that day. On the contrary it bears the date 21-4 and certain initials which seems to indicate that it was not received by the Magistrate until April 21, the date on which process was ordered to issue. This condition, therefore, viz., that the Magistrate should have reason to suppose that an offence had been committed, does not appear to have been complied with at the date of the order.
9. Then as to the property not having been produced, the words of the section are perfectly clear, and the power of a criminal Court to make orders as to the temporary custody or protection of property seems to be limited by the language of the section to property which is produced before it. The learned Government Pleader argued that the Court might have ordered production of the property under Section 94 of the Code and that, as the police were directed to attach the property, that was tantamount to production before the Court. But practically what this argument amounts to is that in cases where production before the Court would be inconvenient the words in the section 'produced before any criminal Court' may be ignored. No authority has been cited before us for holding that orders under this section may legally be made except in respect of property which can fairly be said to have been produced before the Court.
10. Then as to the third objection. The word 'inquiry' is defined in Section 4(k) of the Code. 'Investigation' is defined in Section 4(l). It is clear from these definitions that the investigation by the police under Section 202 is not an inquiry within the meaning of the Code, and therefore on April 16, when the Magistrate made this order, there was no inquiry or trial pending. The learned Government Pleader frankly conceded that in this respect at any rate the order was not in accordance with the provisions of Section 516A, but he argued that the order was in effect confirmed after hearing the parties by the subsequent order made on April 28. That was after the issue of process and after the Magistrate had been satisfied that an offence appeared to have been committed. His view was that under the circumstances it was not necessary for this Court to interfere. The record, however, does not suggest that the parties had been heard on April 28 and the form of the Magistrate's order is not consistent with the view that he was merely confirming his previous order after hearing the parties. He said in so many words that it was not necessary to pass any orders at all on the application made by the accused on April 18, and his view appears to have been that it was open to him to make an ex parte order, such as the order complained of on April 16, and that that order must be regarded as final pending the decision of the case. We think it necessary to point out emphatically that there is no warrant at all for any such view. It may be that circumstances of urgency may necessitate the passing of ex parte orders, but orders passed in that way can only be interim orders subject to vacation or variation or confirmation after hearing the parties concerned.
11. As the Magistrate's orders of April 16 and 28 do not comply with the provisions of the Code and are illegal, we must set them aside. We must also direct that the property attached from the accused should be restored to him. But as the Court is now satisfied that a prima facie case has been made out, we consider that it is necessary to prevent abuse of the process of the Court and to secure the ends of justice (vide Section 561A) that the accused should be required to give security. The order of restoration therefore is made subject to the accused giving security to the satisfaction of the Magistrate for the safe custody of the property and its production if and when required. In the event of this condition not being complied with, the Magistrate must make such other orders in respect of the property as are in accordance with law.