I.K. Kotwal, J.
1. On receiving information that cement obtained by some Govt. employees from the Govt. Store, Jammu which was meant to be used on some works undertaken by the State, was unlawfully sold by them to its owners, the Anti-Corruption Organisation (A. C, O., for short) raided the premises of M/s. K. C. Vanaspati Bar Brahmanan, Jammu on 10-8-1979 and seized cement lying there by putting a lock on its store. On the following day an application was moved in the Court of the Chief Judicial Magistrate, Jammu by one Vijay Kumar on behalf of M/s. K, C. Vanaspati for releasing in its favour the cement seized by the A, C.O. A report was called by the Chief Judicial Magistrate, from the A. C. O. but the latter having failed to make any, another similar application was filed in the court of Sessions Judge, Jammu on 13-8-1979 on behalf of M/s. K. C. Vanaspati.
The Sessions Judge called for a report from the Superintendent, A. C. O. The A. C. O. submitted its report on 17-8-1970. On this date, however, another application under Section 523 Cr. P, C. was moved on behalf of M/s. K. C. Vanaspati for releasing seized cement in its favour. Notice of this application was given to the Public Prosecutor and the case was fixed for arguments on 21-8-1979. The Sessions Judge did not, however, wait till the date fixed and the application was heard and decided by him on 18-8-1979 at the request of the counsel for the applicant. The Sessions Judge passed a conditional order releasing the cement in favour of M/s. K. C. Vanaspati, operative portion whereof reads as under:
Taking stock of things into consideration it is ordered that the cement seized by the A, C, O. be released in favour of the petitioner provided the Deputy Commissioner, Food and Supplies, verifies the issuance of cement to the petitioner factory through authorised dealer. It is further ordered that the petitioner will give an undertaking to the tune of Rs, 10.000/- to the satisfaction of the duty magistrate that in case of the cement being proved stolen property he shall be liable to pay full price to the concerned department of the Govt. and shall also be liable for the legal consequence.
Besides this the Sessions Judge also ordered that samples from the bags of cement may also be taken by the A.C.O.
2. Appearing for the State Mr. Bakhshi has assailed the order on the grounds that it has been passed without jurisdiction as the Sessions Judge, Jammu not being the Special Judge, appointed under Section 6 of the Criminal Law Amendment Act No. Ill of 1958 (hereinafter the Amending Act) was not competent to try the case in which cement had been seized, that even otherwise also he had no jurisdiction to pass the order as an order under Section 523 could be passed by a magistrate alone and lastly that the order has been passed in undue haste which is bound to prejudice the prosecution, Mr. Sethi on the other hand has contended that the order is bad in so far as it imposes a condition of producing attestation of the Deputy Commissioner, Food & Supplies, Jammu and provides for taking sample from each bag of cement,
3. The Amending Act was passed with a view to further amend the Ranbir Penal Code and Code of Criminal Procedure. Section 6 of the Amending Act authorised the Govt. to appoint Special' Judges for such areas as may be specified in the notification to try offences under Sections 161, 165, 165-A of the Ranbir Penal) Code and Sub-section (2) of Section 5 of the Prevention of Corruption Act, 2006 including the conspiracy to commit or any attempt to commit or any abetment of any of the aforesaid offences. Section 10 of the Amending Act provided that all cases involving any of the aforesaid offences pending in other courts on the date the said Act came into force were to be transferred to the Special Judges competent to try the same. The first notification which came to be issued under Section 6 was dated 1-8-1958 published in the Govt. Gazette dated 7-8-1958. Under this notification all Sessions Judges and Addl. Sessions Judges were appointed as Special Judges within their respective jurisdiction. This notification was followed by SRO-20 dated 16-1-1975 which superseded the earlier notification dated 1-8-1958.
Under this SRO Mr. G. M. Mir (now a Judge of the High Court) was appointed as a Special Judge for the whole of the Jammu & Kashmir : State. Soon thereafter, two more SROs being Nos. 180 & 181 carne to be issued on 18-4-1975 by way of notifications under Section 6 of the Amending Act superseding SRO-20 dated 16-1-1975. Under these SROs instead of one, two Special) Judges were appointed by the Govt. i. e,, one for Jammu Province and the other for Kashmir Province. Whereas Mr. G. M. Mir was appointed as Special Judge for the Sessions Divisions of Anantnag, Baramulla, Sringar and Ladakh vide SRO 180, Mr. K, K, Mahajan was appointed as Special Judge for the Sessions divisions of Doda, Udampur, Jammu, Kathua and Poonch-Rajouri. The present position is that whereas Mr. G. A. Kuchhai is Special Judge for Kashmir Province, Mr. S. M, Rizvi is Special Judge for Jammu Province. The net result is that ever since SRO 20 dated 16-1-1,975 came to be issued, ail Sessions Judges and Addl. Sessions Judge, ceased to be Special Judges under the Amending Act,
4. The next question which then falls for determination is.:
Did the Sessions Judge have any power to pass the impugned order?
Chapter XXLIII of the Cr. P. C. deals with the disposal of property. Section 516-A empowers the court during enquiry or trial to make such order as it thinks fit for the custody or disposal of the property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence. This section has no application to a case which is still at the stage of investigation. Then comes Section 517. Under this section the Court has power to pass an order for disposal by destruction confiscation or delivery of such property but only when the enquiry or trial is concluded. This section too, has no application to a case in which investigation is still going on. , The only other section is Section 523. Under this section a magistrate has power to pass an order for the disposal or delivery of any property which has been recovered by a police officer from any person arrested by him on his personal search, or which is alleged or suspected to have been stolen or found under circumstances which create suspicion, of the commission of any offence. A magistrate execising powers under this section may deliver such property to the person who in his opinion is entitled to its possession and may in has discretion attach any condition, to sach delivery which he considers necessary. In case he is unable to decide as to who is entitled to its possession, he may pass any other order respecting the custody or production of the property as he deems proper. An order for delivery or disposal of the property during the stage of investigation, therefore, clearly falls under this section. Any magistrate before whom such property is produced may, pass an order for its disposal, delivery, custody or production, whether or not he is competent to try or commit for trial the accused in the case in which the property has been seized. There is nothing in Schedule-Ill to the Code of Criminal Procedure which in any way abridges the powers of the magistrate before whom ;the property has been produced or who directs that the property be produced before him, to pass an order under this section.
One clear distinction between Section 516-A and 517 on the one hand and Section 523 on the other hand is, of course, there. Whereas Sections 516-A and 517 speak of 'criminal court', Section 523 speaks of 'magistrate'. Under this section, therefore, a Sessions Judge and Addl. Sessions Judge or an Asstt. Sessions Judge, has no power to take any action. A Sessions Judge or an Addl. Sessions Judge, unless he has been appointed as a Special Judge under Section 6 of the Amending Act, has no power to pass any order regarding the custody, production, delivery or disposal of the property seized in a case exclusively triable by a Special Judge. He cannot even release an accused person on bail arrested in such a case, as he is neither competent to try the accused nor even competent to commit him for trial, committal proceedings even being otherwise unnecessary in such cases.
A Special Judge may, however, by necessary implication be deemed to be a magistrate under Sections 167 and 523. The Amending Act not being a complete Code so far as procedure is concerned the Special Judge can exercise the powers of a magistrate under the Code of Criminal Procedure in relation to a case which is exclusively triable by him provided exercise of such powers is not inconsistent with the provisions of the Amending Act. There is nothing in the Amending Act which debars a Special Judge from passing an order as a magistrate in terms of Section 523. Just as he is not a magistrate and can yet release an accused person on bail, so also he can pass an order as a magistrate for the disposal, delivery, custody, and production of any property seized in a case exclusively triable by him while the case is still at the stage of investigation. The magistrates would be well advised in staying their hands off in cases exclusively triable by Special Judges, no matter that they too have concurrent jurisdiction with the Special Judges in taking action under Section 523, It would be more appropriate to give the Special Judges a free hand in passing proper orders in such matters as it is they who have to ultimately try the accused in such cases and are in a better position to use their discretion. In taking this view I am supported by the observations of their Lordships of the Supreme Court in State of Tamil Nadu v. Krishnaswami : 1979CriLJ1069 wherein it was held:.The Criminal Law (Amendment) Act being an Amending Act the provisions are intended to provide for a speedy trial of certain offences. The Criminal Law (Amendment) Act is not-intended to be a complete Code relating to procedure. The provisions of the Cr. P. C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act, Thus read there could be no difficulty in coming to the conclusion that the Cr. P. C. is applicable when there is no conflict with the provision of Criminal Law (Amendment) Act....
This is the view which has been impliedly taken in another Supreme Court Judgment viz. Rani Prakash v. State of Haryana : 1978CriLJ1120 wherein the Court observed as under:.A11 that we need do at the moment is to uphold the power of the court to release the property -and direct the Special Judge to hold an investigation into the necessity for the notes seized to be retained with the police or in the Court for future use at the time of the inquiry or trial. If he is of the opinion that the notes are so required', the property shall not be released. If, on the other hand, the notes are not needed to any manner in the latter stages of the inquiry or trial, it will be proper for the court to release the property on the appellant furnishing adequate security.
Mr. Bakhshi, is, therefore, right in contending that the Sessions Judge had no jurisdiction to pass the impugned order.
5. Be that as it may, it would not be in the interests of justice to restore status quo ante and leave the parties to undertake another bout of litigation. The A. C. O. acted without due care and caution in locking the entire stock of cement lying in the store of M/s, K, C. Vanaspati, It ought to have identified the stolen property and seize it after preparing a seizure memo. The case is yet at the stage of investigation and once a challan is put up against the accused, the Special Judge on conclusion of the inquiry or trial, as the case may be, may have to pass some order in regard to the disposal or delivery of the seized cement. The trial or enquiry is not likely to conclude early and there is every apprehension that the cement may be rendered useless by the time the Special Judge has an occasion to pass such an order. Cement is incapable of being identified, though it may be possible to identify the bags containing the cement. There would be, therefore, no point in producing the cement in court at any stage of the inquiry or trial.
To obviate the chances of any loss which may thereby occur to the State in the event of an order of conviction and to the accused in the event of an order of acquittal, it is necessary to pass some order in regard to the disposal of the seized cement. While upsetting the order of the Sessions Judge, I in exercise of my inherent powers direct that the A.C. O. will identify' the stolen property and work out its value in accordance with the rate fixed by the Govt. It shall obtain a Supradnama of the total amount thus calculated from the owner of M/s. K. C. Vanaspati with a further undertaking that he shall produce the said amount in the competent court if and when required to do so. The A. C. O. may also seize the empty bags containing the cement in case it is felt that the same are' capable of being identified during the inquiry or trial This order shall be complied with within a week from today and compliance report sent to the Deputy Registrar.
6. Revision Petitions Nos. 84 & 85 of 1979 are disposed of accordingly.