The Magistrate's jurisdiction under Section 457, Cr.P.C., is limited to two alternatives: either to deliver the seized property to the person entitled to possession thereof, or to make such disposal, as he thinks proper, of the seized property, in which case he has a discretion as to the manner of disposal.

JUDGEMENT

1. This is a revision petition to set aside the order dated 23-11-1976 passed by the S.D.J.M., Cuttack in a proceeding under S.457, Cr.P.C., registered as Misc. Case No.504 of 1976.

2. In course of investigation in connection with Manglabag P.S. Case No.483 of 1976, the I.O. seized certain movable properties from the de facto possession of the opposite party and left the same in his zima. Before any final form was submitted in the aforesaid case, the opposite party filed an application under S.457, Cr.P.C. before the S.D.J.M. praying for an order directing the police not to remove those seized properties from his custody until the submission of the final form. This application of the opposite party was resisted by the petitioner claiming those properties to be his. His story is that those properties were the subject-matter of a 145 proceeding (Criminal Misc. Case No.141 of 1975) in which the petitioner, the opposite party and one G.N. Mohanty were parties. Those properties were also the subject-matter of Title Suit No.38 of 1975 which had been filed by the petitioner in which Shri G.N. Mohanty was appointed receiver on furnishing security. The receiver matter was carried to this Court in M.A.133 of 1975 which was disposed of on compromise. The terms of compromise recited that the petitioner will take over charge of the restaurant with all movables contained therein and that the building with all the movables was handed over to the petitioner. The opposite party was merely a landlord in respect of the building, entitled to rent from the petitioner and had no vestige of title to the movable properties which had been seized by the police in the aforesaid Manglabag P.S. Case No.483 of 1976.

3. The S.D.J.M. however, passed the following direction in his impugned order:-

"......The investigation is still in progress and not completed in Manglabag P.S. Case No.483 of 1976. It is yet to be determined as to who is entitled to such property. But prima facie when the properties were found in possession of S.C. Mohapatra and the size and quantity of the same being huge and not easily transportable, was left in zima of S.C. Mohapatra. Hence at present there is nothing to disturb the status quo until final determination of the ownership in the P.S. case and further the investigation is not complete and, therefore, the present statua quo is required to be maintained at least till the final form is submitted in Manglabag P.S. Case No.483 of 1976. The applicant S.C. Mohapatra is directed not to dispose of or transfer in any way or any part of the seized property or to change or alter in any form all the properties left in his zima.., ......"

4. The petitioner challenges the jurisdiction of the Magistrate to pass the impugned order as also its legality and propriety. He contends that the Magistrate can only pass orders under this section in respect of properties which have been seized in course of investigation of an offence and such seizure has been reported by the police as required by any provision of the Code, and in the enquiry or trial following investigation, the seized properties are not produced. Thus, where no charge-sheet has been submitted and the matter is still under investigation, the property seized by the police cannot be the subject-matter of Magistrate's order under this section. His next contention is that under S.457(2), Criminal P.C. where a person entitled to possession is known to the Magistrate, he is to direct delivery of such seized property to him, and if such person is not known, the Magistrate may make temporary arrangement for custody of such property and then 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. As, in the instant case, the petitioner is entitled to such property under the compromise decree passed in M.A.133 of 1975