Section 523 of the CrPC applies to cases where property is seized by the police during investigation without any inquiry or trial by the Magistrate, and the Magistrate is required to issue a proclamation specifying the property and requiring all claimants to appear before him and establish their claims within six months of the date of such proclamation.

( 1 ) THIS Rule was Issued at the instance of six persons who were arrested by the police along with another person when they were paid to have been driving bullock carts containing paddy across the border of West Bengal and Bihar. The Police arrested them and started seven cases under Section 7 (2) (8) of Act 24 of 1946. During the police investigation, an order having been obtained from a Magistrate, the custody of the cart and the bullocks were obtained by the six petitioners, We are not concerned with the case the seventh person. He was sent up by the police, and after evidence had been taken, he pleaded guilty and was sentenced.

( 2 ) THE case against the six petitioners before me was not proceeded against by the police who submitted final report on the grounds that their identity as the actual offenders had not been established. What is said to have happened is that after the police seized the property the miscreants had run away. The evidence that they were actually in the carts was considered insufficient, and so no report for taking action against them was made by the police to the Magistrate, i. e. , no charge sheet was submitted. After their discharge from police custody these six petitioners, four of whom are minors and two are adults, submitted petitions to the Magistrate that they were owners of the paddy, and the paddy and the carts and the bullocks seized in the six cases should be returned to them. The learned Magistrate considered that Section 517 did not apply to the case and that the proper section to apply would be Section 523, Criminal P. C. He purported to pass an order u/s. 523 of the Code. On an appeal to the Judge, the learned Judge held that the order was passed by the Magistrate really under Section 517 of the Code and an appeal would ordinarily lie, but as the Magistrate purported to pass an order under Section 523 there was no appeal to him. He, therefore, rejected the appeal.

( 3 ) MR. Dutt appearing on behalf of the petitioners has agitated the question whether the proper section was applied by the Magistrate, and also what would be broadly the distinction among Sections 516a, 517 and 523. Criminal P. C. A perusal of the sections themselves as also the numerous decisions thereon would go to show first that Sections 516a and 517 deal with cases which have actually come up before the Criminal Court. They deal with an inquiry or a trial in a criminal Court. Section 516a enables a Magistrate to provide for the 'interim' custody of goods pending the conclusion of the inquiry or trial before the Court. Section 517 provides for the disposal of property after inquiry or trial is over. In connection with orders under Section 516a there is necessarily no appeal because the order is not a final order and is subject to revision when the case is actually disposed of by the Criminal Court. Such fresh consideration of the matter will be under Section 517 of the Code. Therefore only an order under Section 517 is made appealable. Where there has been no inquiry or trial in a Criminal Court, the proper section to apply will be Section 523, which deals with first of all, properties found on a person arrested without warrant by the police, secondly, suspected stolen properties, and thirdly, when properties are found under such circumstances as create a suspicion of commission of an offence.

( 4 ) IN the present case, the seizure of the property was under such circumstances as created a suspicion of the commission of an offence under Act 24 of 1948. The offence mentioned in Section 523 may be under any Act. Offence has been defined in Section 4 (0) as meaning an act or omission made punishable by any law for the time being in force. Therefore, whatever happens in connection with seizure of property by the police during investigation without any inquiry or trial by the Magistrate, the section to apply is Section 523 if there is suspicion of commission of an offence of whatever character it may be. The