( 1 ) THIS Rule is directed against an order passed by the Additional Chief Presidency Magistrate, Calcutta making over a lorry seized by the police to the accused opposite party No. I on a bond.

( 2 ) THE petitioner filed a petition of complaint before the Additional Chief Presidency Magistrate, Calcutta making certain allegations of cognizable offences against the opposite parties in respect of lorry No. WGA 2079. The Additional Chief Presidency Magistrate without himself taking cognizance of the alleged offences directed the police to make investigation under Section 156 (3) of the Code of Criminal Procedure. The police thereupon treated the said petition of complaint as the First Information Report and started investigation into the alleged offences. During investigation the police arrested opposite party No. I and seized lorry No. WBK 1425 from his possession. The next day, the police produced opposite party No. 1 before the Additional Chief Presidency Magistrate who granted him bail. The police simultaneously informed the said Magistrate about the seizure of the lorry and prayed for custody of the same which was directed to be kept with the police. Subsequently on February 12, 1965 opposite party No. I filed an application before the Additional Chief Presidency Magistrate for making over the lorry seized from Trim to him on bond. The Additional Chief Presidency Magistrate obtained a report from the police and rejected the application at that stage. Thereafter on February 22, 1965 opposite party No. I again applied for making over the lorry to him but this time again on perusal of a further report from the police the prayer was refused at that stage. Then again in March, 1965 opposite party No. I filed a further application for making over the lorry to him and this time after perusal of a further police report the Additional Chief Presidency Magistrate passed an order on March 22, 1965 directing that the lorry should be made over to the opposite party No. I on his executing a bond of Rs. 5,000 on condition to produce it on call and on furnishing a surety of the like amount. Subsequently the petitioner filed an application for making over the lorry to him, but the Additional Chief Presidency Magistrate rejected that application on March 24, 1965.

( 3 ) MR. Dutt, who appears for the petitioner, first submits that the Additional Chief Presidency Magistrate had no competence to pass the order making over the lorry seized by the police during investigation, to opposite party No. I. The learned Magistrate in his explanation has said that he passed the order making over the lorry under Section 523 of the Code of Criminal Procedure. Mr. Dutt contends that when the police makes a seizure in course of investigation under Section 165 of the Code the Magistrate has no competence to pass an order in respect of such seizure under Section 523 (1) of the Code. He argues that the Magistrate can act under Section 523 (1) of the Code only when the seizure is made either under S. 51 or under Section 550 of the Code. This argument cannot be sustained. Section 516-A of the Code empowers the Magistrate to deal with seized property during any inquiry or trial. Section 517 of the Code empowers the Magistrate to deal with the seized property after an enquiry or trial is concluded. Section 523 of the Code empowers the Magistrate to deal with the seized property in all other cases. Section 523 (1) specifically mentions Section 51 of the Code, but does not specifically refer to Section 550 or the Code. Mr. Dutt submits that the words used in Section 523 (1) viz. "alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence" are the same as used in Section 550 of the Code. But if by these words the Legislature wanted to refer to the seizure under Section 550 of the Code only, the Legislature would have specifically referred to Section 550 as it has specifically referred to Section 51.

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