Raghubar Dayal, J.

[1] A child about 2 1/2 months old was found abandoned in the compound of the seed stores at Basti on the 19-5-1953. Shyama Charan getting information about the presence of the child there from one Shrimati Dhanpatia took charge of the child and took it to the police station where he reported the matter. The police then made over the child to Shyama Charan's custody.

[2] On 20-5-1953, Jagannath applied to the Magistrate praying that the child be given to his custody, he having no child of his own. After getting a report from the police, the Magistrate ordered on 1-6-1953, that the child be given to Jagannath and the child was actually made over to Jagannath on 9-6-1953.

[3] Thereafter Shyama Charan applied to the City Magistrate praying for the recall of the order expressing his failure to understand the law under which the order for the delivery of the child to Jagannath was passed and also the fact that a minor's custody is governed by the provisions of the Guardians and Wards Act.

On this application the Magistrate ordered that as the child was given to the applicant i.e., Shyama Charan by the police for a temporary period and in view of his order dated 1-6-1953, Shyama Charan had no claim. He accordingly rejected the application.

[4] Shyama Charan then filed a revision before the Sessions Judge of Basti on 10-6-1953. The learned Sessions Judge has made this reference to this Court recommending that the order of the Magistrate for the delivery of the child to Jagannath be set aside and the child be ordered to be restored to the custody of Shayama Charan.

[5] The City Magistrate in his explanation to the Sessions Judge stated that he had passed the order complained of in his executive capacity and not as a Court. The learned Sessions Judge was of the opinion that the order of the Magistrate was passed under Section 523, Criminal P. C.

I do not agree with the view of the learned Sessions Judge. Section 523, Criminal P. C. deals with property seized by a police under Section 51, Criminal P. C., or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence. The property contemplated by this section seems to consist of material objects and not human being. It is very fairly conceded for the applicant Shyama Charan, that nobody would refer to a human being as property.

It is, however, contended for him that some sort of control is exercised over certain kinds of human beings, e. g., lunatics or children who are unable to take care of themselves. To have the power of control over another is not equivalent to possessing a right of ownership over others and to treat the other persons less favourably situated as their property. I have not been able to lay hands on the case quoted in Chitaley's Criminal Procedure Code under Section 517. The reference is -- 'In re Howka Ramalakshmi, 1 Weir 348 (A)' The reference says:

"But children are not property and the Court cannot, under this section, pass orders regarding the custody of children."

It is, therefore, clear that the order passed by the Magistrate is not an order passed in the exercise of his powers under Section 523, Criminal P. C.

It is contended for the applicant that the order though not strictly coming under Section 523, Criminal P. C., purports to be an order under that section. There is nothing in the various orders of the Magistrate to indicate that he purported to exercise his powers under Section 523, Criminal P. C.

It was also contended that an executive order of a Magistrate would be only such an order which is justified under any other law and as there is no law which authorises a Magistrate to pass an order like the one complained of, the order could not be an executive order and it being an order passed by a Magistrate in his capacity as a Magistrate it must be deemed to be an order passed by a criminal Court and, therefore, subject to the revisional powers of this Court.

It is true th