1. One Kondalu Rami Reddi was given possession of a cow and a calf by its owner for the purpose of grazing in a certain forest. While there, this cow and calf were missing and the information of the complainant was that it had been stolen by Sugalis. According to the facts found during the police enquiry, the complainant searched for these cattle for many months and at last traced them to the house of the accused. The accused said that the cow and calf were his and that he purchased them long before from some Sugalis. As he would not return them, the complainant informed the police, who investigated this as an offence coming under Section 411, Indian Penal Code. They came to the conclusion, upon the acceptance of certain information, that the offence committed was not one punishable under Section 411, Indian Penal Code, but one under Section 403, Indian Penal Code, which is criminal misappropriation. This offence is not cognizable and so the police sent a referred charge sheet to that effect. The Magistrate agreed with the police and ordered the cattle to be returned to the complainant. The accused preferred an appeal to the District Magistrate, who, as no appeal lay, had to dismiss it; but he nevertheless considered that the Taluk Magistrate had erred in not returning the property to the person from whom it was recovered. He thereupon made a reference to this Court for action under Section 438, Criminal Procedure Code.
2. The District Magistrate relied on a case reported in Paidi Subbayya v. Emperor 1939 M.W.N. 739 in which Lakshmana Rao, J., considered a case where a complaint of theft had been preferred and the case eventually struck off as being of a civil nature. That case is clearly distinguishable from the present one. Where a case is struck off as being of a civil nature, it means that the Magistrate has come to the conclusion that a criminal offence has not been made out and that it is only after adjudication by a Civil Court that the ownership of the property can be determined. He is therefore bound to return the property to the person from whom it is taken and to direct the complainant to have recourse to a Civil Court if he is so advised. In the present instance, the Magistrate was of opinion that an offence had been made out, but that it was one of misappropriation and not of the receipt of stolen property knowing or having reason to believe the same to be stolen. The Magistrate in disposing of property which is the subject-matter of a complaint, has a discretion. Section 523 empowers the Magistrate to pass orders with regard to the disposal of property which is alleged or suspected to have been stolen or is found under circumstances which create suspicion of the commission of any offence. These conditions were fulfilled here and I am not prepared to say that the learned Magistrate did not exercise his discretion judicially.
3. Notice has gone to the accused in this case but he has not put in any appearance.
4. The reference is not accepted and the papers will be returned.