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1969 DIGILAW 374 (ALL)

Mahant Dhru Das v. Niyaz Ahmad

1969-11-21

O.P.TRIVEDI

body1969
JUDGMENT O.P. Trivedi, J. - This criminal reference has been made by the Sessions Judge, Barabanki, with a recommendation that the order passed by the Add]. District Magistrate (Judicial), Barabanki, on August 2, 1969 may be quashed. 2. It appears that Waheed who claimed to be in the service of Niyaz Ahmad opposite party No. I lodged a report with the police that haiku who had been entrusted by Niyaz Ahmad with a she-elephant belonging to Niyaz Ahmad, had through criminal breach of trust passed on the animal to Mahant Dhru Das. Upon this report the she-elephant was seized from the custody of Mahant Dhru Das and Maiku was arrested for the offence of criminal breach of trust. Niyaz Ahmad moved an application before the Addl. District Magistrate (Judicial), Barabanki praying that the elephant may be delivered to him on the ground that it belonged to him. An objection was raised by Mahant Dhru Das who claimed delivery of the animal on the ground that he had purchased it from Maiku through a bonafide transaction. The Addl. District Magistrate (Judicial) called for a report from the police and the police reported that Niyaz Ahmad was owner of the elephant. On the basis of this report the Magistrate ordered on August 2, 1969 that the she-elephant shall be delivered to Niyaz Ahmad on his furnishing security in the sum of Rs. 5000/- and the elephant shall remain in his custody subject to the condition that lie shall produce the animal if and when required by the i Magistrate. 3. Mahant Dhru Das filed a revision against this order before the Sessions Judge, Barabanki. The learned Sessions Judge expressed the opinion that the order could not be passed by the Magistrate under section 516-A, CrPC and that it should not be passed in favour of Niyaz Ahmad u /S. 523, CrPC also as the animal had been seized from the possession of Mahant Dhru Das and his possession could not be disturbed unless it was found that the same was unauthorised and unlawful. For this reliance was placed by the learned Sessions Judge on M/s. Purshottam Das Banarsidas v. State, 1952 Cr LJ 856. The question in the case is whether the order of delivery of the elephant in favour of Niyaz Ahmad could or could not be passed by the Magistrate under section 523, CrPC. For this reliance was placed by the learned Sessions Judge on M/s. Purshottam Das Banarsidas v. State, 1952 Cr LJ 856. The question in the case is whether the order of delivery of the elephant in favour of Niyaz Ahmad could or could not be passed by the Magistrate under section 523, CrPC. S. 523(1), CrPC provides that if a property is seized by a police officer under section 51 or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence it shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the disposal of such property or 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. It cannot be disputed that this was a case in which the property had been seized by the police under section 550, CrPC because the elephant was found in the circumstances which created suspicion of the commission of an offence. Therefore, the case attracted the provision of S. 523 (1) CrPC. The question is whether acting under this provision the Magistrate could order delivery of the elephant to Niyaz Ahmad who claimed to be owner of the elephant on his own allegations and on the report submitted by the police. I am of the opinion that on the facts of this case such an order of delivery of the elephant could be passed by the Magistrate in favour of Niyaz Ahmad under section 523 (1), CrPC. The words I "entitled to the possession thereof" used in S. 523 (1) are to my mind of very wide amplitude. On account of these words the Magistrate at the time of passing the order of delivery u/S 523 (1), CrPC, need not confine himself to the question of possession but may enter into the entitlement of the claimant to possession. Consideration of entitlement of a person to possession clearly implies that the order need not be based soley on consideration of possession but other considerations such as right, interest or title of the claimant may be taken into consideration for determining his title to possession. Consideration of entitlement of a person to possession clearly implies that the order need not be based soley on consideration of possession but other considerations such as right, interest or title of the claimant may be taken into consideration for determining his title to possession. As his rights, title and interest are taken into account for determining who is the person best entitled to possession it cannot be said that the Magistrate in passing the order of delivery under section 523, CrPC, is embarking on adjudication of title. What he is deciding is the title of the claimant to possession. The scope of the inquiry under section 523, CrPC being therefore so large, it is open to a Magistrate to order delivery of property to its owner also. I am of the opinion that the case of Purshottam Das Banarsi das is distinguishable and could not govern a case like the present one. This is evident from the observations contained at page 862 of the report itself. In that case Sri Pathak, learned counsel for the other side, had referred to the case of A. K. A. R. A. Chettyar v. Ma Saw Hla, A.I.R. 1937 Ran 450 in support of his argument that under section 523 a Magistrate is authorised to direct delivery of the property in favour of the owner of the property and he is not bound to direct delivery in favour of the person who was in possession at the time of seizure of the property. In that case certain property belonging to M was stolen by Y and pledged by him with Y. The property was recovered from the possession of X and then it was ordered by the Magistrate to be restored to him. Hackney, J. at page 451 of the report observed as follows :- "Where the known facts plainly show that the property has been stolen. Hackney, J. at page 451 of the report observed as follows :- "Where the known facts plainly show that the property has been stolen. it would be intolerable to allow the person in whose possession the property is found to retain it as against the rightful owner, and force the latter to a civil suit for its recovery if the accused absconds." Desai, J. distinguished this case with the following observations which have pertinence for the present discussion : "Our law makes a distinction between stolen property and property, the possession of which has been transferred from the rightful owner to another person through the commission of an offence of cheating. Property, the possession of which has been transferred from the rightful owner to another person through the commission of offences of theft or extortion or robbery or criminal misappropriation or criminal breach of trust is 'stolen property, but the other property is not 'stoken property". In making these observations the learned Judge had in his mind the definition of 'stolen property' as given in S. 410, IPC. This is a case in which property was said to have come into the possession of Mahant Dhru Das by the commission of an offence of criminal breach of trust by Maiku. It was therefore stolen property and therefore the considerations which weighed with Desai, J. in the case of Purshottam Das Banarsi das in which the property had passed through a pledger as a result of an offence of cheating did not apply. I am therefore of the opinion for the reasons outlined above that the Magistrate was competent to order delivery of the elephant to Niyaz Ahmad under section 523 (1), CrPC. The order of the Magistrate was perfectly legal and therefore this reference cannot be accepted. 4. The reference is rejected and the order of the Magistrate dated August 2, 1969 is confirmed. The stay order is vacated.