Hon’ble Sudhir Agarwal, J.—Heard learned counsel for the parties.

2. On 1.12.1994 while making a routine checking of vehicles by the police authorities of Police Station Dohrighat, district Mau, a sum of Rs. 1,85,000/- was found in possession of one Nazre Alam, who was travelling by Yamha Motor Cycle No. UP-50 A/1534. On inquiry, he stated that money belonged to his maternal uncle Gurfan son of Hafiz Sultan, who had given to him for delivering the same to Sri Wazir Ahmed, resident of Nai Bazar, Chauri Chaura. The statement of opposite party 1 was found incorrect, on inquiry made by Station Officer, Dohrighat and it was found that Wazir Ahmed was not residing at Chauri Chaura, rather he is residing in Saudi Arabia.

3. Consequently, police authorities wrote a letter to Income Tax Officer, Mau informing seizure of money and three loose papers from the possession of opposite party-1.

4. Thereupon, Income Tax Department proceeded under the provisions of Income Tax Act 1961 (hereinafter referred as Act 1961). Warrant of authorization under Section 132-A (1) of Act 1961 was issued authorizing Assistant Director, Income Tax (Investigation), Gorakhpur, Income-Tax Officer (C.I.B.), Gorakhpur and Income Tax Officer, Mau for requisition of Rs. 1,85,000/- from Station Officer, Dohrighat who had seized money from possession of opposite party 1. In pursuance of warrant of authorization issued by Director, Income Tax (Investigation) Kanpur, the aforesaid money was requisitioned by Income Tax Officer (C.I.B.) Gorakhpur from Station Officer Dohrighat and thereafter, a draft demand was drawn in favour of Commissioner, Income Tax, Allahabad P.D. Account from Punjab National Bank Dohrighat.

5. The opposite party 1 filed application before Additional Chief Judicial Magistrate requesting for release of aforesaid money. It was rejected vide order dated 28.1.1995.

6. Thereafter, opposite party 1 and 2 preferred Criminal appeal before District and Sessions Judge, Mau. Appeal was registered as Criminal Appeal No. 3 of 1995. District and Sessions Judge, Mau allowed appeal, set aside order passed by Additional Chief Judicial Magistrate, Mau dated 28.1.1995 and directed Station Officer, Dohrighat to return money to appellants 1 and 2.

7. Respondents 1 and 2 had not impleaded Income Tax Department either before the Additional Chief Judicial Magistrate when they filed application for release of the money, registered as Case No. 41 of 1995 nor impleaded the said department in Criminal Appeal No. 3 of 1995, which was allowed by Sessions Judge, Mau vide impugned judgement dated 29.7.1995. Only State was impleaded as opposite party and Government Advocate appointed by the State of U.P. to represent State appears to have been heard by the Courts below. Release application was filed under Section 194 of Motor Vehicle Act 1988. Session Court considered the matter observing that accused was taken in custody by police under the Provisions of Motor Vehicle Act and when made search of the person of accused under Section 51 Cr.P.C., recovered Rs. 1,85,000/-. It is also observed that a warrant under Section 132-A of Act, 1961 requisitioning the money seized by police, it was incumbent upon police to first seek permission of Judicial Magistrate under Section 457 Cr.P.C. to transfer money otherwise the police was not competent to do it. With regard to proceeding of Income Tax department no document was produced by the police authorities before Court below.

8. Learned counsel appearing for revisionist contended that Section 457 Cr.P.C. has wrongly being relied by Session Judge for reason that Act 1961 is a special Act and shall override otherwise provisions of Cr.P.C. Once requisition has been made by Income Tax authority under Section 132A, Magistrate is not entitled to go on for an inquiry into nature of assets and ownership etc.. In support he placed reliance on a decision of this Court in Union of India v. Judicial Magistrate (Eastern Railway), Mughal Sarai and