1. The material facts are as follows : One Mohanto Lal De Chowdhury was convicted and sentenced under Section 420, I.P.C., to undergo rigorous imprisonment for one year and in addition to pay a fine of Rs. 200. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for a further period of six months. The fine was not paid. The prisoner surrendered on 22nd January 1938 and was released on 29th August 1938, after serving the full sentence including the period of imprisonment in default. On 2nd July 1938, an order was passed for realisation of the fine by distress warrant. In execution of that warrant certain items of moveable property were seized. On 29th August 1938 the wife of the prisoner made a claim to these properties. The matter was referred to a Sub-Inspector of police for report. The Sub-Inspector reported against the claimant. Without further enquiry the Magistrate rejected the claim and sold the property attached. The learned Sessions Judge has taken the view that the Magistrate had no right to sell the attached property, after the prisoner had served the full period of imprisonment in default, without recording the reasons which in his opinion rendered it necessary to direct that the fine should be so realized. The learned Sessions Judge has further observed that the Magistrate was bound to follow the procedure laid down in Order 21, Rule 58 Civil P.C., in disposing of the wife's claim, and his failure to do so was an error of law. In support of this view, the learned Sessions Judge has relied on the ruling in Harimal v. Emperor : AIR1933All135 . That decision is a decision of the Allahabad High Court. Section 386, Criminal P.C., as it stood before 1923, made no provision for an enquiry by a Magistrate into the claims of third parties. In 1923, Section 386(2) was enacted enabling Local Governments to make rules for the summary determination of claims. The decision in Harimal v. Emperor : AIR1933All135 is based on the fact that the Local Government had made rules under Section 386(2) directing that the procedure laid down in Order 21, Rule 58, Civil P.C., be observed in investigating such claims. The Government of Bengal framed rules in the year 1925 which are contained in Circular Order No. 6 (Criminal) of 1925. The relevant Rule is 117(4) which reads:
If any person makes any claims in respect of the property attached, then the ownership of such property shall be determined by the Magistrate who issued the warrant, or his successor in office or the Magistrate in charge of accounts. The services of a junior Deputy Magistrate or Sub-Deputy Magistrate or Circle Officer may be utilised, if necessary, for the investigation of such claims.
2. There is accordingly no necessity for a Magistrate in Bengal to follow the procedure laid down in Order 21, Rule 58, Civil P.C.; but on the other hand he is not entitled to utilise the services of a police officer in investigating such claims, nor is he entitled to rely simply on the report of a police officer. Section 386(1)(b) Proviso requires the Magistrate to record his special reasons for issuing a distress warrant only when the warrant is issued after the offender has undergone the whole of the imprisonment in default. It cannot therefore be said that the issue of the warrant in the present case was illegal or that the sale was illegal merely because reasons were not recorded for issuing the warrant. The warrant was issued before the whole of the imprisonment in default had been undergone. The law does not require that reasons should be given for selling attached property after the disposal of claims. In view of the fact that no proper enquiry was made into the claim of the wife, we accept the reference and set aside the order rejecting the claim of the offender's wife to the property attached. The Magistrate is directed to dispose of that claim according to law.