Magistrate can act even before he receives a police report.

This is a petition under section 439, of the Code of Criminal Procedure, (wrongly filed as Cr.M.P.) to revise an order of the Sub-Magistrate I, Kozhikode in C.M.P. No. 38 of 1969. That petition was filed for release of a motor car KLD 8488, which was seized by the Police in the course of investigation of a crime. The petitioner is the registered owner of the car ; and it was seized on the ground that it really belonged to the accused, who purchased it with Government money alleged to have been misappropriated by him. The petition was rejected by the Magistrate stating that the police had not produced the car in Court, and that the question of releasing the car would arise only if and when the car was produced in Court.

It is not disputed that the seizure of the car was reported to the Court as required by section 523, Criminal Procedure Code, but the petition was mainly resisted by the police, stating that it was required for the purpose of investigation, and that the Revenue Divisional Officer, had also passed an order directing the police to produce it before him. The order of the learned Magistrate was attacked before mo as illegal and amounting to refusal to exercise the jurisdiction under section 523, Criminal Procedure Code. The learned State Prosecutor sought to support the order on the ground stated by the Magistrate ; and he also submitted that the above section has no application to the case. According to him, this section applies only at the culmination of an action taken by the Police without the accused being charged for any offence.

The question raised in the case relates to the scope and applicability of section 523, Criminal Procedure Code ; and it is of considerable importance. There is some judicial controversy in the matter ; and it, therefore, requires examination. Chapter XLIII in the Code of Criminal Procedure deals with disposal of property by a Court. Section 516-A Criminal Procedure Code, relates to property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence, and produced before any Criminal Court during any enquiry or trial ; and it empowers the Court to make such order as it thinks fit for the proper custody of the said property pending the conclusion of the enquiry or trial. Section 517, relates to property concerned in any enquiry or trial ; and it empowers the Court to make such orders as it thinks fit for the disposal of the said property. There is no controversy regarding the application of the above provisions. Section 523, reads as follows:

“523, Procedure by police upon seizure of property taken under section 51 or stolen: (i) The seizure by any police officer of property taken under section 51 or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof/or, if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.” On a plain reading of the above provision, it is obvious that it applies not only to property seized by police under section 51, Criminal Procedure Code or on the allegation or under suspicion that it is stolen, but also to property seized on being found under circumstances which create suspicion of the commission of any offence.