1. In this case a certain elephant which was in the house of the present petitioner was, on a certain night, seized by the police. It appears that the complainant said, it was his elephant, and that it had bean quite recently stolen. The petitioner's case was that it had been in his possession for a very long time, since the previous October. When the case came on trial before the Magistrate it appeared that the elephant had at one time been purchased in the name of the complainant on behalf of the joint family of the complainant and his brothers. The present petitioner's case was that a certain share in the elephent went to a lady, as the widow of a brother, and that on partition of the joint family property the rest of the share, in the elephant, which had got something to do with the timber business, also went to the lady. He says that he purchased first of all the right of another person to whom the lady purported to sell her share, and secondly 14 annas so as to entitle him to 14 annas 8 gandas of the elephant. So far from that case being rejected by the Magistrate, the present petitioner was acquitted by the Magistrate of the charge of abetment of theft upon which he was tried.
2. When the learned Magistrate came to deal with the question what, in these circumstances, he should do with the elephant he appears to have gone wrong because the correct order was to say that this elephant was found in the petitioner's house, and should go back to the petitioner, having been taken by the police compulsorily from him. Instead of that the Magistrate made an order handing it over to the complainant until the civil Court should adjudge to the contrary, taking measures to preserve the elephant during the period limited for an appeal from his order. In my judgment that is a wrong decision. The elephant having been taken from the present petitioner's possession, oh the failure of the case against him it should have gone back to the present petitioner from whom it had been taken. On these grounds I think this rule should be made absolute, the order complained of should be set aside, and an order made in lieu thereof, that the elephant be handed back to the present petitioner.
3. I agree.