1. This Rule is directed against an order passed by the Additional Chief Presidency Magistrate, Calcutta making over a lorry seized by the police to the accused opposite party No. I on a bond.
2. The petitioner filed a petition of complaint before the Additional Chief Presidency Magistrate, Calcutta making certain allegations of cognizable offences against the opposite parties in respect of lorry No. WGA 2079. The Additional Chief Presidency Magistrate without himself taking cognizance of the alleged offences directed the police to make investigation under Section 156(3) of the Code of Criminal Procedure. The police thereupon treated the said petition of complaint as the First Information Report and started investigation into the alleged offences. During investigation the police arrested opposite party No. I and seized lorry No. WBK 1425 from his possession. The next day, the police produced opposite party No. 1 before the Additional Chief Presidency Magistrate who granted him bail. The police simultaneously informed the said Magistrate about the seizure of the lorry and prayed for custody of the same which was directed to be kept with the police. Subsequently on February 12, 1965 opposite party No. I filed an application before the Additional Chief Presidency Magistrate for making over the lorry seized from Trim to him on bond. The Additional Chief Presidency Magistrate obtained a report from the police and rejected the application at that stage. Thereafter on February 22, 1965 opposite party No. I again applied for making over the lorry to him but this time again on perusal of a further report from the police the prayer was refused at that stage. Then again in March, 1965 opposite party No. I filed a further application for making over the lorry to him and this time after perusal of a further police report the Additional Chief Presidency Magistrate passed an order on March 22, 1965 directing that the lorry should be made over to the opposite party No. I on his executing a bond of Rs. 5,000 on condition to produce it on call and on furnishing a surety of the like amount. Subsequently the petitioner filed an application for making over the lorry to him, but the Additional Chief Presidency Magistrate rejected that application on March 24, 1965.
3. Mr. Dutt, who appears for the petitioner, first submits that the Additional Chief Presidency Magistrate had no competence to pass the order making over the lorry seized by the police during investigation, to opposite party No. I. The learned Magistrate in his explanation has said that he passed the order making over the lorry under Section 523 of the Code of Criminal Procedure. Mr. Dutt contends that when the police makes a seizure in course of investigation under Section 165 of the Code the Magistrate has no competence to pass an order in respect of such seizure under Section 523(1) of the Code. He argues that the Magistrate can act under Section 523(1) of the Code only when the seizure is made either under S. 51 or under Section 550 of the Code. This argument cannot be sustained. Section 516-A of the Code empowers the Magistrate to deal with seized property during any inquiry or trial. Section 517 of the Code empowers the Magistrate to deal with the seized property after an enquiry or trial is concluded. Section 523 of the Code empowers the Magistrate to deal with the seized property in all other cases. Section 523(1) specifically mentions Section 51 of the Code, but does not specifically refer to Section 550 or the Code. Mr. Dutt submits that the words used in Section 523(1) viz. 'alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence' are the same as used in Section 550 of the Code. But if by these words the Legislature wanted to refer to the seizure under Section 550 of the Code only, the Legislature would have specifically referred to Section 550 as it has specifically referred to Section 51. Mr. Dutt then refers to the words used in Section 165(1) viz., 'reasonable grounds for believing' and submits that these words are not identical with the words used in Section 523(1) which speak of 'suspicion of the commission of any offence.' But the purpose of these two sections is different. Section 165(1) gives the police a power to make a search during investigation without reference to the Magistrate and it says that a police officer can make such a search only when he has 'reasonable grounds for believing etc.' The language of Section 523(1) is as it should be in wider terms so as to cover all conceivable cases of seizure by the police without reference to the Magistrate. Mr. Dutt then argues that under Section 165 (5) a police officer making a seizure during investigation has only to send a copy of the seizure list to a Magistrate; but Section 323(1) directs that the seizure shall forthwith be reported to a Magistrate. There is no material difference in the provisions contained in these two sections in this respect. What is required is that when a police officer makes a seizure without an order from a Magistrate he must at once report this to a Magistrate. From the terms of Section 523(1) of the Code therefore it cannot be said that seizure by the police during investigation under Section 165 or the Code is excluded from its operation. Mr. Dutt submits that the Magistrate can only aid investigation but can have no power to stifle investigation but in the particular facts of this case the effect of the order passed by the learned Magistrate was to stifle investigation. The petitioner's allegation is that the numbers of the lorry, of the engine and of the chasis were changed. The lorry was, therefore, required to be examined by Forensic experts. It appears that the learned Magistrate refused to make over the lorry to opposite party No. 1 on February 12 and 22, 1965 because the police reported that the examination by the Forensic experts was not till then complete. The order for making over the lorry was passed only after the police reported that the examination by the Forensic experts was over. Mr. Dutt, however, contends that the lorry is required to be examined by the representatives in India of the Foreign company which manufactured the same. The petitioner's case is that his lorry was of 1959 make but the lorry seized was shown as of 1954 make. It is certainly desirable that the manufacturer's representatives in India, if available, should examine the lorry to find out, if possible, the year of the make of the lorry. But we find that the Investigating Officer did not inform the Magistrate at any time before he passed the impugned order that such examination was necessary for his investigation. He informed the Court about it only after the learned Magistrate had passed the order. It cannot, therefore, he said that the order of the learned Magistrate was to stifle investigation. Even if it be assumed that the order was not proper at the particular stage of investigation, it can never be argued that because of the possibility of a Magistrate making an improper order the Magistrate should be deprived of the power to deal with property seized by the police during investigation. The police while making an investigation have power to arrest an accused and to make a seizure. But the Code provides for the production of the accused before the Magistrate within 24 hours and the Magistrate has been given powers to grant bail. Similarly, the Code provides that the police must report the seizure to the Magistrate and the Magistrate has been given power to deal with such seizure. If the Magistrate is deprived of this power the police will be left with arbitrary powers to deal with the seized property during investigation may be to the detriment of the interest of the person entitled to the possession thereof. Mr. Dutt refers to the Allahabad High Court decision in Purshottam Das Banarsidas v. State, reported in : AIR1952All470 . This decision supports the contention of Mr. Dutt. But with respects and for the aforesaid reasons we disagree with the views expressed therein. Our view gets support in this Court's decision in Sk. Muktear v. State, reported in : AIR1954Cal350 , where Chunder, J., held that Section 523 of the Code is attracted to a seizure made by the police during investigation. The trend or the recent decisions of the other High Courts also is that Section 523 of the Code is a general provision applicable to all cases before there is any 'enquiry or trial'. Reference may be made to the decision in Md. Ali v. State, reported in AIR 1957 Andh Pra 146, Ganeshi Lal Ranchoddas v. Satya Narayan Tiwari, reported in : AIR1958MP39 Tarachand v. State, reported in 52 Cri LJ 1476: (ATR 1951 Madh B 154) and Ali Kunju v. Ali Kunju, reported in : AIR1960Ker343 . It was held in those cases that Section 523 of the Code is attracted to the seizure by the police under Section 165 of the Code or that Section 523 of the Code covers all cases where there is no enquiry or trial. We respectfully agree with these decisions and we hold that Section 523(1) is attracted to a seizure made by the police under Section 105 of the Code and hence, to the facts of this case.
4. Since the police did not make the seizure under Section 550 of the Code it is not necessary for us in this case to consider the argument of Mr. Dutt about the effect of Section 550 of the Code not being made applicable to the Calcutta Police.
5. Lastly, Mr. Dutt argues that the order is not a proper order on the facts of this case. It appears that the Blue Book, the Insurance Certificate and other relevant documents stand in the name of opposite party No. I. It is common knowledge that we have serious transport problems in our country. It is not desirable that a lorry in a fit condition to be on the road should be kept idle. We, therefore, think that the learned Magistrate properly exercised his discretion, when he directed the lorry to he made over lo the person in whose name all the necessary documents stand.
6. Mr. Dutt finally submits that the bond of Rs. 5,000 Is too insufficient. Mr. Mukherjee, appearing for the opposite parties, has no objection if the amount of the bond is increased.
7. In the result, the Rule is discharged subject to this that the lorry would be made over to opposite party No. 1 on his furnishing a bond of Rs. 26,000 with two sureties of Rs. 10,000 each and this order will be carried out after one month from the date of the receipt of this record by the Magistrate during which period the police will take necessary steps to have the lorry examined by the manufacturer's representatives in India, if available.
8. I agree.