Ramsagar Yadav and Another vs M. Yunus and Another

Agarwala, J.—In 1933 a certain plot of land was settled with the petitioners by the landlord for one year. Although the settlement was for this limited period, it appears that the petitioner did not give up possession on the expiry of the period. In 1938; the land-lord purported to settle the land with the opposite party. The present proceedings date from a letter which the landlord wrote to the police informing them that the petitioners were cutting the unripe paddy growing on the plot. On receipt of this information, the Sub-Inspector went to the. plot in question and found both parties there and that the crop had been cut. In view of the allegations in the landlord''s letter to the police it would appear that the crop had been cut by the petitioners.

The police reported the matter to the Magistrate apprehending that there might be a breach of the peace and suggesting that proceedings should be taken u/s 144, Criminal P.C. As the crop had already been cut, the Magistrate disagreed with the police suggestion that there might be a breach of the peace. He ordered that the paddy should be returned to the person from whom it had been recovered. The police thereupon reported that they had not recovered the paddy from any of the parties, meaning that they had merely ''taken it from the land on which it had been lying after having been cut. They therefore asked for the Magistrate''s direction. The Magistrate then observed that it was not possible to pass an order about the disposal of the property without coming to a definite conclusion about its possession. He considered that, having refused to take proceedings u/s 144, Criminal P.C., he was not competent to investigate the question as to who was in possession of the paddy, He therefore directed the police to retain it in their custody and if it was liable to decay, to sell it, and deposit the money in safe custody pending orders from a proper Court.

It is against that order that the petitioners have moved this Court. The Sections of the Criminal Procedure Code empowering a police officer to seize property are Sections 51, 54, 165, 166 and 550. The last mentioned Section is in these terms:

Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

It is clear that neither Section 51 nor Section 54 nor Section 165 nor Section 166 applied to the facts of this case. On the other hand the landlord had written to the police, informing them that the petitioners were cutting unripe paddy on land which did not belong to them. This allegation, if true, was an allegation that the petitioners were committing mischief and therefore would have entitled the officer to seize the paddy u/s 550, Criminal P.C. As there appears to be no other authority for the seizure of the paddy in this case, it must be presumed that it was in the exercise of the powers under this Section that the police acted.

The question now is as to how the money which represents the paddy that was seized is to be disposed of, The only Section of the Code which appears to have any application is Section 523. The material portion of the first Sub-section of that Section is as follows:

The seizure by any police officer of property taken u/s 51�.or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.

The second Sub-section is in this language:

If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto to appear before him and'' establish his claim within six months from the date of such proclamation.

Had the Magistrate in this case purported to act under the powers conferred by this Section, this Court would not have interfered with his order. But as the Magistrate has taken the view that he has no power at all to deal with the matter, it is clear that he has not judicially exercised the discretion which the Section confers on him. The case must therefore go back to the Magistrate to enable him to exercise the discretion conferred on him by Section 523, Criminal P.C. In considering the matter the Magistrate will bear in mind Section 110, Evidence Act, which provides:

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

If the Magistrate decides that one or, other of the parties was in possession at the time the police seized the property, the proper order to be passed will be to restore that party to possession. If the Magistrate is unable to decide who is in possession, it will be his duty to issue a proclamation under Sub-section (2) of Section 523 and proceed in accordance with the provision of that Sub-section. The'' order of the Magistrate complained against is set aside and the case will be sent back to be disposed of in accordance with the directions given in this judgment.