Sharma, J. - (1.) THIS is a revision application against the order of the District Magistrate, Jaipur, directing that the Sub-Divisional Magistrate, Kishangarh should hand over the bus No. RJL 711 to Rehwat Singh, an employee of Sultan Singh, on his executing a bond to the extent of Rs. 5,000/- as required under clause 4 of sec. 517 of the Code of Criminal Procedure.
(2.) THE facts giving rise to it are as follows: - One Mool Chand was prosecuted under sec. 379 of the Indian Penal Code in the court of the Extra Magistrate, Kishangarh for the theft of the said bus. He was however, discharged on the 19th November, 1951. As regards the disposal of the bus in question, the learned Magistrate referred the case for necessary orders under sec. 518 to the Sub Divisional Magistrate, Kishangarh. THE Sub Divisional Magistrate ordered an issue of notice to Sultan Singh and Mst. Bhanwari through Hanuman Prasad. THE case remained pending in the court of the Sub Divisional Magistrate for over two months. Meanwhile Sultan Singh made two applications before the District Magistrate, Jaipur, one, under sec. 528 of the Code of Criminal Procedure for transfer of the case to the court of Sub Divisional Magistrate, Kishangarh, and the other under sec. 520 of the Code of Criminal Procedure. THE District Magistrate, without issuing notice of either of the two applications to Mool Chand, Mst. Bhanwari or Hanuman Prasad, disposed of the applications purported to be under sec. 520, and made an order above referred to. He did not make any order for the transfer of the case. Hanuman Prasad has come in revision to this Court. I have heard the learned counsel for Hanuman Prasad as well as for Sultan Singh. The procedure adopted by the District Magistrate in the present case seems to be somewhat hasty. Two applications were presented in the court; one for the transfer of the case and the other for an order under sec. 520. In both the applications Mool Chand, the discharged accused, was made a party. The learned District Magistrate did not send any notice to him of any of the two applications. He jumped to the conclusion that because there was no dispute about the possession of the bus in question, it should be returned to Sultan Singh from the possession of whose servant Rehwat Singh the theft was committed. He did not care to see that even before the case was finally decided, Hanuman Prasad had made an application on behalf of Mst. Bhanwari that the bus belonged to her and had been given by her to the repairers from whose place it was seized by the police. The application showed that the claim was laid to the possession of the property by Hanuman Prasad on behalf of Mst. Bhanwari. It was probably on account of this dispute that the learned Extra Magistrate did not make any order himself about the delivery of the bus in question and directed the bus, under sec. 518 to be delivered to Sub Divisional Magistrate and referred the case to him for disposal. The learned District Magistrate says that the Extra Magistrate ought to have himself made an order under sec. 517 and he was not justified in referring the case to the Sub Divisional Magistrate. I am afraid, in this opinion, the learned District Magistrate is wrong. Under sec. 517 of the Code of Criminal Procedure the court before whom an inquiry or trial is held has certainly power to make an order of disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed etc. , but the said section does not make it incumbent upon such criminal court to make an order of disposal. It gives it a discretion to pass such orders. Sec. 518 clearly says that in lieu of its passing an order under sec. 517, the court of inquiry or trial may direct the property to be delivered to the District Magistrate, or to Sub Divisional Magistrate who shall, in such cases, deal with it as if it had been seized by the police and the seizure had been reported to him in the manner mentioned in the Code. The learned Extra Magistrate was therefore, perfectly authorised to refer the case for orders to the Sub Divisional Magistrate under sec. 518 of the Criminal Procedure Code. The Sub Divisional Magistrate had issued notice to Sultan Singh as well as to Mst. Bhanwari and was proceeding with the enquiry when the learned District Magistrate was moved for transfer as well as in revision by Sultan Singh. Of course the District Magistrate, if he thought that the case should be transferred from the court of the Sub Divisional Magistrate, was perfectly authorised to transfer it to his own court. But he made no order of transfer. Instead he made an order for the disposal of the property himself. I do not think that without transferring the case to his court the learned District Magistrate was justified in taking the case out of the hands of the Sub Divisional Magistrate and making orders himself for the disposal of the property. The learned District Magistrate committed another mistake in that, he did not give notice to any of the parties claiming to be entitled to the possession of the bus. It is this ommission of his which to my mind has led to the wrong order which he has passed. The learned Magistrate has referred to certain rulings which to my mind do not apply to the facts of the present case. This mistake is due to his not hearing the parties who were entitled to hearing. The order of the learned District Magistrate cannot therefore, be maintained. The application is allowed. The order of the learned District Magistrate, Jaipur, dated the 10th March, 1952 is set aside and the case is sent back to the Sub-Divisional Magistrate, Kishangarh, for decision in accordance with law. The Sub Divisional Magistrate should however, see that the case is expedited as early as possible. .;