1. This Rule was Issued at the instance of six persons who were arrested by the police along with another person when they were paid to have been driving bullock carts containing paddy across the border of West Bengal and Bihar.
The Police arrested them and started seven cases under Section 7 (2) (8) of Act 24 of 1946. During the police investigation, an order having been obtained from a Magistrate, the custody of the cart and the bullocks were obtained by the six petitioners, We are not concerned with the case the seventh person. He was sent up by the police, and after evidence had been taken, he pleaded guilty and was sentenced.
2. The case against the six petitioners before me was not proceeded against by the police who submitted final report on the grounds that their identity as the actual offenders had not been established. What is said to have happened is that after the police seized the property the miscreants had run away. The evidence that they were actually in the carts was considered insufficient, and so no report for taking action against them was made by the police to the Magistrate, i.e., no charge sheet was submitted.
After their discharge from police custody these six petitioners, four of whom are minors and two are adults, submitted petitions to the Magistrate that they were owners of the paddy, & the paddy and the carts and the bullocks seized in the six cases should be returned to them.
The learned Magistrate considered that Section 517 did not apply to the case and that the proper section to apply would be Section 523, Criminal P. C. He purported to pass an order u/s. 523 of the Code. On an appeal to the Judge, the learned Judge held that the order was passed by the Magistrate really under Section 517 of the Code and an appeal would ordinarily lie, but as the Magistrate purported to pass an order under Section 523 there was no appeal to him. He, therefore, rejected the appeal.
3. Mr. Dutt appearing on behalf of the petitioners has agitated the question whether the proper section was applied by the Magistrate, and also what would be broadly the distinction among Sections 516A, 517 and 523. Criminal P. C.
A perusal of the sections themselves as also the numerous decisions thereon would go to show first that Sections 516A and 517 deal with cases which have actually come up before the Criminal Court. They deal with an inquiry or a trial in a criminal Court. Section 516A enables a Magistrate to provide for the 'interim' custody of goods pending the conclusion of the inquiry or trial before the Court. Section 517 provides for the disposal of property after inquiry or trial is over. In connection with orders under Section 516A there is necessarily no appeal because the order is not a final order and is subject to revision when the case is actually disposed of by the Criminal Court. Such fresh consideration of the matter will be under Section 517 of the Code. Therefore only an order under Section 517 is made appealable. Where there has been no inquiry or trial in a Criminal Court, the proper section to apply will be Section 523, which deals with first of all, properties found on a person arrested without warrant by the police, secondly, suspected stolen properties, and thirdly, when properties are found under such circumstances as create a suspicion of commission of an offence.
4. In the present case, the seizure of the property was under such circumstances as created a suspicion of the commission of an offence under Act 24 of 1948. The offence mentioned in Section 523 may be under any Act. Offence has been defined in Section 4(0) as meaning an act or omission made punishable by any law for the time being in force. Therefore, whatever happens in connection with seizure of property bythe police during investigation without any inquiry or trial by the Magistrate, the section to apply is Section 523 if there is suspicion of commission of an offence of whatever character it may be.
The Code of Criminal Procedure makes a clear distinction between inquiry and investigation. These are defined under Section 4 of the Code. Inquiry has been defined in Clause (K) of that section as including every inquiry other than a trial conducted fay a Magistrate or court so that the inquiry must be a proceeding by a Magistrate or a Court. Investigation includes other proceedings as defined in Clause (1) of that section. As I have already said 6s, 516A and 517 deal with inquiry or trial which are proceedings in Court.
5. In the present case there is no dispute that the proceedings never reached the stage of inquiry or trial as far as these six petitioners are concerned. A Magistrate takes cognisance of a criminal case only in three ways, viz., first upon. a complaint, secondly upon a police report, and thirdly, 'suo motu'. In the present case the police report to take action was not made. The police did not submit a chargesheet. There was no complaint. There was no 'suo motu' taking of cognisance by the Magistrate. Under the circumstances, no action was taken under Section 516A or Section 517 in the present case, and the learned Judge was not right in holding that the Magistrate had taken action really under Section 517 and not under Section 523. The learned Magistrate was right in his view that 8. 517 did not apply to the present case, but Section 523 did.
In connection with inquiry under Section 523, if the Magistrate is not satisfied, or if the person to whom the property is to be delivered is unknown then the Magistrate cannot either forfeit the property, or merely keep the property without further action. He is compelled by the law to Issue a proclamation specifying the property and requiring all claimants to appear before him and establish their claims within six months of the date of such proclamation. On the ground that four of the petitioners were minors and their parents had not appeared to make a claim the learned Magistrate ordered the goods to be kept in custody. He passed no order for proclamation as required under Section 523 (2). Therefore, the order of the learned Magistrate is set aside and the matter is remanded to him. He will issue necessary proclamation with regard to all the articles, viz., the paddy, the cart and the bullocks and then dispose of the matter according to law.
6. This Rule is accordingly made absolute. During the pendency of the matter, i.e., the period of the proclamation and inquiry by the Magistrate on the claims made, the custody of the carts and bullocks will remain with the persons with whom they are now. The paddy has been sold and the money will remain in Court pending disposal.