In an enquiry into the custody of property under Section 457, Cr. P. C., the Magistrate should allow the parties to produce evidence that is relevant to the issue of possession. However, the procedure is summary in nature, and the niceties of a trial should not be invoked.

It appears that dispute has arisen concerning the cus tody of the truck bearing registration No. C. P. A. 3079 and during investi gation one Kuldeep Singh was admittedly its erstwhile owner. The dispute presently centers round the point as to whether the said erstwhile owner had transferred the vehicle to the applicant Surya Kumar Misra or the opposite-party Reoti Raman Misra. These two parties appear to be related to each other and there is a dispute concerning ownership right of the truck also. It appears that the truck was seized by the police in pursuance of a report which has been lodged by Reoti Raman Misra and the seizure relegated the parties to the court of Magistrate for its real custody. In the circumstances an application under Section 457, Cr. P. C. was moved by the applicant as well as the opposite party No. I.

2. During the proceedings under Section 457, Cr. P. C. an application was moved by the applicant S. K. Misra with two prayers. Firstly, the erstwhile owner of the truck Kuldeep Singh should be examined. Secondly, the applicant should be permitted to cross-examine Reoti Raman Misra. By the impugned order dated 29-8-1991 the Magistrate has rejected both the prayers of the applicant. Hence this revision.

3. Sri Wajahat Hussain Khan, learned counsel for the applicant has relied upon the provisions contained in Section 457, Cr. P. C. and Section 296, Cr. P. C. and has said that since enquiry is going on the Magistrate would be duty bound to follow the law enunciated in those two sections and if interest of justice required he ought to have allowed the two prayers of the applicant contained in the application.

4. Sri R. C. Srivastava, learned counsel for the opposite-party No. 2, Reoti Raman Misra has, however, raised a preliminary objection to the effect that revision is not maintainable as the order was interlocutory order. The second argument of Sri Srivastava was that on merits two prayers could not have been allowed and, therefore, the impugned order does not call for any interference.

5. Km. Nihad Moonis learned A. G. A. for the State has, however, said that the impugned order does not suffer from any infirmity and it should be upheld in toto.

6. A close look at the controversy as noted above makes it desirable that the Magistrate should examine the evidence of Kuldeep Singh, the erst while owner in case be is produced by the applicant Surya Kumar Misra or his affidavit is filed before him. This is all the more necessary for the reason that both the applicant and the opposite party No. 2 are closely related and some useful information may stand revealed through his testimony. The Magistrate is, however, right in his assessment that while he is not going to determine the question of ownership finally as that is a subject-matter for civil courts, yet he appears to have faltered in ignoring the prayer of the applicant in so far as recording of evidence of Kuldeep Singh or filing his affidavit is concerned. Therefore, this part of the order of the Magistrate requires interference.

7. So far as second part of the order is concerned, it may be stated here that no case has been made out for cross-examining the opposite-party Reoti Raman Misra for the simple reason that the procedure of enquiring entilement of possession in Section 157, Cr. P. C. appears to be summary in nature and niceties of a trial can and should not be invoked at that stage. A distinction which rightly exists between such summary enquiry and regular trial has been rightly drawn by the Magistrate in his empugned order only in so far as the prayer for cross-examining Reoti Raman Misra is concerned. That part of the order has, therefore, to be upheld.

8. Now coming to the preliminary objection raised by Sri R. C. Srivastava, suffice it to say that the impropriety of an order which goes to the root of the matter even if not open to revision under Section

401, Cr. P. C. can certainly be examined under Section 482, Cr. P. C. with a vi