1. This is a simple case, but there is a good deal of feeling behind it. It is all about the possession of a bull. The petitioner questions the propriety of an order supposed to have been made in respect of it under Section 517 of the Cr PC. The complainant who is a pleader at Serampur missed a bull. A few days later he got information that the animal had been seized and detained by the accused. Accordingly on 20th February 1937, he lodged a complaint before the police. On the same day the police seized a bull from the yard of one Abdul Gani on the identification of the complainant and several other persons. Abdul Gani stated that the animal had been left there by the accused Yusuf. Yusuf questioned the identification, and undertook to produce another bull within the next five days which, if proved to be the complain, ant's, the complainant was to accept, returning the bull seized to the accused. In case the accused failed to produce such an animal or it was found to belong to any other person, the complainant was to let go the bull seized. Meanwhile for five days this animal was to remain in police custody. “To avoid unpleasantness” as he put it, the complainant accepted this arrangement, all the while protesting his ownership of the bull. Apparently the accused failed to keep to his undertaking. On 6th March the police submitted a final report that it was not possible to come to a definite conclusion regarding ownership. The case was stated to be one of a mistake of law under S. 411, I.P.C and in view of the conflicting claims by both parties, the disposal of the bull was left to the decision of the Court.

2. The complainant filed a petition before the S.D.O, Serampur, praying for return of the animal to him, and asked that in any case it might be kept in Court or polios custody pending decision of the question of ownership by a Civil Courts the accused also filed a petition for restitution of the bull to him. The S.D.O heard lawyers on both sides, and not being able to satisfy himself on the conflicting evidence on both sides, as he put it, that the bull belonged to either party, made an order that pending the decision of a competent Civil Court, it should remain in the custody of the Court. The complainant was directed to bear the costs of upkeep, the other party having refused to do so on the ground of poverty.

3. On the original case the order was: “Enter mistake of law, S. 411, I.P.C” Yusuf appealed to the Sessions Judge, who dismissed the appeal on 17th May 1937, but varied the order by directing that the bull should be kept in the custody of the complainant on his furnishing security to the extent of its price. It is against this order that the present Rule is directed. The complainant, in due course took the bull into his own custody on executing a security bond for Rs. 50. I am informed the animal has been since removed to the pinjrapole at Sodepur where it is being maintained at the complainant's cost. The learned Sessions Judge permitted himself to make certain observations in his order to which strong exception is taken on behalf of the petitioner. This is what he said:

In the present case, if the bull is returned to the accused, there is every likelihood of it beings slaughtered, the accused being a Mahomedan… So I think the proper order would be to keep the boll in the custody of the complainant who is a Hindu.

4. It is unfortunate this communal element should be introduced, but it is refloated in the complainant's petition asking for return of the bull, in which he stated that he had been led to file the complaint as his religious feelings and the religious feelings of the members of his family and of his relations and neighbours—not to speak of the other respectable Hindu residents and the Hindu public at large—were seriously wounded.

5. It was also made to appear before me that the tension of feeling between the parties had not yet subsided. Be that as it may, I have no hesitation in saying that no communal considerations can or ought to weigh with the Court in deciding the present matter in which the simple question is which of two parties, if any, has made out a claim to be entitled to possession of the disputed bull. The order in the case has been treated as one under S. 517, but it is necessary to point out that if made under this section, it would be wholly without jurisdiction. In order that S. 517 may apply, one of the conditions is that there must have been “an inquiry or trial in any Criminal Court” and that such inquiry or trial must have been concluded. The case here did not proceed to a trial, and it did not reach the stage of an inquiry either. As the definition of “inquiry” in Cl. (k) of S. 4(1) shows, it contemplates a proceeding conducted by a Magistrate or a Court. The words in S. 517(1) quoted above also refer specifically to an inquiry in a Criminal Court. Now, what happened in this case was that the police submitted a final report under S. 173: this was a stage prior to the commencement of an inquiry or trial, as sub-s. (4) of this section would show. It was on this report that an inquiry or trial could be started. The police really acted under S. 169, as it did not appear to them that there was sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. No arrest had in fact been made, and all that they did was to submit a report of the case to the Magistrate for orders. It seems to me therefore, that the most important condition precedent for the making of an order under S. 517 was wanting. In this view, the order made by the S.D.O would be wholly incompetent, and so also the appellate order of the Sessions Judge, as S. 520 would not then apply. Obviously the order could not be justified under S. 516-A either, as being an order made pending the conclusion of an inquiry or trial. The case would more properly come under S. 523, which applies where there has been no inquiry or trial, and expressly deals with a case inter alia where property is seized by a police officer as alleged or suspected to have been stolen, that is to say, where, as here, property is seized under S. 550. S. 523 provides that such seizure must be reported forthwith 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.

6. The difference in the language used in the three Ss. 516-A, 517 and 523 may be noticed. S. 516-A speaks of an order “for the proper custody” of the property; S. 517 of an order for its “disposal”; such disposal being “by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise”; and S. 523 of an order 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.

7. Delivery to a person entitled to possession is regarded as a mode of disposal under S. 517, while disposal and delivery are mentioned separately in S. 523. Then, S. 516-A contemplates only an order for proper custody, but custody is not mentioned in terms in S. 517, while S. 523 provides for custody and production where the person entitled to possession cannot be ascertained. It is to be further observed that S. 523 expressly provides for “ascertaining” the person entitled to possession, showing that an inquiry is contemplated where there are conflicting claims.

8. It is quite arguable that in a case under S. 517, an order for delivery may be made only when there is no dispute as to the person claiming to be entitled to possession; if there is a dispute, the property should be disposed of otherwise, provided that a temporary order for delivery to any one of the disputing claimants may be made on taking security under sub-s. (4), but such temporary order can be made only pending an appeal under S. 520. In this view, assuming S. 517 applied, the order of the Sessions Judge could not obviously be justified in so far as it allowed the complainant to retain custody of the bull pending the decision of a competent Civil Court. The order of the S.D.O would be equally obnoxious, as I do not think S. 517 at all contemplates a provisional order for delivery or for custody, except as provided for in sub-s. (4). If by reason of a disputed claim to possession, an order for delivery cannot be made, or the property may not be finally disposed of by destruction or confiscation or otherwise, the Court will not make any order under this section at all, but leave the parties to their remedy in a Civil Court, if any. Meanwhile, it will be quite proper to make an order under S. 523, where the property is property seized in the manner stated in the section. In my opinion, this section will equally apply where there has been and there has not been an inquiry or trial, or where the property has been or has not been produced in Court; in other words, even in a case which comes under S. 517, if on the facts the Court finds itself unable to make an order for the disposal of the property in the manner indicated therein, it will be open to it to deal with the matter under S. 523. I am not unmindful of the conflicting decisions on this point, but the view I have ventured to suggest seems to me to be the best in accord with the whole scheme of Ch. 43 of the Code.

9. An order for custody and production of the property can be made under S. 523 only if the person entitled to possession cannot be ascertained. I agree with Telang, J. in the view expressed by him in 17 Bom 7481 at pages 755-756 that under this section a Magistrate is bound to make an inquiry touching the right to possession. There is divergence of opinion as to whether such inquiry must be a judicial inquiry or the Magistrate can pass the order on police reports and papers without an independent inquiry: see on this 4 Lah 38.2 in this case there is nothing to show whether the S.D.O had any further materials before him besides the police report, and a report of an Assistant Veterinary Surgeon who certified that the bull was six years old, this being nearer the age five years given by the complainant in his petition of complaint than that of three years and four months given by the accused. On these materials he was of opinion that it could not be definitely said that the animal belonged to one party rather than to the other, and in that view, he ordered the animal to be detained till the parties settled their dispute in a Civil Court. I think however, that in that case it was his duty to proceed under sub-s. (2) of S. 523 and then under S. 524. It would be quite open to the parties in the meantime to go to the Civil Court, if they so desired, and in case a Civil Court decree was passed, further proceedings before the Magistrate would then at once cease.

10. In no circumstances, I am convinced, whether the case be one under S. 517 or under S. 523, can an order be made for detention in Court custody or in the custody of one of the parties, conditional on a civil suit being instituted for, this might mean detention for an indefinite period, if no such suit was brought. The complainant who has got the animal would naturally be interested in not bringing a suit, and to force the accused to a suit, although he was admittedly in possession at the time the animal was seized and although the complainant failed to make out his claim, would be manifestly unjust. I must accordingly set aside both the order of the S.D.O and the order of the Sessions Judge, and send the case back to the S.D.O to be dealt with under Sections 523 and 524 of the Cr PC. It would be open to the parties to adduce further evidence before him to establish their respective title to possession, and in dealing with the question of possession, the S.D.O must also keep in view the provisions of Section 110 of the Evidence Act. The complainant must restore the bull to the custody of the Court within three weeks from date. It would be open to either party to file a suit in a Civil Court and obtain an order for interim custody, if so advised, in which case the order of the Civil Court must of course prevail. The Rule is accordingly made absolute in these terms.

A.L/R.K

11. Rule made absolute.