1. Four persons were charged with committing theft of property from the house of the complainant. The defence of the accused was that they had committed no theft; that the property had been foisted on them, and that panchayatdars were brought to see the property recovered from them. The Magistrate accepted this defence and doubted whether theft had been committed. He therefore acquitted the accused and ordered the property to be returned to them, although the accused by their own defence asserted that the property did not belong to them. The District Magistrate considered that this order was wrong and referred the matter to this Court under Section 438 of the Code of Criminal Procedure.
2. I agree with the learned District Magistrate that the property should not have been ordered to be returned to the accused because clearly the property did not belong to the accused. The prosecution alleged that the property belonged to the complainant, whereas the accused had no suggestions to make as to the ownership of the property, they merely contending that the property was foisted on them for the purpose of falsely implicating them. Under Section 523 of the Criminal Procedure Code the Magistrate is bound to order that the property be given to the person entitled to possession; and as the accused are not entitled to possession, the Magistrate should not have made the order he did. The duty of the Magistrate under this section is to make an inquiry as to the person entitled to possession and to order possession to be given to him. If the Magistrate is unable after inquiry to satisfy himself as to the person entitled to possession, he should under Section 523 (2) of the Code of Criminal Procedure issue a proclamation before passing final orders.
3. The order of the Taluk Magistrate with regard to the disposal of the property is set aside and he is directed to dispose of the property according to the rule laid down in Section 523 of the Code of Criminal Procedure.