Sri Krishna Industries vs State of Mysore and Another

B. Venkataswami, J.—The petitioner herein claiming to be the owner of the goods, i.e., rolls of stainless steel sheets, made an application before the Judicial Magistrate First Class. (III Court) Bangalore, seeking for an order u/s 523, Cr. P. C. The specific prayer is that the rolls may be delivered to him on account of certain circumstances set out by him in his application, as he is the person entitled to it. The said application was made in C. R. Nos, 35 and 36 of 1973 before the learned Magistrate.

It would appear that the rolls in question were seized from two lorries and according to the prosecution, were concerned with the commission of an offence u/s 5 of the Imports and Exports Control Act. It may be relevant to note that as per the contents of the application made before the learned Magistrate by the police, they were of the view that apparently these goods were concerned with the commission of such offence. At that stage, the present petitioner had not appeared before the court making a claim as to the possession of such goods. The learned Magistrate acting in exercise of his power u/s 523. Cr. P. C. directed that the goods might be kept in the custody of the police pending investigation, Subsequent to this order, the petitioner approached the court by the aforesaid application.

The learned Magistrate was of the view that be had no authority to review an order made by him under-Section 523. Cr. P. C, It is in this context that the petitioner has approached this Court.

It seems to me that the view of the learned Magistrate that he could not review the order in question is erroneous. I say this for two reasons- (1) Section 523 Cr. P.C. no doubt enjoins a Magistrate to make an order in his discretion. It is further to be seen therein that his discretion to directed custody of such property is to be guided by two circumstances set out therein. He is at liberty to deliver such property to the person entitled to the possession thereof or if such person can-not be ascertained, some other provision (sic) respecting the custody and production of such property. The order in question appears to fall under the second category. It is to be remembered that the petitioner was not before the court at the time this order was made. It is, therefore, clear that the petitioner, who. in my opinion, on the allegations before me falls within the first category thereof, would be entitled to request the court to make an order in his favour in accordance with it. Since he has no opportunity to make this application at an earlier stage, he would certainly be entitled to apply to the court for such custody as has been done in the present case. If the property has been ordered to be in the custody of the investigating authorities. such custody, in my opinion, is still custodia legis. To put it differently, the Magistrate does not lose jurisdiction over such property. In such a situation the application of the petitioner would be competent and no question of review would in substance arise.

The second reason is that any order made u/s 523. Cr. P. C. is only of a temporary character. The moment a charge-sheet is placed by the investigating authority, this order comes to an end and a fresh order would, perhaps, become necessary u/s 516-A, Cr. P. C. In this view, any review of a temporary order would not be outside the purview of a review if circumstances warrant gush a step.

For the above reasons. I set aside the impugned order and remit the matter back to the lower Court with a direction that he should proceed to consider the application of the petitioner afresh on its merits and in accordance with law. It is needless to point out that the prosecution must be heard before any final order is made on such an occasion. It is further necessary to direct the learned Magistrate to dispose of the application as expeditiously as possible.