An order passed by a Magistrate under section 457 of the Code of Criminal Procedure without hearing the informant or conducting an enquiry is revisable.

N.N. Sharma, J.

1. This revision is directed against the order dated 6-6-1985 passed by Sri J. S. P. Singh, learned IVth Additional Sessions Judge of Mathura, who reversed the order of Sri S. A. Samdhani, Judicial Magistrate II, Mathura, dated 22-10-1984 recorded under section 451 of the Code of Criminal Procedure.

2. It appears that opposite party no. 2 Mohan Lal lodged FIR at Police Station Nau heel on 12-11-1983 at 3.10 P. M. in the night in between 31st October and 1st November, 1983, that his Buggi (cart) and he buffalo were stolen.

One Ranvir was nominated in that report. It was on 24-8-1984 that the Buggi and he buffalo in dispute were recovered from the possession of Amar Singh revisionist and given in custody of Mohan Lal.

3. Amar Singh revisionist applied on 16-10-'984 for release of the said property. Learned Magistrate ordered the release of the property in favour of revisionist on 22-10-1984. It appears from the perusal of the order that at that time Mohan Lal was not heard by learned Magistrate, who was dissatisfied with the conduct of the police.

4. Aggrieved by that order Mohan Lal preferred criminal revision no. 44 of 1985, which was allowed by the impugned order on 6-6-1985.

It appears that on 14-12-1984 a charge sheet had also been submitted by the Police against the revisionist under sections 379/4.1 of Indian Penal Code.

5. Aggrieved by this decision, this revision was filed in this Court.

6. I have heard learned advocates for parties. On behalf of revisionist Sri K. C. Saxena, learned advocate for revisionist argued that the order drawn by the learned Magistrate was an interlocutory order and was not reusable specially at the instance of the complainant when it was a Police case. In this connection reliance was placed upon Kalpanath Singh v. Sheo Nath ai, 19/9 ACrR 311. It appears that in that case an interlocutory order was made under section 451 of the Code of Criminal Procedure, which was held as unrevisable. Nathu Lal v. State, 1976 CrLJ 358 relied upon by learned advocate for revisionist, was about an order made by Magistrate under section 451 of the Code of Criminal Procedure, refusing to release the property seized under section 13 of the Public Gambling Act, 1867. Such an order was held as interlocutory and not revisable.

The next contention was that there was nothing in sections 451, 452 and 457 of the Code of Criminal Procedure, which may prevent the property being given in the custody of the accused during pendency of the case or even pending the investigation as was pointed out in Summary of Cases, 1980, ACC page 11, when the Magistrate found that the Buggi was recovered from the possession of accused, who also filed photostat copy from an authorised dealer about the sale of the same to the accused prior to the occurrence. Such order of the Magistrate was unassailable.

7. It was also argued that a finding of fact recorded by learned Magistrate in exercise of his discretionary powers was not to be lightly disturbed with specially at the instance of a private party as was pointed out in Thakur Ram v. State of Bihar, AIR 1968 SC 911. It was not a case under sections 451, 452 and 457 of the Code of Criminal Procedure.

8. Next reliance was placed upon Ram Lal Hazarimal v. Hiralal Ramlal, AIR 1953 Madhya Bharat 241, which observed that after property is seized by the Police, orders for its final disposal can only be passed by the Court and the Police are expected to hold the property subject to the orders of the Magistrate. Therefore, if the property is with the Police the Magistrate alone has got jurisdiction to pass orders,

I have carefully considered all those contentions put forward by learned advocate for revisionist. A mere look at sections 451, 452 and 457 of the Code of Criminal Procedure, 1974, shall go to disclose that order for custody can be made by a Court during enquiry or trial under section 451 of the Code of Criminal Procedure. Section 452 deals with the order for disposal of