JUDGMENT 1. This was a Rule calling upon the District Magistrate and the. Opposite Party to show cause why the articles taken from the Petitioner's house should not be returned to him on the grounds mentioned in the petition. It appears that certain properties were found in the Petitioner's house which the complainant alleged had been stolen from his house when a burglary and theft had been committed. The evidence as to the identity of the accused with the commission of the crime was the evidence of a witness who said that he had recognised the accused from his voice. The accused was convicted by the trying Court and on appeal to the Appellate Court the conviction was upheld. Thereupon the preset Petitioner moved this Court with the result that the following order was passed by this Court: "We have perused the explanation of the Magistrate in answer to the Rule ; we are not satisfied that the conviction of the Petitioner is sound. We therefore make this Rule absolute and set aside the conviction and sentence passed on him and he will be forthwith released from jail." This is an acquittal by this Court. It further appears that the Petitioner was convicted in the above case on the nth March 1913, and that conviction of the accused was upheld by the Sessions Judge on the 21st April 1913. It appears from the Malkhana register that on the 29th April 1913, the trying Magistrate passed an order to the effect that the properties which were then in the custody of the Court should be made over to the complainant of that case who is the Opposite Party in the present Rule. Admittedly no order under sec. 517 was passed on the record of the case. In the Malkhana of a Magistrate all kinds of properties either consecrated or which are the subject of some offence are kept and then after the decision they are restored to the parties entitled to them. The Malkhana register forms no pan of any criminal case, unless it is brought on the record in a legal way. Subsequent to the passing of this order on the Malkhana register the Petitioner moved this Court and this Court acquitted the accused. The Malkhana register forms no pan of any criminal case, unless it is brought on the record in a legal way. Subsequent to the passing of this order on the Malkhana register the Petitioner moved this Court and this Court acquitted the accused. On the 2nd July, sometime after the acquittal by this Court, the Petitioner applied to the trying Court for the restoration of the properties on the ground that these properties were brought into Court from his possession and that he was entitled to have them restored to him inasmuch as he was acquitted of the offence by the High Court. The Magistrate thereupon sent the matter to the Police. The Police thereupon wrote to the Magistrate in the following terms :--"The property in question is claimed by both the complainant and the accused. I do not know to whom it will be returned. There is an order already made in the Malkhana register to the effect that the property to be returned to the complainant. Order as to whom it will be returned solicited." This letter is dated the 5th of July. The Magistrate in his explanation says that this register is the Malkhana register. Then we find, on the 9th July there is an order by the Magistrate in the following terms :"Court Inspector will please report after perusal of the judgment." Then the Court Sub-Inspector wrote to the Peshkar Babu asking him to supply the record. Then there is a letter by the Court Inspector, named A. Sen, dated the 20th July 1913, in the following terms :--"I have gone through the record of the case. In view of the Sessions Judge's finding all properties seem to belong to the complainant to whom they should be returned. Evidence for a conviction might not be sufficient. But that does not alter the situation." And we find there is an order by the Magistrate :"I am of the same opinion." Against that order the Petitioner moved this Court for the restoration of the properties in question to him. 2. On behalf of the Opposite Party, it has been contended that the order passed by the trying Magistrate on the 29th of April was a legal order, and that this Court has jurisdiction to interfere with the order. We are, however, of a different opinion. The order of the 29th of April was either an order under sec. 2. On behalf of the Opposite Party, it has been contended that the order passed by the trying Magistrate on the 29th of April was a legal order, and that this Court has jurisdiction to interfere with the order. We are, however, of a different opinion. The order of the 29th of April was either an order under sec. 517, Cr. P. C., or it was not. If it was an order under sec. 517, Cr. P. C., this Court has jurisdiction to interfere with that order under sec. 520 of the Cr. P. C. That is to say, we can pass an order staying the carrying out of that order. If the order of the 29th April was not an order under sec. 517 on the ground that it was not passed on the record and that it was not passed in the presence of the parties in that case, it may not be an order under sec. 517, Cr. P. C. But on the 2nd of July, the present Petitioner applied to the trying Magistrate for the restoration of these properties, and certain order has been passed on that petition. It was to the effect that that Court was not in a position to revise the order of the 29th April. This is no doubt an order under sec. 517, Cr. P. C, and this Court has jurisdiction to interfere wit it under sec. 520, Cr. P. C. It has also been contended on behalf of the Opposite Party that the matter before us is under sec. 439, Cr. P. C. But the learned Vakil for the Petitioner informs us that the application to this Court was not made under sec. 439, but under sec. 520, Cr. P. C. In either case this Court has got jurisdiction. "Sec. 435, Cr. P. C., clearly provides that the High Court . . . . 439, Cr. P. C. But the learned Vakil for the Petitioner informs us that the application to this Court was not made under sec. 439, but under sec. 520, Cr. P. C. In either case this Court has got jurisdiction. "Sec. 435, Cr. P. C., clearly provides that the High Court . . . . may call for and examine the record of any proceedings before any inferior Criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded as passed and as to the regularity of any proceedings of such inferior Court." Sec. 439 provides that "In the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may in its discretion exercise any of the powers conferred on a Court of Appeal by secs. 195, 423, 426, 427 and 428." When we refer back to sec. 423, we find thus : "The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the Appellant or his Pleader, if (sic) and the Public Prosecutor, if (sic) and in case of an appeal under (sic) the accused, if he appears, (sic) if it considers that there is no sufficient ground for interfering, dismiss the appeal or may [cl. (a)] make any amendment or any consequential or incidental order that may be just or proper." So any order passed under sec. 517, Cr. P. C., may be amended by us under cl. (d) sec. 423, Cr. P. C. 3. Lastly, it has been contended that the present Petitioner moved this Court against his conviction and sentence in the original case. He did not apply for the restoration of the properties in the event of his acquittal by this Court. 517, Cr. P. C., may be amended by us under cl. (d) sec. 423, Cr. P. C. 3. Lastly, it has been contended that the present Petitioner moved this Court against his conviction and sentence in the original case. He did not apply for the restoration of the properties in the event of his acquittal by this Court. It seems to us that it is quite clear from the record that nobody knew that the Magistrate had passed any order in favour of the complainant in that case for the restoration of the properties ; evidently the order of the 29th April was an order outside the case, and something like an instruction given by the Magistrate to a Subordinate Officer as to how he should deal with certain properties. The Petitioner's own application which he filed on 2nd July does not mention that any order has been passed and that order should be set aside on the ground of his acquittal by the High Court. It seems to us doubtful that even the complainant knew that such an order was passed. Sec. 517, cl. (3) provides that "when an order is made under this section in a case in which an appeal lies, such order shall not (except when the properly is live stock or is subject to speedy and natural decay) be carried out until the period allowed for presenting such appeal has passed, or, when such appeal is presented within each period, until such appeal has be (sic) proposed of." Clearly the intention of (sic) legislature is this, that on passing (sic) like the one in the present case, (sic) should not be carried out at once, that is to say, the properties although ordered to be given to a party should not be made over to him until either the period of limitation for preferring an appeal has expired, or the appeal filed has been disposed of. The intention of the Legislature seems to be that until the order really becomes final either by there being no appeal within the prescribed period or by any final order by a Court of final jurisdiction, the property is to be kept in the custody of the Court, that is to say, if an order has been passed as in the present case that the property should be made over to the complainant, that order should not be carried out at once, because it is possible that this order may become infructuous on the accused being acquitted by a Court of higher jurisdiction, for in that case the order will have to be changed. 4. After an accused has been acquitted of the offence of theft or burglary, the proper order to make is to direct that the property found in the possession of the accused should be restored to him. The complainant in that case could go to the Civil Court, file a suit and secure an order of injunction. For the above reasons we make this Rule absolute. The properties in question should be made over to the Petitioner.