Bhimaji Narayanrao Lokur, J. - (1.) During the investigation of a case u/S. 406 of the IPC against Jugraj Singh, the police seized u/S. 165 of the CrPC the subject -matter of the offence, viz. a printing press, and handed it over to the supurdgi of one Munik Lal. It appears that Jugraj Singh then moved the Judicial Officer, Kanpur, for appointment of some other supurdar and the Judicial Officer obtained recommendations from the police of suitable persons and on the 11th June, 1969 appointed Satrughan Lal as supurdar in place of Munik Lal. It, however, transpired that the address of Satrughan Lal given by the police was not correct and the order of his appointment could not, therefore, be carried out. Jugraj Singh then made an application to the Judicial Officer giving the correct address of Satrughan Lal, but the learned Judicial Officer made a fresh order on the 14th June, 1969, appointing Vishwanath, another person on the panel submitted by the police, to be the supurdar. The charge sheet in the case was filed in court on the 7th July, 1969, and thus no enquiry or trial was pending before the Judicial Officer on the day of appointment of Vishwanath as supurdar. Laxmi Narayan the applicant in this case, unsuccessfully challenged the legality of the appointment of Vishwanath in a revision filed by him in the Court of the Addl. Distt. Magistrate (Judicial) and has raised the same question in this revision application. It has been contended by the learned counsel for Laxmi Narain that the Judicial Officer had no jurisdiction to make an order of disposal of the property seized by the police u/S. 165 of the CrPC in the course of investigation. The learned counsel for the State, on the other hand, sought to support the order as having been lawfully made u/S. 523(1) of the CrPC. S. 523(1) reads thus: 523(1) The seizure by any police officer of property taken u/S. 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. The Sec. applies only to the seizure of property by a police officer u/S. 51 of the CrPC or under other circumstances mentioned in that section. These other circumstances are identical with those set out in S. 550 of the code and though S. 550 is not expressly mentioned in S. 523(1) it is legitimate to interpret S. 523(1) as applying to seizure made u/S. 51 and S. 550 only. As the seizure in the present case is made u/S. 165, the impugned order of the learned Judicial Officer cannot be attributed to the powers conferred on him by S. 523(1) of the code. I am fortified in the view I have taken by the decisions of three Single Judges of this High Court. In Purshottam Das v/s. State ( : AIR 1952 Alld. 410), M.C. Desai, J. (as he then was) expressed the view that though S. 523 does not specifically refer to S. 550, it refers to those circumstances of seizure which are mentioned in S. 550 and further that where the property is seized u/S. 165 and not u/S. 550, its disposal is not governed by S. 523. His Lordship was also of the opinion that there was no other provision in the Code under which the order could have been passed by the Magistrate and hence the order was not passed under the Code and was an administrative or executive order, and further that it was for the police who had seized the property u/S. 165 to dispose of it on their own responsibility.
(2.) In Rampal v/s. State ( : 1956 AWR 556), D.N. Roy, J. independently and without referring to the decision in the case of Purshottam Das, came to the same conclusion.
(3.) The tenor of observations of D.P. Uniyal, J. in Sita Ram v/s. Bhagat Singh (1966 AWR 157) and in B.B. Jaiswal v/s. Safdar Ali (1966 AWR 801) is also to the same effect, even though the two earlier decisions were not cited before him. A contrary view has been expressed by some other High Courts, who have indicated, expressly or by implications, that S. 523 is, in substance, a residuary provision and a Magistrate can exercise his powers of disposal thereunder in situations not covered by his powers under provisions of the Code. Reference may be made to Sk. Muktear v/s. State ( : AIR 1954 Cal. 350), Mahomed Ali v/s. State ( : AIR 1957 AP 146), Ganeshi Lal Ranchhod Das v/s. Satya Narayan Tewari ( : AIR 1958 MP 39), Tara Chand v/s. State (53 CrLJ 476), Alikunju v/s. Alikunju ( : AIR 1960 Kerala 343) and Ajoy Raj Singh v/s. Raj Bahadur Singh ( : 69 CWN 663). In some of these cases the decision of this High Court in the case of Purshottam Dass was noted but was dissented from.;