JUDGMENT
Sinha, J.
1. This is an application for setting aside the order of the Sub-divisional Officer of Buxar, dated the 6th/7th October, 1951, and for restoration of a truck numbered BRA 4720 which was seized by the police of Buxar under orders of the Sub-divisional Officer and made over to the opposite party in the circumstances to be presently mentioned.
2. The petitioner Indrasan Rai of village Arjun-pore, police station Buxar, claims to be the owner of the truck mentioned above which, according to him he had purchased from the Liberty and Company, Patna, sometime in the month of March 1951. It is alleged that Enayat and Ayub, son of Enayat, the opposite party, were the two ‘karpar-daas’ of the petitioner looking after the affairs of the petitioner at home including the construction of a pucca house. The truck was employed in carrying bricks, sand, etc., to the petitioner’s house and was always in his possession. The petitioner discovered on the 15th September 1951, that the opposite party had practised fraud upon the petitioner and had without his knowledge dishonestly got the truck registered in Ayub’s name (one of the opposite party) and that the opposite party had a sinister design to misappropriate the truck. After the petitioner came to know of the dishonest design of the opposite party, the opposite party, to advance their fraudulent purpose, lodged a saneha at the Buxar police station on the 17th September 1951, to the effect that there was a quarrel between Indrasan Rai on the one hand and one Abdul Wahid Khan, the driver of the truck, on the other,
for arrears of hire and thereupon the petitioner grew angry and was ready to create trouble and that, out of fear, Wahid Khan, left the truck with some papers concerning the truck near the house of Indrasan Rai. In the saneha the opposite party claimed to be the ower of the truck. On the 19th September, 1951, Ayub Khan filed a petition before the Sub-divisional Officer under Section 144, Criminal Procedure Code, and therein referred to the contents of the saneha lodged on the 17th September. One of the paragraphs in the said petition runs as follows :
“That the S.I., Buxar after lodging, saneha went to the spot and made enquiry but the said Indrasan Rai and his son Ramakant Rai have not allowed the truck to be taken to the P. S., and is even ready to commit breach of peace.”
And the prayer portion ran as follows :
“It is, therefore requested that your honour would be pleased to kindly direct the Section I., to take the truck into his custody at once and be further pleased to release the same to the petitioner and for this the petitioner shall ever pray.”
3. On the 19th September 1951, the order-sheet shows : “To local police for enquiry and report by 25-9-1951.” On the 22nd September time till 1-10-1951, was allowed to the petitioner, who was the opposite party to the application under Section 144, for production of documents relating to the truck. On the 1st October 1951, the report of the Police was not receivedi but the parties were heard, and the learned Sub-divisional Officer made the following order :
“Ask the S.I., Police to send the truck subject-matter of dispute — to the Fort for custody till such time as the matter is disposed of. Put up on 6-10-1951 or earlier if the S.I. submits report.”
According to the order-sheet, on 6th/7th October 1951, the learned Sub-divisional Officer, Mr. Saran Singh, passed the following order :
“Action of the second party (viz., the petitioner before this Court) in wrongfully detaining the truck speaks of utter disregard of law. The flrst party is the real owner and is allowed to take the vehicle, Further interference by second party will be visited with stern action,”
and later on the same date the second party was directed to deliver the key of the truck for its being handed over to the first party. On the very day on which this order was passed, an application was made by the petitioner to the learned Sub-divisional Officer for staying delivery of the truck to the opposite party as the petitioner was inoving the higher Court, and the learned Sub-divisional Officer was pleased to pass the following order :
“He should obtain a stay order from the appellate Court. The truck meanwhile will be handed over to the 1st party. It is fantastic to suggest that the latter will be damaging the truck. Pile with the record.”
4. The petitioner thereupon moved the learned District Magistrate of Shahabad. This application in revision before the District Magistrate was admitted on the 11th October 1951, and on that day the learned District Magistrate ordered : “Ask S.D.O., Magistrate to stay execution of orders until this application is disposed of.” it appears that the petitioner had also filed a complaint against
Mr. Saran Singh, I.A.S., the Sub-Divisional Officer, Buxar, Mr. F. Ahmad, I.P.S., Assistant Superintendent of Police, Buxar, a Sub-Inspector of Folio; and some constables for making over illegally the truck to Ayub Khan and Enayat Khan and thus causing wrongful loss to the petitioner, and the learned District Magistrate by his order dated the 15th October 1951, held that no cognizance of the offence could be taken without the previous sanction of the Government, and against that order of the District Magistrate the petitioner had moved this Court where the Criminal Revision was pending. On the 29th October 1951, the District Magistrate said :
“This case has arisen out of the same incident for which the petitioner brought a case against the Sub-divisional Magistrate, Buxar, and others. That matter is now before the Hon’ble High Court. A formal rule will issue. I do not think fit to proceed until the Hon’ble High Court has passed orders. This will be reported to the Hon’ble High Court when the rule is received.”
And later the learned District Magistrate passed another order :
“Indrasan Rai has filed a petition for seizure of the truck from Ayub Khan who has prayed that this should not be done. As the case against the S.D.O., is before the Hon’ble High Court, I think that the present status quo should be maintained. Inform Sub-Divisional Magistrate.”
It us net understood why the learned District Magistrate could not have passed orders on that date upon the application of the petitioner as the other matter pending before this Court had nothing to do with the matter before him. The matter be-fore him was whether or not the learned Sub-divi-sional Officer had jurisdiction to pass the order which he did and making over the truck to the other side, and the matter pending before this Court was in regard to the sanction of the Government before cognizance could be taken of the offence alleged against Mr. Saran Singh and others upon the complaint of the petitioner. The two matters were entirely different. It is regretted that the learned District Magistrate should have thought fit to postpone passing proper orders on that date. It is against the order of the learned Sub-divisional Officer dated the 6th/7th October 1951, that the petitioner has come up to this Court, and against the order of the District Magistrate, dated the 29th October 1951, in Criminal Revision No. 63 of 1951.
5. It is a peculiar case of its kind where under Section 144, Criminal Procedure Code, a moveable property has been seized by the police under the orders of the sub-divisional Officer and the same has been made over to one of the contesting parties. The provisions of Section 144 of the Criminal Procedure Code had absolutely no application to the facts of the present case. This section empowers the Magistrates mentioned in Sub-section (1) to act under this section to prevent apprehension of a breach of the peace where there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Upon the facts mentioned, there was no occasion for any apprehension of a breach of the peace between the parties and the application on which a proceeding under Section 144, Criminal Procedure Code, was started, only mentioned that the petitioner and his son “did not allow the truck to be taken to the P.S., and is even ready to commit breach of peace.” The truck, at the time when the
application under Section 144, Criminal Procecure Code, had been made to the Sub-divisional Officer. was in the custody of the petitioner and the opposite party were not residents of that village and, therefore, there was possibly no apprehension of a breach of the peace.
But the Sub-divisional Officer, being in charge of law and order in his sub-division, was the best Judge to find out whether there was or was not an apprehension of a breach of the peace. Conceding for a moment that there was an apprehension of breach of the peace and the Sub-divisional Officer had sufficient ground for proceeding under that section what he actually did could never have been contemplated by the provisions of the section. If he was of the opinion that there was sufficient ground for proceeding under this section and that immediate prevention or speedy remedy was desirable, he should have proceeded in the manner indicated in the section itself :
“direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management.”
The Magistrate, acting under Section 144, had no. authority to seize the truck in question and take away the truck from the custody of the petitioner to the police station and thence to the Fort at Buxar or to anywhere else. No person can be de-prived of the possession of his property except in accordance with law, and there was no provision contained in Section 144, Criminal Procedure Code, or in any other law, authorising the learned Sub-divisional Officer to act in the manner he did on the facts before him. To say the least, it was the most high-handed action of the Sub-divisional Officer which had no foundation in law. It was argued before us on behalf of the opposite party that, law or no law, the learned Sub-divisional Officer in charge of law and order in his Sub-division was in the right in seizing the truck and removing it from the custody of the petitioner to prevent breach of the peace. I really felt surprised when this sort of argument was addressed to us, and, if the learned Magistrate also harbours any such notion of his powers as the executive head of the sub-division he should disabuse himself of that notion and the sooner the better. If he was acting or purporting to act under the provisions of Section 144, he should have taken care to frame his order in the manner indicated in the section itself.
6. His action in removing the truck in question from the custody of the petitioner, first to the police station and then to the Fort, was bad enough, but what was still worse, was to have decided the question of title by holding in express terms that the truck belonged to the opposite party and then delivering the vehicle to the opposite party. This amounts to an usurpation of jurisdiction which did not exist and the learned Magistrate should have known before long that under Section 144, Criminal Procedure Code, a merely summary power is given to prevent breach of the peace and it is never meant to give Jurisdiction to a criminal Court to decide finally even the question of possession and much less to decide questions of title and ownership of a property. 1 do not like to waste any more time over the consideration of the question whether the Magistrate acted within jurisdiction, suffice it to say that the action of the learned Magistrate in starting the proceeding under Section 144, on the facts of this case, seizing the truck, taking it from the custody
of the petitioner, deciding the question of title as to the ownership of the truck, and then making it over to the opposite party, was wholly without jurisdiction, illegal and uncalled for and the order of the learned Sub-divisional Officer dated the 6th/7th October 1951, must be vacated and set aside.
7. The next question is as to the powers of this Court under Section 561-A of the Code of Criminal Procedure. It is argued that under this section the High Court has inherent power:
“to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
The provisions of Section 561-A do not confer any inherent power which the Court did not possess before the section was enacted. All these powers mentioned in that section were possessed by the High Court, and this section merely embodies the inherent powers which the High Court used to exercise before this section was enacted. There is no doubt in my mind that this Court possesses the inherent power to right the wrong occasioned to any party by an act of the Court and to prevent abuse of the process of any Court and to act in a manner to secure the ends of justice. It is inherent in the general jurisdiction of the Court “to act rightly and fairly according to the circumstances towards all parties involved” ‘JAI RERHMA v. KEDAR NATH’, 2 Pat 10. Cairns, L. C. in ‘RODGER V. COMPTOIR d’ ESCOMPTE DP PARIS (1871) L R 3 P C 465, has expressed himself in regard to the inherent rights of the Court as follows :
“One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes o the case.”
In the case of ‘EMPEROR V. NAZIR AHMAD’, AIR 1945 P C 18, their Lordships have laid down that Section 561-A
“gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.”
I, therefore, hold that this Court, acting under Section 561-A, possesses the power to order restoration of the truck in question to the petitioner. The question then is whether, in the circumstances of this case, the Court will exercise the power of restitution which is implicit in the inherent power of this Court. The inherent power of the Court to order restitution under Section 561-A, in my opinion, must, however, be exercised in a case where there is no doubt left in the mind of the Court upon the materials placed before it about the right of the party seeking restitution. If this power is exercised in a doubtful case, instead of doing justice between the parties the Court will be acting unjustly with one of the parties if ultimately it is found by a competent Court of law that the property did belong to that party. I am, therefore, firmly ol the opinion that in a straight case where there are no conflicting claims to the possession and ownership of the property, this Court would be acting within its inherent power to restore that property if that has been removed from the possession of the owner under illegal and wrong orders of the Court.
In the present case both the parties claim owner-ship of the property, and both of them claim possession of the same. The matter of ownership, however, must be decided by the Civil Court, and I do not like to express any opinion about the ownership or even the possession of this property. In my judgment, on the facts of this case, it would not be right for this Court to order restoration of “the truck in question to the petitioner.
8. Mi”. Baldeva Sahay, learned Counsel on behalf of the petitioner, cited several cases to support his contention that this Court should order restoration of the truck by ordering restitution to the petitioner, in the case of ‘LEONGMOW v. TCHUN CHUN’, 12 Oal WN 1044 it was’held that under Section 144, Criminal P. C-, the Court’s custody of the articles in question was wholly without jurisdiction and that the High Court had the power to order that matters should be restored to exactly the same condition as the Magistrate found them in before he had passed the order for bringing the articles to the possession of the criminal Court. The facts in that case were entirely different. A dispute had arisen between the Secretary and members of a certain Church in Calcutta in regard to the money and properties belonging to that Church. With the consent of the parties, under Section 144, Criminal P. C., the contents of the safe and the account books were removed to the custody of the Court, and the High Court held that the custody of the Court was wholly without jurisdiction and ordered the contents of the iron safe and the account books to be placed in the same position in which they were before the order was passed. The contents of the iron safe and the account books undisputedly belonged to the Church and there were no counter claims in regard to the same. In the case of ‘BHAGANATHI SERVAI v. VALAYEE’. AIR 191.7 Mad 629 the facts are not quite clearly-stated. In this case the case reported in ’12 Cal WN 1044′, was followed, and it was held that the order of the Magistrate under Section 144, Criminal P. C., directing the village Munsif to be in possession of the property was without jurisdiction, and the High Court asked the Magistrate to direct the village Munsif to restore the properties to the parties from whom he or the police took possession. In the case of ‘SHWE WA v. C. I. MEHTA’, 5 Rang 553, also the facts were quite different. In that case the respondent had entrusted certain articles of jewellery with the one ‘M’ who had committed criminal breach of trust in respect of them and had pawned the articles in dispute at the pawn shop of appellant. These articles were seized by the police and produced before the Court in the trial under Section 406 against ‘M’. ‘M’ was convicted and at the time of passing judgment the Magistrate directed that the articles in question should be returned to the complainant respondent. After the articles were made over to the respondent, the appellant, the owner of the pawn shop, applied for return of the articles and his application was rejected on the ground that the articles had already been returned to the complainant, and he appealed against that order to the High Court. The High Court directed the return of those articles made over to the complainant
respondent to the appellant. Their Lordships observed that
“it is unjust to the appellant that he should be deprived of the possession to which he is entitled and should be placed in such a position that he must himself institute the civil proceedings or else suffer the loss of his money. Section 561A of the Code supports the view that this Court has the power to order restitution and I have no hesitation in holding that it has such power.”
Undisputedly in this case also the appellant who was the owner of the pawn shop, had been admittedly in possession of the articles on the date when those articles were brought in Court under the direction of the Court. I hold, therefore, that these authorities are of no help to the petitioner as in this case, in my view, neither the ownership nor the possession of the truck was beyond doubt.
9. It may be mentioned that Mr. Sahay contended that under Section 517, of the Criminal P. C. also the Court had the power to pass orders regarding the disposal of the property. That section refers to the power of the Court in an enquiry or a trial in any criminal Court. The word “inquiry” has been defined in Section 4(1)(k) and according to that definition “inquiry” includes every inquiry other than a trial conducted under this Code by a Magis-trate or Court. The question is whether a pro-ceeding under Section 144 can be called an “inquiry”. In the view which I have taken of the powers of this Court under Section 561A of the Code, it is not at all necessary to decide this question, and I must leave it open.
10. I omitted to mention that the learned Sub-divisional Officer committed an error of record in holding that, when the petitioner appeared on the 22nd of September, 1951, and prayed for time, he did not lay claim to the truck’s ownership. I find from the petition filed on that date that in para. 2 of that petition the petitioner had made the following statement : “That this petitioner has got his title deeds etc. in his head office at Calcutta”. The statement in this paragraph conveys to me only one meaning and it is that he did claim title to this truck, otherwise he would not have asked for time to get his title deeds etc.
11. The learned Subdivisional Officer should also have stayed the execution of his order dated the 6th/7th October, 1951, and should have waited for at least a few days to enable the petitioner to get the order of the District Magistrate upon the motion to be filed by the petitioner. The petitioner had clearly stated thai he was going up to the District Magistrate against his order and in all fairness the learned Subdivisional Officer should have given some time before actually delivering the truck to the other side, and I do not understand what he meant when he passed the order upon the application of the petitioner dated the 7th of October to the effect that the petitioner should obtain a stay order from the appellate Court and at the same time ordering the delivery of the truck to the opposite party in the meanwhile. If the truck was to be delivered immediately, there was no question of obtaining a stay order because before the order could be stayed it had already been executed. Courts must act in a manner so that justice must not only be done but Justice must
also ‘seem’ to be done.
12. In the result, I would content myself by merely setting aside the order of the learned Sub-divisional Officer-dated the 6th/7th October, 1951.
Das, J.
13. I agree with my learned brother. The Sub-divisional Magistrate of Euxar showed I think, regrettable ignorance of the relevant provisions of the Code of Criminal Procedure.
14. On the petition which was filed before the learned Subdivisional Magistrate on the 19th Sept-ember, 1951, by Ayub Khan, the learned Subdivisional Magistrate had to decide if it disclosed the commission of any offence with regard to the truck, as a result of which the truck was detained or its possession changed by force or show of force. If that was what the learned Sub-divisional Magistrate thought, he should have treated the petition as a complaint and proceeded in accordance with the provisions of Ss. 516A and 517, Code of Criminal Procedure. If, on the contrary, the learned Sub-divisional Magistrate thought that the petition did not disclose the commission of any offence but merely a dispute with regard to title and possession, he should have referred the parties to the Civil Court for the determination of the question of title; because the Civil Court is the only proper forum for deciding the question of title. The learned Subdivisional Magistrate wrongly applied Section 144 of the Code of Criminal Procedure. It is clear that the provisions of that section did not entitle the Subdivisional Magistrate to take a particular piece of property from the custody of ‘A’ and make it over to ‘B’. This is exactly what the learned Subdivisional Magistrate did. There was an attempt before us to support the action of the learned Subdivisional Magistrate on the ground that it was an executive or administrative act, though purporting to be one under Section 144, Code of Criminal Procedure. I must make it clear that no public officer is above the law, and an act which is neither sanctioned nor authorised by law, cannot be justified on the ground that it is an administrative or executive act. It would be dangerous in the extreme if it were to be held that a public officer can take possession of property from one person and make it over to another by an administrative or executive act.
15. I would have had no hesitation in ordering restitution of the truck in this case, but for my considered opinion that this is really a case of disputed title and possession, and the parties must go to the Civil Court for a determination of the question of title. The application for restitution is really meant for the purpose of gaining a tactical advantage, viz., as to who should be forced to go to the Civil Court as the plaintiff. I do not think that this Court should encourage such tactics. This Court may have the jurisdiction to pass such orders as would prevent abuse of any process of the Court or secure the ends of justice; I do not think that this is a fit case in which such an order should be passed. Nor do I think that it is necessary in this case to pass an order of restitution in order to give effect to any order passed under the Code. The order under Section 144, Code of Criminal Procedure, was a bad order, but it no longer subsists. I think that it is enough to say that the order was without jurisdiction.