A. S. NAIDU, J.

( 1 ) - Heard Mr. A. Ch. Swain, learned counsel for the petitioner and Mr. Sanjib Swain learned Additional Standing Counsel, for the State.

( 2 ) THE petition is filed under Section 401 read with Section 482 of the Code of Criminal Procedure, inter alia, challenging the order dated 2-8-2000 passed by the learned Judicial Magistrate. First Class, Nimapara, in G. R. Case No. 371 of 1997, rejecting the petition filed by the petitioner under Section 457 of the Code for release of a generator seized by police in course of investigation of the case.

( 3 ) BEREFT of unnecessary details the facts which give rise to this revision are as follows: It is alleged that on 7-6-1997 some hooligans armed with weapons invaded the farm-house of the petitioner and took away valuable belongings like, jewellery, television. V. C. R video-camera, generator (Enfield make) and many: other articles. The petitioner was also brutally assaulted by the accused persons. On receiving information, police reached the spot, rescued the petitioner who was taken to Konark Police Station and thereafter shifted to the S. C. B. Medical College Hospital for treatment. On the basis of the information, Konark P. S. Case No. 40 of 1997 was registered which corresponds to G. R. Case No. 371 of 1997. However, the police submitted final form recording No clue. On coming, to know about the said fact the petitioner filed a protest petition before the learned Judicial Magistrate, First Class, Nimapara, which was registered as I. C. C. Case No. 182 of 1998. The learned Magistrate after examining eye-witnesses and the complainant took cognizance of the offences punishable under sections 451/427/380/34 of the Indian Penal Code against the accused persons. In course of investigation, the police seized different materials by raiding the house of the accused persons. It further appears from the forwarding letter (copy of which is filed as Annexure-4) that on the night of 19/20-8-1999, the police on the basis of reliable information conducted raid in the house of Tahali Behera alias Panchi of village Tikena and recovered a portable Enfield Generator. In the report it is mentioned that on being questioned the accused confessed his guilt and admitted that he along with his associates committed theft of the generator from the farm house of the petitioner. The seizure list dated 26-8-1999 (copy of which is annexed as Annexure-3) reveals that the police also seized a money receipt revealing sale of the aforesaid generator by one Ananda Shankar Bhramarbar son of Baidya Bhramarbar Ray to the petitioner.

( 4 ) THE petitioner filed a petition under section 457 of the Code of Criminal Procedure before the learned trial court praying to release the generator in his favour. The learned trial court by order dated 2-8-2000 rejected the said petition on the ground, that the petitioner could not produce any paper showing his ownership over the same. The trial court though noted the fact that the money receipt relating to the seized generator was seized on 28-9-1999, but rejected the petition holding as follows: While disposing such a petition, it is the primary duty of the court to see the prima facie ownership of the petitioner and his entitlement to the possession thereof on the article. I think the petitioner failed to prove the same with proper document. Hence the prayer is The said order dated 2-8-2000 is impugned in the present case. Section 457 of the Code of Criminal Procedure reads as follows: 11457 Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may 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 respectin