Debabrata Mookerjee, J.
1. This is a petition for revision of an order of the Sub-divisional Magistrate of Malda whereby a cow and a calf were directed to be made over to the opposite party Dukhimoni Dasi.
2. The petitioner Amina Bewa claimed to have purchased a cow from one Sewpujan. Sometime in June, 1055, she missed the animal which was then carrying. There was a general diary entry made at her instance on the 25th July, 1955, detailing the circumstances under which the animal had been found missing. After some time however it returned to Amina Bewa, and the cow was delivered of a calf. On the 25th December, 1955, Dukhimoni lodged an information with the police stating that she had lost her cow. This was followed on the 4th December, 1955, by a petition to Court asking for a search warrant for recovery of the cow from the possession of the petitioner. A description of the animal was given and it was stated that she might be recovered without delay lest, it was feared, she be sold to some other person. On the 6th December, 1955, a search warrant was issued on the basis of this petition. The warrant was under Section 98 of the Code of Criminal Procedure. In pursuance of the search warrant, the police seized the cow and the calf from the custody of the petitioner, and the animals were kept in neutral custody pending conclusion of the enquiry which the Magistrate thereafter held. At this enquiry witnesses were examined on behalf of the two contending parties, Amina Bewa and Dukhimoni Dasi, each claiming ownership of the animals. Presumably this enquiry was held under Section 523 of the Code of Criminal Procedure. The learned Magistrate after hearing some evidence came to the conclusion that the cow and the calf belonged to the opposite party, and directed the animals to be made over to her. The present Rule has been issued to show cause why this order of the learned Magistrate, dated the 5th June, 1956, should not be set aside.
3. There cannot be any doubt that the proceedings before the Magistrate commenced with the issue of the search warrant under Section 98 of the Code of Criminal Procedure. The warrant in its turn was issued in consequence of a petition which had been filed before the Magistrate alleging merely the fact that the animals were to be found in the petitioner's house. An apprehension was merely expressed that if speedy action was not taken the cow might be disposed of. It is to be observed that not the slightest allegation was made against the petitioner that she had committed theft. It was nowhere suggested that the petitioner's place was used as a place of deposit of stolen property. That being so, Section 98 of the Code of Criminal Procedure could have, in my view, no application to the facts of this case. That section provides that when one or the other of the Magistrates named in the section, has information on which he is prepared to act that a place is used for the deposit or sale of stolen property or for deposit or sale or manufacture of forged documents, false seals, counterfeit stamps or coins or instruments for making them, the Magistrate may issue his warrant authorising any police officer above the rank of constable to take possession of the property and to have such property taken before a Magistrate. The essential requirement, therefore, is that there must be some allegation or information which the Magistrate believes that a particular place is used for the deposit or sale of stolen property or for manufacture of forged documents, false seals, counterfeit stamps etc. No warrant, in my view, can therefore, issue unless the essential requirements of Section 98 are fulfilled.
4. Turning to the facts of the case, there is no allegation whatever that the place intended to be searched was used as a place for deposit of stolen property. If there was no such allegation the Magistrate could not reasonably believe that the petitioner's place was used as a place of deposit of stolen property, and that being so, the warrant must be held to have been illegally issued.
5. If the warrant was not a valid warrant, then the question arises whether the enquiry which followed before the Magistrate was an enquiry which had a foundation in law. Presumably that enquiry was held under the provisions of Section 523 of the Code of Criminal Procedure. That section provides that when seizure of property has taken place under the circumstances mentioned in the section, the matter has to be reported to the Magistrate who shall make such, orders as he thinks fit respecting the disposal of the property or delivery of such property to the person entitled to the possession thereof.
6. It is contended before me that whatever the nature of the warrant may have been, the fact that the animals were seized had to be reported under Section 523 of the Code of Criminal Procedure to a Magistrate, and the Sub-divisional Magistrate being the person to whom the seizure was reported, he was well entitled to hold the enquiry under the provisions of that section, I am afraid I cannot agree with this contention. The enquiry is to be held no doubt in accordance with the provisions contained in Section 523, but that must, have reference to one or other of the circumstances mentioned in the section itself which would furnish a condition precedent to the holding of the enquiry. As for example, when a police officer has taken hold of property under Section 51 of the Code of Criminal Procedure, or when property is alleged or suspected to have been stolen, or found in circumstances which create suspicion of the commission of any offence, it is then that the seizure of such property is to be reported to a Magistrate. In the instant case there was no breach of suspicion of the commission of an offence as respects the cow and the calf. That being so, the conditions precedent to the holding of an enquiry under Section 523 were not present. It is nobody's case that the animals were seized under Section 51, and I have already made it clear that there was no allegation or suspicion that the cow and the calf were stolen property. In these circumstances, it cannot be held that the enquiry which followed before the Magistrate was legally held inasmuch as the necessary conditions had not been fulfilled.
7. There is an even more fundamental objection to the present proceedings. Section 98 of the Code of Criminal Procedure could not, in my view, have any application. This I have already indicated, and if the warrant itself could not have been legally issued, I do not think the seizure of the animals which followed could be said to have any legal justification. In these circumstances, it must be held that the warrant issued under Section 98 was illegal, and the enquiry which followed was held without jurisdiction. In the result, this Rule is made absolute. The order of the learned Magistrate, dated the 5th June, 1956, is set aside, and the cow and the calf are directed to be returned to the petitioner Amina Bewa.