- (1.)This revision petition is directed against the order dt.23-1-1973 passed by the II City Magistrate, Mysore, in Crime No.l of 1973, apparently under Section 523 of the Code of Criminal Procedure.
(2.)The relevant facts are that on 26-12-1972, according to the petitioner his bullocks and the cart were stolen and bjq gave a complaint to the police on 2-1-1973. The police seized the bullocks and the cart in question from respondent 1 on 6-1-1973. When the same were produced before the Magistrate, they were allowed to remain in the custody of Patel Javare Gowda. On 5-1-1973, the petitioner-complainant filed Small Caus'e Suit No.25 of 1973, against respondent 1 as defendant, in the Court of the Small Causes at Mysore. He filed an application I.A.No.I for an order of attachment under Or.38 Rule 5 cf the CPC., but did not press it. On 6-1-1973, he filed I.A.No.II for appointment of a Commissioner in order to take possession of the bullocks and the cart, and the Court allowed the application. On 9-1-1973, applications were filed before the Magistrate, by both the parties, praying for handing over possession of the bullocks and the cart to them. Those applications were considered and disposed of by the order in question. The learned Magistrate has ordered that possession of bullocks and the cart should be handed--over to respondent 1 who was the accused in the said crime No. 1 of 1973. Smt. Anasuya, the learned Advocate appearing on behalf of the petitioner, contended that on 23-1-1973 also it was brought to the notice of the Magistrate that a, Commissioner has been appointed by the Court of Small Causes, and that Commissioner was to take possession of the bullocks and the cart, but the Magistrate has not at all taken this aspect of the matter into consideration while passing the impugned order.
(3.)The facts mentioned above, make it abundantly clear that by 9-1-73, the date on which both the parties applied before the Magistrate for possession of the bullocks and the cart, a Commissioner had been appointed by the Court of Small Causes as the order was passed on I.A.No.II on 6-1-1973, and a commission warrant had been issued in favour of Sri C. Bhagavan, an Advocate in Mysore. It was the duty ol the Magistrate to have considered this circumstance also before proceeding to pass an order under S.523 of the CrlPC. By S.523 of the CrlPC., the Magistrates are required to direct possession of properties to be handed over to persons entitled to possession thereof. When the matter was seized by the Civil Court and the Court had appointed a Commissioner to take possession of the properties, that necessarily would be material relevant for consideration while passing an order under Sec.523 of to CrlPC. The learned II City Magistrate has ignored this material and, therefore, it will have to be held that the order in question cannot be sustained.