The Magistrate has jurisdiction to pass an order under Section 523 of the CrPC for the disposal of property seized by the police, even if the property is not produced before the court.

Accused Hiralal Ramlal was prosecuted before the Sub-Divisional Magistrate, Sitamau for a charge under S.409, Penal Code and was acquitted on 25-9-50. During the Police investigation the petitioner who is the father of the accused Hiralal had handed over a sum of Rs.701-2-9 to the Police Officer in charge of the investigation on 5-12-1948. This sum, it appears, immediately after the receipt of the same from the petitioner Ramlal was handed over by the Police to the Municipality Sitamau in which the accused was serving and in respect of which the offence is alleged to have been committed without any specific order of the Court to that effect. On reference to the Panchanama Ex.P/3 with regard to the seizure of this sum it appears that this sum was seized or attached by the Police during the course of investigation.

In various columns in the forms printed for the purpose of use of Sitamau Police it was mentioned that this sum of Rs.701-2-9 was being seized in connection with the criminal breach of trust in respect of the funds of the Municipal Committee by Sub-Inspector Suryamal from the custody of the petitioner Ramlal. After the accused was acquitted the petitioner submitted an application to the Sub-Divisional Magistrate Sita, mau for the refund of this sum seized from his custody by the Police. The application purported to be made under S.517, Criminal P.C. This application was rejected by the Magistrate on the ground that the sum was not produced before the Court during the inquiry or trial and there ore he had no jurisdiction to pass any order in respect of the same. The petitioner there upon submitted an application for revision to the Sessions Judge Mandsaur who has made this reference.

2. The grounds set forth by the learned Judge for setting aside the order of the learned Magistrate are that under S.523, Criminal P.C. the Magistrate had jurisdiction to pass order in respect of the property seized by the Police though not produced before it. Reliance for this purpose is taken on the decision reported in - 'Mahomed Yusuf v. Krishna Mohan', AIR 1938 Cal 17 (A).

3. Before me counsel both for the petitioner as well as for the Municipality appeared. Mr. Pande who appeared for the petitioner suggested that the order for directing the delivery of the property from the Municipality to the petitioner could be passed under S.523, Cr.P.C., by the joint operation of powers under S.523 and the inherent powers of the Court. While it was contended by the counsel for the Municipality that no order can be passed under S.523, Cr.P.C., as the only order contemplated under S.523 is one in respect of the property that is seized by the Police and is in their custody. If the Police rightfully or wrongfully part with the possession of that property in favour of some person the remedy in that case is by having recourse to the Civil Court for the enforcement of the right of the claimant and not by an application made under S.523 or 517, Criminal P.C. No authority has been brought to my notice which covers the case of the description that is before me and therefore I will have to consider the matter on the principles indicated in the various sections of the Criminal Procedure Code in respect of such properties which are seized by the Police.

4. There are two kinds of properties that are dealt with under the Criminal Procedure Code. Firstly those that are seized by the Police and produced before the Court during the inquiry or trial and those which are seized by the Police and not produced during the inquiry or trial. The Police are empowered to seize the properties during the course of investigation as will appear from S.165, Cr.P. Code, and also on reference to S.523, Cr.P. Code. A duty is cast upon the Police to prepare a list of such property and to report the fact of the seizure to a Magistrate. If the property is produced before the Court the Court is empowered to pass orders in respect of it under S.517, Cr.P. Code, for its disposal after