Emperor vs Haribandhu Patro

Meredith, J.—This is a reference u/s 438, Criminal P.C., made by the learned Additional. District Magistrate, Ganjam, in the following circumstances. A first information report was lodged by the driver of one B. Kantaya of the Krishna Motor Service before the police of Parlakemedi, alleging that the bus O.R.G. 3 which had been entrusted by B. Kantaya to him for plying was taken away by certain persons. The police on investigation found that the persons complained against were claiming to have contributed some portion of the money with which B. Kantaya purchased the bus and that as B. Kantaya did not give them their share of the profits they took away the bus. Hence the police submitted a final report, stating that it was a case of civil nature.

On 8-11-1946, during the pendency of the proceedings the Magistrate handed the bus over to Kantaya, upon his executing a bend for Rs. 15,000, but on 25th November after the police final report the Magistrate ordered that the bus should be made over to the persons from whom the police had seized it, that is to say, to the accused.

The learned District Magistrate recommends that this order be set aside. He points out that u/s 523, Criminal P.C., property which is seized by the police is to be returned, not to the person from whom it was seized but to the person found entitled to the possession thereof. In the present ease, he says, there was no dispute as to the person entitled to the possession of the bus, as the bus had been registered in the name of B. Kantaya who also held the route permit and had been plying the service bus. The Magistrate had not come to any definite Ending that the accused persons were these entitled to possession. The District Magistrate considered, therefore, that in the circumstances as the act of the accused was nothing but an act of violence under a colour of a civil claim the bus should have been left with B. Kantaya to whom it was originally made over.

It is argued before me that the learned Magistrate had no jurisdiction to make this reference u/s 438, because such references must be confined to cases of conviction, bail and so on in judicial proceedings. I find no warrant, however, for restricting the operation of Section 438, which is in very wide terms, in this way. Moreover, the order in regard to which the reference was made was an order in judicial proceedings, in the course of which a protest petition treated as a complaint had been made by Kantaya and dismissed u/s 203. It is said that the order of the Magistrate was not a judicial but an administrative order. I cannot agree with that. It was an order u/s 523, Criminal P.C., and as such was a judicial order. Section 523 entitles the Magistrate to inquire judicially into the question, who is entitled to the possession of the article.

Finally it is said that on the merits the Magistrate''s order was correct, and as the police had reported no offence was committed the proper course was to return the bus to the person from whom the police had seized it. As I have already said, Section 523 does not say so, but that the article should be made over to the person found entitled to possession.

A number of rulings have been cited against the reference, namely, Sattar Ali Vs. Afzal Mahomed, , Karuppanan v. Guruswami AIR 1933 Mad. 434, Lakshmichand Bajmal v. Gopikisan Balmukund AIR 1936 Bom. 171 and Ghulam Ali v. Emperor AIR 1945 Lah. 47 . All these cases, however, are autherities only upon their own particular facts, and what is the proper order to pass u/s 523 in each case must depend upon the facts of that particular case. In Rama Aiyar and Another Vs. S.P. Das Gupta, it was held that the Magistrate has a right to order the resumption of the status quo, so that the rights of the parties might be determined in the civil Court, and in Nallusami v. Nallammal AIR 1943 Mad. 392 it was held that the Magistrate should order restoration of property taken by violence. There seems to be no doubt in the present case that the bus was taken by violence from Kantaya''s driver. The restoration of the status quo would be to return it to Kantaya, or his driver, the complainant. As the learned Additional District Magistrate has pointed out, in this case Kantaya, had purchased the bus, and he held the licence and route permit.

In the circumstances of this case, and particularly having regard to the fact that the Magistrate had originally made the bus over to Kantaya on 8th November, and subsequently took it away from him again, I think the view of the learned District Magistrate is the correct one. I, therefore, accept this reference, and direct that the bus be handed, over, as recommended by the learned Additional District Magistrate.