Judgment Heard learned Advocate Mr. A.A. Naik for the applicant and the learned Additional Public Prosecutor Mr. M. J. Khan for the respondent/State. 2. Admitted and heard by consent of the parties. 3. The applicant Krishnanarayan Bhagwat Tiwari has moved this Court under Section 482 of Criminal Procedure Code for quashing and setting aside the order passed by the learned Ad hoc Additional Sessions Judge-1, Nagpur in Criminal Revision No.135 of 2011, upholding the order of the learned Judicial Magistrate First Class, Nagpur. The order impugned before the learned Adhoc Additional Sessions Judge is dated 26112010 passed by the learned Judicial Magistrate First Class, Nagpur in Misc. Criminal Application No.1303 of 2010. 4. The applicant is the original complainant in Crime No.126 of 2010 of Yashodhara Nagar Police Station, Nagpur. The applicant had filed a complaint for the alleged theft of gold ornaments weighing 60 Tolas from the Marriage Hall where his son's marriage was to be performed. Pursuant to the said complaint, the said Crime No.126/2010 was registered under Section 457, 380 of the Indian Penal Code against unknown persons. During the course of the investigation, the accused nos.1 and 2 were arrested. It is the case of the non-applicant that the gold ingot weighing 16 tolas was seized from the possession of the accused no.3 on the basis of the statement made by the accused no.2 under Section 27 of the Evidence Act. The learned Magistrate was of the view that unless it was decided as to who is the owner of gold ingot, it was not safe to release the same in favour of the applicant. The learned Additional Sessions Judge, in his order dated 9-6-2011, in Revision Application No.135 of 2011, took the view that since the gold ingot seized by the police is not in the same form in which gold ornaments were allegedly stolen, the gold ingot could not be returned to the applicant. 5. In my view, the view expressed by both the Courts below are not correct. Though the application was filed under Section 457 of Criminal Procedure Code, it was to be decided following the provisions of Section 451 of the Criminal Procedure Code as the chargesheet had been filed during the pendency of the application. The chargesheet has been filed on 18-9-2010 against the accused nos.1, 2 & 3. The application has been decided by the Magistrate on 26-11-2010. The chargesheet has been filed on 18-9-2010 against the accused nos.1, 2 & 3. The application has been decided by the Magistrate on 26-11-2010. The application, therefore, was necessary to be considered in accordance with the provisions of Section 451 of Criminal Procedure. Section 451 of Criminal Procedure Code gives wide discretion to the Magistrate to pass suitable order for safe custody of the property during the pendency of the trial. It was not necessary for the Magistrate to consider whether the applicant was able to prove the ownership of the property. The Magistrate should have considered that the applicant/complainant had filed the complaint for theft of gold ornaments. During the course of the investigation, it was revealed that gold ornaments were sold to accused no.3 by accused no.2. It was further revealed that accused no.3 had melted gold ornaments and the prosecution alleges that the gold ingot seized by them is made of melted ornaments. This being the case of the prosecution, which supported the application of the applicant, the Magistrate should not have ventured to decide the ownership at an interim stage. The Magistrate should have realized that it was temporary custody. The limited area of enquiry was to ascertain whether the applicant was a suitable person to give custody of the property. However, it is not just and proper to pass any final order at this stage directing the disposal of the property, particularly, handing over the property to the applicant because the accused no.3 from whose custody the gold ingot has been seized was not heard when the application of the applicant/complainant was decided by the learned Magistrate. Hence, I pass the following order. (i) The order passed by the Judicial Magistrate First Class at Nagpur dated 26-11-2010 in Misc. Criminal Application No.1303 of 2010 and the order passed by the Adhoc Additional Sessions Judge-1 Nagpur, in Criminal Revision No.135 of 2011 dated 9-6-2011 are set aside. (ii) The applicant is directed to file a fresh application under Section 451 of Criminal Procedure Code making accused no.3 as a necessary party. (iii) The learned Magistrate shall decide the application after hearing the application, investigating agency and accused no.3. The learned Magistrate is also at liberty to hear accused nos.1 and 2. (iv) The application shall be decided purely on merits without being influenced by the observations made by this Court in the present order. (iii) The learned Magistrate shall decide the application after hearing the application, investigating agency and accused no.3. The learned Magistrate is also at liberty to hear accused nos.1 and 2. (iv) The application shall be decided purely on merits without being influenced by the observations made by this Court in the present order. (v) Application stands disposed of.