1. This was a rule calling upon the Chief Presidency Magistrate and Beni Madhab Karmakar to show cause why the order passed by Mr. Khan on the 4th of May, 1923, and the order passed by Mr. Ali on the 26th of April, 1924, should not be revised and such other order passed as to this Court might seem fit and proper.
2. The allegations In the petition may be briefly stated. A theft was committed in the house of the petitioner on the 24th of April, 1922, when jewellery and cash to the value of about Rs. 18,000 were stolen. On the 19th of July the shop of Beni Madhab Karmakar was searched and a quantity of gold ornaments was discovered. Upon certain statements made by him the Opposite party Tulsi Telini, who was the accused in the case and is said to have been at the time an occupant of a room in the petitioner's house, was arrested on a charge under Section 380 of the Indian Penal Code. She was however, not tried under that section but under Section 54-A of the Calcutta Police Act; and, by his judgment of the 2nd of December, 1922, the learned Magistrate convicted her and sentenced her to three months rigorous imprisonment. At that time no order was made by the learned Magistrate as to the disposal of the property recovered which 'he directed to be kept in the malikhana.
3. On the 6th of February, Tulsi applied to this Court for a Rule against her conviction and sentence; but her application was refused and she subsequently applied on the 23rd of February for bail pending her application in England for special leave to appeal to His Majesty in Council. That application was also rejected. Then on the 4th of May, upon the arrival of the record in the Magistrate's Court, the petitioner applied under Section 517 of the Criminal Procedure Code for a return of the property to him. The learned Magistrate made an order upon the petition 'To D.C.' by which I understand him to mean to the Deputy Commissioner of Police 'fur disposal.' The matter remained pending before the Deputy Commissioner until the 22nd of November when upon a further application by the petitioner the Deputy Commissioner sent the application to the Public Prosecutor for advice and on the 27th of that month the Public Prosecutor advised that the Deputy Commissioner had no jurisdiction to dispose of the matter which was one either for the Magistrate or for this Court to decide. Then, a somewhat mysterious order was passed by the Deputy Commissioner. To Girija Babu.' We are told that Girija Babu is an Inspector of the Criminal Investigation Department who had enquired into the case. Then, on the 10h of March the petitioner moved this Court and the learned Judges who heard the application told him to make another application before the learned Magistrate inviting him to exercise his powers under Section 517 of the Criminal Procedure Code. Thereupon, on the 18th of March, the petitioner moved the Magistrate. The Magistrate, Mr. Ali, on the 26th of April, disposed of the petition in these terms:
Mr. Khan had already recorded an order regarding the disposal of the property. I cannot hold an enquiry in the matter. Application rejected.
4. It appears that the order made by Mr. Khan on the 4th of May, 1923, was to this effect:
The conviction was under Section 54 of the Calcutta Police Act and the only order possible about the property by the Court was passed sending it to Crown malikhina, as suspected stolon property. The Court is not in a position to pass definite orders about the property. To D.C., C.I.D. for favour of disposal. This was I am told a C.I.D. case.
5. The learned Vakil who has appeared on behalf of the petitioner has urged that the learned Magistrate had no jurisdiction to make the order consigning the property to the malikhana without giving him an opportunity of being heard in support of his claim; and, he further complains that the Magistrate has passed a further order by which the property has been confiscated.
6. It is urged that under Section 517 of the former Code of Criminal Procedure the Magistrate had no authority to make any order for confiscation because that power has been given to him only by the amending Code of 1923. The former section read:
When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
7. Under the amending Code the following words are introduced after the word ' disposal,' i.e.,
by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise.
8. We are of opinion that the order made by the learned Magistrate directing the confiscation of the property was without authority and cannot be supported.
9. The question which remains for consideration is what course should now be adopted. It is urged by the learned Vakil for the petitioner that his client should be given an opportunity of examining witnesses before the learned Magistrate and so establishing his claim. It is argued on behalf of Beni Madhab Karmakar on whom the Rule was also issued that he has a lien on the goods and that that lien I should be recognised by any order that I may be made by the Magistrate. Evidently this Court has no jurisdiction to deal with that question. It is also argued by the learned Counsel on behalf of Tulsi Telini that the property should not be disposed of until her title has been decided in a Civil suit. There is evidently, therefore, a conflicting claim to the property and it is very doubtful whether the (Magistrate, even if he hears all the evidence, will be able to give a final decision as to the ownership of the property. The matter is one which can only be adequately dealt with by a Civil Court. The learned Magistrate in the cause which he has shown has in effect repeated what he said in his original order, namely, that the ownership of the property was uncertain and could not be definitely adjusted.' If, therefore, any further enquiry is held by him, we do not think that any satisfactory result will be attained.
10. We think that the proper order to make is that the order of confiscation should be set aside, and that the property should remain in the Court malkhana as at present subject to any order which may be made by a Court of competent civil jurisdiction.
11. The Rule is accordingly made absolute in these terms.
12. I agree.