CHHANGANI, J.—This is a reference by the Sessions Judge, Bharatpur, recommending that the order of Munsiff-Magistrate, Bharatpur, dated the 31st Jan., 1963, for recording evidence before passing order as to the disposal of the stolen property consisting of a pair of oxen, be set aside and that the Munsiff Magistrate be directed to return the pair of oxen to the petitioner Mohan Singh.

2. The facts which have given rise to this reference may be briefly stated as follows—The opposite party Samla lodged first information report with the Police Station, Sewar, on 29th of May, 1962, accusing the petitioner Mohansingh of an offence of theft in respect of a pair of oxen. A case against the petitioner for an offence under sec. 380, Indian Penal Code, was registered by the police and investigation was commenced. After the completion of the investigation the police submitted a final report in the case on 1st November, 1962 saying that no offence was committed by the accused. On 3rd November, 1962 the petitioner Mohan Singh submitted an application before the Munsiff-Magistrate praying for the return of the pair of oxen to him on the ground that the pair of oxen was taken from his possession. On the application of the accused a notice was directed to be issued to the complainant to show cause why the property be not returned to the accused-petitioner. It may be stated here that even before the receipt of the negative find police report the complainant had filed a complaint against the accused petitioner accusing him of an offence under sec. 380, Indian Penal Code. The Magistrate had taken cognizance of that report and had ordered a preliminary enquiry under sec. 202 Criminal P.C. Consequently, when the complainant received notice of the petition of the accused-petitioner praying for the return of the pair of oxen, he opposed the delivery of the pair of oxen to the accused. The Magistrate by his order dated the 31st of January, 1963, proceeded to record evidence of the parties before passing any order for the disposal of the pair of oxen.

3. The accused-petitioner went in revision to the court of Sessions Judge, Bharatpur. The Sessions Judge has expressed the opinion that an enquiry was not at all called for in the facts and the circumstances of this case. According to him sub-sec. (1) of sec. 523, Criminal P.C. does not contemplate an enquiry and the Magistrate is competent to order delivery of the property to the person entitled to the possession thereof. Sub-sec. (2) of sec. 523 contemplates an enquiry only when the person entitled to possession is not known. The Sessions Judge appears to have taken the view that since the possession of the pair of the oxen was taken from the petitioner and since the police submitted a negative report, the person entitled to possession cannot be said to be unknown and, consequently, direction ought to have been made for the delivery of the property to the petitioner and that no enquiry was necessary.

4. Mr. Soral for the complainant has opposed the reference. Mr. Rastogi for the accused-petitioner has supported the order of reference. Mr. Sampatraj Singhi appearing for the State has also opposed the reference.

5. The first question calling for determination is whether in the absence of any specific provision Sec. 523, Criminal P.C. can be invoked for disposing of property seized by the police during investigation when after investigation the police submits a final report of the negative character stating that no offence has been committed? On this point there is conflict of judicial opinion. In M/s. Purshottam Das Banarsidas Vs. State through Harshad Rai Natwarlal (1) a learned Single Judge of the Allahabad High Court held that sec. 523 Criminal P.C. can not be attracted to such a case. The reasoning which weighed with the learned Judge in coming to this conclusion was as follows—

"The Code contains no provision for disposal of property seized during the investigation which results in a final report; eviden

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