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1982 DIGILAW 204 (KAR)

GANESH NAYAK v. DYAMAPPA ADIVEPPA

1982-09-15

M.S.NESARGI

body1982
M. S. NESARGI, J. ( 1 ) THIS petition is directed against the order dated 1. 5. 81 passed by the judl. Magistrate I class Hirekerur, in private Complaint No. 42 of 1980, allowing the application filed by the respondent and ordering that the she-buffalo in the case be returned to the respondent on certain conditions, the undisputed facts are that the respondent Dyamappa filed a complaint on 20. 12. 80 before the Magistrate under S. 200 Crl. P. C. that the accused had committed theft of his she- buffalo and its calf. On the same day he filed an application under S. 94 crl. P. C. The magistrate did not pass any order on the application, under S. 94 of the Code. In regard to the complaint filed under S. 200 of the Code, he directed investigation by the poli:e in exercise of his powers under sec. 156 (3) of the Code. The police investigated into the case in accordance with the provisions in Chapter XII of the code; During the investigation, they seized the buffalo and its calf from the possession of the accused-petitioner, as is clear from the panehanama recorded in that behalf. In accordance with the provisions in S. 457 of the Code the investigating officer reported the seizure to the Magistrate. At that stage both, the petitioner and the respondent complainant filed applications for possession of the buffalo on the ground that each one of them is entitled to possession, thereof. ( 2 ) THE learned Magistrate rejected the application filed by the petitioner and allowed the application filed by the respondent complainant, and directed that the possession of the buffalo and the calf be given to the respondent- complainant. That is the order now impugned. ( 3 ) THE fact that no order has been passed by the Magistrate on the application filed by the respondent - complainant under S. 94 of the Code, shows that it was kept pending on the file of the magistrate. The fact that the Magistrate referred the complaint for investigation to the police under S. 156 (3) of the Code clearly demonstrates that he directed the police to investigate into the allegations in the complaint made by the respondent complainant in exercise of their powers and in accordance with the procedure provided in Chapter XII of the Code. The fact that the Magistrate referred the complaint for investigation to the police under S. 156 (3) of the Code clearly demonstrates that he directed the police to investigate into the allegations in the complaint made by the respondent complainant in exercise of their powers and in accordance with the procedure provided in Chapter XII of the Code. ( 4 ) IN view of that, the police did get powers to seize the subject-matter of the complaint - in this case the she-buffalo and its calf. In, fact it is undisputed that the same were seized from the possession of the accused petitioner as is clear from the panchnama. Therefore, the seizure of the she buffalo and its calf from the possession of the accused petitioner cannot be said to have been made by the police in view of the application under S. 94 of the Code filed by the respondent Complainant. ( 5 ) WHEN the afore-mentioned facts are as clear as narrated above, the learned magistrate has looked into the facts averred in the complaint in regard to the description of the she-buffalo and its calf and come to the conclusion mat it appeared to him that they were of the owneship of the respondent-complainant and, therefore, he was entitled to possession. The very fact that the Magistrate did not take cognizance of the offence on the filing of the complaint under s. 200 of the Code by the respondent- complainant;' shows that the Magistrate was not satisfied that prime, facie a case of offence of theft had been made out. He required) investigation and report by the police to enable him to decide whether he should or should not take cognizance of the offence of theft in accordance with the provisions of S. 190 of the Code. Therefore, it would be too far-fetched to hold that simply because the respondent-complainant had given full description of the she-buffalo and its calf in his complaint, he appeared to be the owner of the same. This reasoning of the Magistrate cannot be sustained- When that it is so, the only thing that remains is the fact that the she-buffalo and its calf were seized from the possession of the petitioner accused. This reasoning of the Magistrate cannot be sustained- When that it is so, the only thing that remains is the fact that the she-buffalo and its calf were seized from the possession of the petitioner accused. The afore-mentioned facts and reasons make it abundantly clear that, the material before the Magistrate was not sufficient enough to decide as to who was entitled to possession of the she buffalo and its calf. In that case, the settled principle in law is that the order of disposal of property under S. 467 of the Code should be in favour of the person from whom the property in question is seized. If after the police file their final report under S. 173 of the Code and if the Magistrate decides to take cognizance of the offence of theft and proceeds against the accused and thereafter if the respondent complainant succeeds in the case, final order of disposal of property will have to be made and that too under S. 452 of the Code in favour of the respondent-compainant that stage has not yet arrived. Therefore, the only order that could have been passed by the Magisirate was to direct that the possession of the she- buffalo and its calf should be given to the petitioner on imposing proper conditions to ensure that he produces the same before the Court whenever called upon to do so. ( 6 ) IN the result, I allow this revision petition and set aside the order dated 1. 5. 81 passed by the Judicial Magistrate first Class, Hirekerur, in Private Complaint no. 42 of 1980. I direct the Magistrate to hear the parties in regard to the conditions to be imposed as it is his duty to see that the she-buffalo and its calf are produced before the Court until he is able to dispose of the case instituted by the respondent - complainant, and pass suitable orders bearing in mind the observations made in the body of this order. --- *** --- .