M. Sadasivayya, J.
1. This is a reference made by the learned Sessions Judge of Shimoga Division; it is under Section 438 of the Criminal Procedure Code. Briefly stated, the facts which have given, occasion to the present reference, are as follows:
2. Among certain members of the Kurubar Community who are stated to have been residents of Basavanahalli, Hampapura and other villages, and five members who are stated to have been the Pujaries or the Archaks of two deities known as Dodda Beeralinge Devaru and Chikka Beera Linge Deyaru, there was a dispute pertaining to the, custody of the idol of one of the two deities, namely, Dodda Beeralingaswami. In consequence of this dispute, the said five Pujaries wanted to retain the idol of Dodda Beeralingaswami deity at Beeranahalli. It is stated that that idol had been taken there temporarily and had been Judged in the Lakshmi temple, Several members of the Kurubar community of the above said villages wanted this idol to be removed from the said Lakshmi temple, for being installed in a newly built temple at Hariharadahalli. But, for reasons which are not very clear, the five Archakas wanted this idol of Dodda Beeralinge Devaru to be retained at Beeranahalli itself. It would appear that some members of the Kurubar community made an application to the District Magistrate of Chickmagalur praying for orders for the said idol being delivered to the villagers for being placed in the newly built temple at Hariharadahalli. Thereupon, the learned District Magistrate ordered the Sub-Inspector of Police to make an enquiry an d submit a report.
The Sub-Inspector of police went to Beeranahalli and held an enquiry and submitted his report. According to his report, these five Archakas had kept the idol under lock and key and had been wrongly objecting to the removal of this idol to the newly constructed temple at Hariharadahalli. He prayed for orders for this idol being given to the possession of the members of the Kurubar community. Accepting the said report of the Sub-Inspector, the learned District Magistrate passed an order, the concluding portion of which ran as follows:
For the reasons stated above I allow this petition and direct the S.I. of police, Chickmagalur South Range to break open the lock of the temple in Beeradevarahalli and give possession of the Deities therein to the petitioners for its being installed at Hariharadahalli along with Chikka Beeralingaswamy in the newly constructed temple. The S.I. is also directed to see that the installation is made at Hariharadahalli without any manner of trouble. Issue instructions accordingly.
In making this order, the learned District Magistrate rejected the contention advanced on behalf of the five pujaries, to the effect that Section 523 of the Criminal Procedure Code would not be applicable to a case like the present one. Thereafter, the said five pujaries preferred revision to the Sessions Judge of Shimoga Division; that was in Criminal Revision Petition No. 2/1960 on the file of the said Sessions Judge, The learned Sessions Judge was of the view that where the property had not been seized by the police, the Magistrate would have no jurisdiction at all to pass any order under Section 523 of the Criminal Procedure Code regarding the disposal of the property, and that therefore the order made by the learned District Magistrate, (purporting to be under Section 523 of the Criminal Procedure Code), was an order which he had no jurisdiction to make. In consequence of the learned Sessions Judge taking this view, he has made the present reference under Section 438 of the Criminal procedure Code, recommending that the order passed by the learned District Magistrate be quashed. Sri A.B. Mariappa the learned High Court Government Pleader who has appeared far the State, has supported the reference made by the learned Sessions Judge; Sri Datar has appeared for the persons who were petitioners before the learned District Magistrate; Sri Swamy Rao has appeared for the five pujaries who had opposed the petition before the learned District Magistrate.
3. After hearing the arguments of the learned Advocates, I am satisfied that the order passed by the learned District Magistrate is one which, in the circumstances of the present case, he could not have legally passed under Section 523 of the Criminal Procedure Code and that therefore it is liable to be set aside. The relevant portion o Section 523, for the purpose of the present case is Sub-Section (1), which is as follows:
523(1) The seizure by any police officer of property taken under Section 51, or alleged or suspected to have been stolen, are 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.
It will Be noticed that the property regarding the disposal of which a Magistrate has been empowered by the said Sub-section (1) is property which should have been seized by the police:
(1) as property taken under Section 51.
(2) or alleged or suspected to have been stolen, and
(3) or found in circumstances which create a suspicion of the commission of any offence.
In the present case the idol of the deity in question has not been seized by the police on any of the grounds mentioned in Sub-section (1) Section 523 of the Criminal Procedure Code. It is undisputed that the idol continues to be under lock and key in the Lakshmi temple at Beeranahalli. Therefore, when this idol has not been, seized by the police on any of the grounds mentioned in Sub-Section (1) of Section 523 of the Criminal Procedure Code, the learned District Magistrate did not have competence or jurisdiction to pass any order under Section 523 regarding the disposal of the said idol. The order passed by the learned District Magistrate being one which be had no jurisdiction to pass, is illegal and is liable to beset aside. Consequently, this reference made by the learned Sessions Judge is accepted and the order passed by the learned District Magistrate is set aside.