Basudeb Surma Gossain and Another vs Naziruddin

Two persons were brought before the Extra Assistant Commissioner, a Magistrate of the first class at Tezpore, charged with criminal misappropriation of an elephant. They were discharged. The Magistrate, however, u/s 517 of the Criminal Procedure Code, ordered the elephant to be given to the Executive Engineer, During, holding that it was the property of Government, and the elephant has consequently been made over to that officer by the police. We are of opinion that the Magistrate was not competent to pass this order u/s 517 of the Criminal Procedure Code, because the elephant was not property produced before him regarding "which any offence had been committed or which had been used for the commission of any offence," the Magistrate having held that no offence was committed regarding this animal. We, therefore, set aside this order, although we are unable to give it any effect by ordering the restitution of the elephant. In this matter we follow the case of In re Annopurna Bai 1 B. 630. The rule is made absolute without costs.