1. This is a reference by the learned Sessions Judge of Mainpuri recommending that an order passed by Babu Ganga Prasad, Magistrate, First Class, on 15th January 1929, be vacated and that the said Magistrate be directed under Section 517, Criminal P.C., to recover a key from the possession of Brij Basi Lal and make over the same to Lala Bansidhar.
2. There is a house at Shikohabad which was in the occupation of Mr. Radha Kishun, pleader. Radha Kishun died in 1908.
3. It is alleged that one Govind Prasad was the owner of this house and that he had let out the same to one Mulua. It is further alleged that Mulua had continued in possession of this house on behalf of Govind Prasad between the years 1908 and 1920.
4. Trouble began in 1924 when Govind Prasad applied to the Mainpuri police to be put into possession of this house, inasmuch as the tenant Mulua had disappeared from the scene and had locked up the house. The police appeared to have put Govind Prasad into possession of this house.
5. On 20th September 1927, Govind Prasad sold the house to Bansidhar. On 26th September 1927, Brij Basi Lal, son of Radha Kishun, instituted a complaint in the Court of Mr. Jwala Prasad, Magistrate First Class, against Bansidhar and 17 others charging them with offences punishable under Sections 143, 380 and 448, I.P.C. Before the filing of the complaint the police appear to have taken possession of the house and to have locked the house.
6. The Magistrate, upon the receipt of the police report, dismissed the complaint under Section 203, Criminal P. C, on 28th March 1928. The key of the house, however, continued to remain in the possession of the police. Upon an application for revision filed by Brij Basi Lal, the learned Sessions Judge of Mainpuri set aside the order dismissing the complaint and directed further enquiry. Bansidhar's application to the High Court against the order of the Sessions Judge was rejected. Under the orders of the District Magistrate of Mainpuri, the case was transferred for trial from the file of Babu Jwala Prasad to that of Mr. Kali Charan, a Tahsildar Magistrate. During the pendency of the case before Mr. Kali Charan, the key of the house was by the orders of Mr. Kali Charan delivered to Brij Basi Lal. The case was eventually transferred to Mr. Ganga Prasad, a Magistrate of the First Class, who on 29th December 1928 acquitted the accused.
7. An application was presented by Lala Bansidhar in the Court of Mr. Ganga Prasad for an order directing Brij Basi Lal to hand over the key to him, which had remained in his possession since the order of Mr. Kali Charan, the Tahsildar Magistrate. This application was refused by Mr. Ganga Prasad, mainly upon the ground that the key having been put into the possession of Brij Basi Lal by a competent authority, he had no jurisdiction either to revise or to overset the said order. On an application for revision filed by Lala. Bansidhar the learned Sessions Judge of Mainpuri has referred the case to this Court under Section 438, Criminal P.C.
8. The title to the property is by no means clear. The complaint of Lala Brij Basi Lal dated 26th September 1927, having been dismissed and the accused acquitted, it cannot be said that simply by reason of the fact that one of the charges preferred was under Section 448, I.P. C, the house was a property in respect of which an offence had been committed. The allegation of the complainant that the accused persons had by use or by show of criminal force taken possession of the house did not find favour with the trial Court and was discredited.
9. The house was not a property regarding which an offence was committed within the meaning of Section 517, Criminal P.C. The house was at one stage, in custodia legis, the police being the agents of the Court. The possession of the key may under certain circumstances be evidence of symbolical possession of the house itself.
10. Mr. Kali Charan, the Tahsildar Magistrate, at one time had the seisin of the entire case by reason of the order passed by the District Magistrate of Mainpuri. It was within his competence to transfer the possession of the house to such person as he considered to be desirable and fit. He having directed that the key of the house should be transferred to Brij Basi Lal, it could not be said that Brij Basi Lal's possession of the key was unlawful and was open to challenge either on the ground of illegality or for want of any jurisdiction in Mr. Kali Charan, the Tahsildar Magistrate. The fact, however, remains that on 15th January 1929 or thereabout, when Mr. Ganga Prasad was moved for an order directing Brij Basi Lal to hand over the key to Bansidhar neither the house nor the key was in the custody of the Court. The Court therefore had no power to make an order under Section 517, Criminal P. C, in favour of Bansidhar.
11. Mr. Nehal Chand in support of the reference has called my attention to Section 516(a), Criminal P.C. That section has no application to the facts of the present case because neither the house nor the key is:
property regarding which any offence appears to have bean committed or which appears to Shave been used for the commission of an offence.
12. The key moreover was not produced before the criminal Court at any stage of the enquiry or trial.
13. My attention has also been drawn to Section 561(a), Criminal P.C. and it has been argued that to allow Brij Basi Lal to retain possession of the key amounts to an abuse of the process of the Court and the ends of justice are likely to be met by restoring the status quo ante.
14. It is difficult, in view of the facts of this case, to say as to whether justice lies on the side of Lala Bansidhar. The title to the property cannot be effectively determined by the criminal Court. Any party aggrieved by the order of Mr. Ganga, Prasad, dated 15th January 1929, is entitled to seek his proper remedy before the right forum. I refuse to entertain the reference. Let the papers be returned.