The Magistrate has the power to pass orders regarding the disposal of seized property during the investigation of a case under section 459 of the Code of Criminal Procedure, which allows the Magistrate to sell perishable property or property with a value less than ten rupees, or property whose owner is unknown or absent.

T. U. Mehta, J.—This revision application is filed against the Order passed by the learned Special Judge, District Sirmur at Nahan in Cr. M. P. No. 18-N/4 of 1977 on 7-12-1977 with regard to the disposal of the case property under section 457, Cr. P. C The case of the prosecution is that the present petitioner, who is accused of the offences under section 379/42/467/ 468/ 120 B, I. P. C, read with section 5 (2) of the Prevention of Corruption Act, has felled some trees belonging to the Government and, therefore, certain pieces of timber which the petitioner has obtained from these felled trees are stolen property. It is found that the police, during the investigation, has seized this property, and thereafter on 9-11-1977, the Deputy Superintendent of Police, C.

1. D. (Crime), Himachal Pradesh, Simla made an application to the learned Special Judge for auction of this property as contemplated by section 457 of the Code of Criminal Procedure. The respondent in reply to this petition submitted that he had filed a civil suit in the High Court in respect of this timber, which is treated by the prosecution as case property, and that he should be given an opportunity to establish his claim to this property. The learned Special Judge has, after hearing the parties, accepted the prayer of the police for the sale of the case property by auction through the Forest Department. He has passed this order evidently under section 457 of the Code of Criminal Procedure. Being aggrieved by this order the petitioner has preferred this revision in which he has raised two points, namely, (1) the learned Special Judge had no jurisdiction to take any action in the matter under section 457 of the Code of Criminal Procedure as it could not be said, within the meaning of section 457 of the Code, that the property in question was not produced "during the course of enquiry or trial" and (2) at any rate, the learned Special Judge should have given the petitioner an opportunity to prove that he is entitled to the possession of this property before the order in question was passed by him.

2. It is the first contention raised by the petitioner which is more important because it touches the question of jurisdiction of the learned Special Judge to act under section 457 of the Code of Criminal Procedure. On this point the contention raised on behalf of the petitioner was that section 457 can be invoked only when it is found that the property seized by the police is not produced "during an enquiry or trial". It is pointed out that in this case the stage of enquiry and trial has not yet reached because the police has not submitted any charge sheet and the matter is still pending for investigation before the police. It was, therefore, contended that the learned Special Judge had no jurisdiction to pass an orders under section 457 of the Code.

3. In support of the above contention the learned Advocate of the petitioner put reliance upon the decision given by Allahabad High Court in Nanno Mall and others v. Sher Mahammad Khan, 1976 Cr LJ 1983 and another decision given by Andhra Pradesh High Court in Bclaji v. State of Andhra Pradesh, 1976 Cr LJ 146 f. In both these cases the provisions of section 457 of the Code have been interpreted and it is held that section 4^7 (1) would apply only when the seized property is not produced before the Court during the course of inquiry or trial and order thereunder can be made only after the trial is concluded. Followings are the relevant observations made by the Allahabad High Court: "A plain reading of section 457 (1), Cr. P. C, 1973 clear y shows that it is applicable only when the property seized is not produced before a criminal court during an inquiry or trial. A Magistrate under this section can make an order regarding the seized property only after the inquiry or trial is concluded and the seized property is in tact not produced in the inquiry or trial. He cannot make on order regarding the sized property under this s