1. Facts giving rise to this petition are that the opponent No. 1 Satyanarain lodged a report at Chhatripura Police Station on 18-1-1954 that Sadhusingh had taken from him a pair of gold Kadas weighing about 13 or 13-1/2 tolas on 13-10-1952 on the pretext that they were required by his wife for use in the marriage of one of her relatives; that Sadhusingh did not return the gold Kadas, appropriated them to himself and pledged them as his own property.
2. On this report the police registered an offence under Section 406, I. P. C,, and commenced investigation. On 19-1-1954 the police seized the gold Kadas from the petitioner Ganeshilal, proprietor of the firm Gendalal Ganpatlal, with whom Sadhusingh had pledged them for Rs. 925 on 14-10-1952. Sadhusingh could not be arrested as he was found to be absconding. Proceedings were therefore taken under Section 512, Criminal Procedure Code, and in connection with these proceedings the pair of Kadas were produced in Court by the police.
3. On 2-2-1954 the petitioner applied for return of the Kadas contending that they were pledged with him by Sadhusingh and he hada right to retain them so long as they were not redeemed. The application of the petitioner was opposed by Satyanarain Tiwari and the learned Additional District Magistrate, Indore, rejected the application and directed the parties to go to the Civil Court to establish their claim.
The petitioner preferred a revision application against this order which was heard by the Additional Sessions Judge, Indore. As the learned Judge was of opinion that the order of the trial Court is legally erroneous he has referred the matter to this Court under Section 438, Criminal Procedure Code.
4. At the outset I may state that the order of the trial Magistrate was not supported either by the petitioner or by the opponents and it is not disputed that so long as the trial of the case is not concluded and the accused was not found guilty, the Muddemal property, if at all it was to be restored, had to be restored to the petitioner from whose possession it was seized by the police.
The contention of Mr. Sanghi, learned counsel for Satyanarain Tiwari is that if the Muddemal property is returned to the petitioner he will sell it and even if at a later stage the attendance of Sadhusingh is secured, it will he impossible to convict him in the absence of this property. He also submitted that in the instant case the Court had no jurisdiction to pass any order with respect to the property because it was not produced during any inquiry or trial under the Code of Criminal Procedure, nor was the case covered by the provisions of Section 523 of the Code.
5. Power of the Court to pass an order for disposal of property is governed by the provisions of Sections 516-A to Section 525 of the Code of Criminal Procedure. Section 516-A empowers the Court to pass an order for proper custody of the property produced before it during the inquiry or trial.
Section 517 confers upon the Court power to pass an order for disposal of property with respect to which an offence has been committed at the time of the passing of the final order or at the conclusion of the inquiry or trial. Section 523 is however enacted to enable the Magistrate to dispose of property seized by the police under Section 51 or under circumstances for regulating trade, commerce and inter-course, which create suspicion that an offence was committed with respect to it.
6. In the present case the property was brought into the Court by the police in proceedings under Section 512 in which it is not open to the Magistrate to give any finding of fact as regards the guilt of the accused or otherwise. Section 516-A or Section 517 cannot therefore be applied to the case. The question to be considered is, whether Section 523 can be invoked in this case.
7. Mr. S. D. Sanghi, learned counsel for the opponent Satyanarain Tiwari referred to the decision of the Allahabad High Court in Purshottam Das Banarsidas v. State, AIR 1952 All 470 (A) in support of his contention that because the property was seized by the police during the investigation, Section 523 was not attracted. The learned Judge of the Allahabad High Court has in that case held that Section 523 refers to property seized under Section 51 or under Section 550, Criminal Procedure Code, and is not concerned with property seized by the police during the investigation of the offence.
8. Section 523 refers to seizure of property by the police under Section 51, Criminal Procedure Code. It also refers to property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence.
Though Section 550 empowers a police officer to seize property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence it is significant that there is no reference to Section 550 as there is to Section 51 in Section 523, Criminal Procedure Code. In my opinion Section 523 applies to property seized by the police of their own accord as, distinct from property seized under a warrant issued by Court.
9. In the instant case the property was seized by the police because it was suspected to be connected with the commission of a crime, and Section 523 would apply to such a case. (See U. Ba Hlaing v. Balabux Sodani, AIR 1937 Rang 42 (B); Tara Chand v. The State, AIR 1951 Madh B 154 (C) ). The contention of Mr. Sanghi that the Court had no jurisdiction to pass an order regarding the disposal of the property is in my opinion untenable.
10. There is no doubt that in the instant case the property was seized from the petitioner and he is entitled to retain possession of it until the prosecution case against the accused is established and he is found guilty. The property has been in possession of the Court for nearly four years and yet the accused has not been traced. It is therefore unnecessary to keep the property detained in Court any further.
11. I accept the reference, set aside the order of the trial Court and direct that the Kadas be returned to the petitioner.