A Magistrate has jurisdiction to pass an order for the custody of property pending trial under Section 451 of the Cr. P. C., not only in respect of property regarding which an offence appears to have been committed or which appears to have been used for the commission of the offence, but also in respect of property produced before the Court.

SAPRE, J.:- By this petition under Art.226 of the Constitution of India, the petitioner seeks to challenge the order dated 2nd Nov. 1977 passed by the Metropolitan Magistrate, 26th Court, Borivli, Bombay,, under S.451 of the Cr. P. C. 1973 in Criminal Case No. 655/W of 1977.

2. Criminal Case No. 655/W of 1977 arises out of a complaint filed by respondent No. 2 Roshanlal Anand against four persons, including the petitioner Om Rajnarain Shivpuri who is shown as accused No. 3 in the said complaint. That is a complaint under Section 420 read with S.34 of the I.P.C. The allegations in the complaint are these. On 4th Jan., 1977 accused No. 2 Rajesh Saksena entered into an agreement of sale with the complainant Roshanlal Anand and sold to him his car Fiat Premier President bearing registration No. DHC-6239 on receiving payment of Rs. 20,500/-. Accused No.2 Rajesh Saksena handed over to the complainant the certificate of registration along with sale letter and receipt, but he agreed to give delivery of the car to the complainant, after transferring ownership by applying to the R. T. O., Delhi. However, accused No. 2 dishonestly handed over possession of the car to accused No. 3, the petitioner herein, purporting to have sold the car to him on 15th Dec., 1976 for Rs: 25,000/-. He was also trying to transfer the car in the name of accused No. 3 after bringing into existence forged documents.

3. The complainant-respondent No. 2 filed an application under S.94 of the Cr. P. C. for issue of a search warrant against the petitioner-accused No.3 for the seizure of the car in question. The learned Magistrate issued the search warrant and, in execution thereof, the police at Bandra seized the said car on 1st Oct. 1977 under a panchnama from accused No. 3 at Bombay. The car was produced before the learned Magistrate and it was with Bandra police for safe custody.

4. After the seizure of the car, the complainant, accused No. 2 and accused No. 3 each filed an application for getting custody of the car under Section 451 of the Cr. P. C. After going through the material placed before him and hearing the parties, the learned Magistrate came to the conclusion that the complainant was best entitled to get the custody of the seized car as against accused Nos. 2 and 3. He, prima facie, held the sale of the car by accused No. 2 to the complainant on 4th Jan. 1977 for Rs. 20,500/- to be the real transaction and held that the sale of 15th Dec. 1976 of the car purported to have been made by accused No. 2 in favour of accused No. 3 for Rs. 25,000/- was a fake sale on the strength of documents subsequently brought into existence. The learned Magistrate accordingly passed an order directing delivery of the car to the complainant Roshanlal Anand for safe custody under S.451 of the Cr. P. C. till the decision of Criminal Case No. 655/W of 1977 or until accused No. 2 or accused No. 3 obtained an order from a competent Civil Court or any other higher Court to get the custody of the car. However, the learned Magistrate directed the complainant to execute a P. R. Bond of Rs. 25,000/-on the usual terms and conditions before the custody of the car was given to him. It is this order that is being challenged in this application.

5. The first submission on behalf of the petitioner is that the search warrant issued by the learned trial Magistrate under Section 94 of the Cr. P. C. was without jurisdiction. Sec. 94 permits a Magistrate to issue a warrant to enter upon any place and to search the same and to take possession of any property found therein, if he has reason to believe, inter alia, that the place is used for the deposit or sale of stolen property. In the instant case the car in question was . not stolen property. It is not the case of the complainant that he was in possession of the car and it was taken away from his possession. On the other hand, his allegation in the complaint is that possession of the car has yet to be delivered to him. As the car was not