P L D 1965 (W (PLP)

This order will dispose of two connected Criminal Revisions Nos. 925 and 1182 of 1964 respectively, filed by Sheikh Inayat Hussain, who describes himself as Managing Director,' Pakasia Cloth Mills Ltd. Misri Shah, Lahore. In Petition No. 925 three respondents have been impleaded (1) the State, (2) Malik Muhammad Rafiq, and (3) Sheikh Fazl‑ur‑Rahman, while in No. 1182 the respondents are only the State and the said Malik Muhammad Rafiq.

2. Dealing first with Petition No. 925 of 1964, the facts, as alleged by the petitioner, are that he is the Managing Director of the company mentioned above, having been appointed first for a period of ten years with effect from 1950 to 1960, which was extended by an agreement executed on the 5th of March 1960, for a further period of ten years. The second agreement was ratified by a resolution of the company passed on the same date and was to be effective from the 7th of March 1960.

3. Under Article 36 of the Articles of Association the general management of the Company was to be in the hands of the Managing Director, who was further to conduct and carry on the business of the Company, including supervision, superintendence and control of its affairs and possession of "factories, work‑shops, agencies, books, vouchers, papers, accounts, documents, stock, securities, funds, assets, effects, property, affairs and concerns whatsoever".

4. On the 18th of July 1964, Malik Muhammad Rafiq, respondent No. 2, filed a complaint with the Senior Superintendent of Police, Lahore, alleging that the petitioner had criminally misappropriated a sum of approximately Rs. 68,

000. The following day a case was registered (F. I. R. No. 226 of 1964) in the Misri Shah Police Station under sections 406, 409, 420 and 379, P. P. C. On the 20th of August, respondents Nos. 2 and 3 applied to the Court of Rana Mahmood Khan Magistrate, for possession of the mills. On the 21st of August, the police submitted a report to the effect that a number of articles belonging to the mills had been made away with and recommended that in order to prevent further offences of that kind the mills should be handed over to respondent No. 2, who was the principal share‑holder. On the 24th of August, Rana Mahmood Khan passed the following order:

5. Against the above order the petitioner filed a revision petition before the learned Sessions Judge; Lahore, who discussed the authorities cited before him, namely, Chuni Lal v. Ishar Das (A I R 1924 Lah.76) Ghulam Ali v. Emperor (A I R 1945 Lah.47) and Messrs Parshottom Das and Banarsidas v. The State (A I R 1952 All. 470), and relying on the first two of these, held that the impugned order was lawful. He further observed in paragraph 7 of his order:‑ "In the case of Ghulam Ali v. Emperor, it was further held that section 523, Criminal P. C., does not give a right of appeal to, or of revision by, the Sessions Judge against the (sic) order passed under section (sic). No authority to the contrary has been brought to my notice by the learned counsel for the petitioner. Accordingly this Court has no jurisdiction to interfere in revision with an order made under section 523, Criminal P. C." He accordingly dismissed the petition by order ate the 17th of September 1964.

6. Against the above order of the learned Sessions Judge the petitioner filed the petition now under consideration.

7. Although the order of the learned Magistrate 'neither cites the provision of law under which it purports to be passed nor even indicates the nature of the property to which it relates, both parties proceeded on the assumption that it was an order under section 523, Criminal P. C. Taking it as such, the impugned order is illegal on several grounds. The first is that section 523 can have no application to immoveable property. The relevant subsection runs: "523. (1) The seizure by any police officer of property taken under section 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 entitles to the possession thereof, or, it such person cannot be ascertained, respecting the custody and production of such property." Learned counsel for the State argues that as section 523, Criminal P. C., uses only the general word "property", the operation of the section cannot be restricted to movable property only, but this contention overlooks the fundamental principle of interpretation that the meaning of a word is to be 'determined by its context. It is obvious that a mill or other immovable property can neither be alleged or suspected to have been stolen nor found under circumstances which create a suspicion of the commission of any offence.

8. The second defect in the impugned order is that it is an essential pre‑requisite for the application of section 523, Criminal, P. C., that the property in dispute should have been seized by a In the present case that condition has not been fulfilled, the position being that on the application of respondents Nos. 2 and 3 the police merely recommended to the Magistrate a certain course of action.

9. The third defect is that the basis of the action taken by the learned Magistrate was not that any offence was suspected to have been committed in respect of the property, the object being to prevent the possible commission of an offence in the future. The section does not permit such preventive action, and from this point of view also the order of the learned Magistrate was illegal.

10. Although the jurisdiction of this Court to interfere in revision with orders under section 523, Criminal P. C., has no been questioned in these proceedings, I consider it expedient to express my respectful agreement with the following observations of Broadway, J. in Chuni Lal v. Ishar Das, already referred to in paragraph 5 above: "The next question is whether this Court has jurisdiction to interfere with the order in revision, it being contended by Mr. Nand Lal that no such power existed. The authority already cited i.e., Ma Thein Nu v. Ma The Hnit 57 I C 81, and which was referred to by Mr. Nand Lal is, however, opposed to this contention, and I have no doubt that, on a proper case being made out, a High Court has jurisdiction to examine orders passed under section 523, Criminal Procedure Code."

11. For the reasons given above the petition is accepted and the impugned order of the learned Magistrate set aside. Possession of the property should be restored to the petitioner forthwith.

12. The facts leading up to Criminal Revision, No. 1182 of 1964 are that in the course of the investigation of the case referred to in paragraph 4 of this order (F. I. R. No. 226 of 1964) the police took possession of Car No. LE‑2107, an air‑conditioner, a pedestal fan and an auto cycle, the car being alleged to have been in possession of the petitioner, while the other articles were on the premises of the company. On the 31st of July 1964, the petitioner presented an application to the Ilaqa Magistrate, Mr. K. M. Yusuf, for the return of the above property on such terms and conditions as the Court might think fit. Respondent No. 2, on the other hand, applied to the same Magistrate that the Car be made over to him on sapurdari. Reports were called from the police and were received on the 1st of August 1964. For some reason not apparent from the material before me, the respondent's application was ordered by the District Magistrate to be sent for disposal to the Additional District Magistrate, who, on the 1st of August 1964, passed the following order:‑ "Muhammad Rafiq is present. He has filed the desired affidavit dilly attested by Oath Commissioner. In view of the fact that he is the biggest shareholder and a case has been registered against other shareholders on his report as also because there is likelihood of the car getting damaged it remains neglected, I order that it be given on sapurdari to Muhammad Rafiq in the amount of Rs: 2,000 on his personal bond that he would keep it in the condition he receives it from the police and produce it to Court as and when called upon to do so and shall also look after its proper maintenance until the case is decided by the trial Court."

13. Against the above order the petitioner filed a petition for revision (Criminal Revision No. 41 of 1964) before the learned Sessions Judge, Lahore, who, by order dated the 6th of October 1964, dismissed it on the basis of the pronouncement made in Ghulam Ali's case, already referred to, that no revision lies to the Sessions Judge from an order under section 523, Criminal P. C. The petitioner thereupon filed the present petition.

14. In this case the preliminary condition that the property in dispute should have been seized by a police officer has been fulfilled, but the others have not. The allegation of the prosecution is that the petitioner had illegally sold the car in dispute to one Mr. Asif. It cannot, therefore, be said that it was alleged or suspected to have been stolen. Further, under Article 36 of the Articles of Association of the 'company, already referred to, the petitioner was entitled to possession of all the property of the mill, and as the car was seized from his possession, it cannot be said to have been found under circumstances which created suspicion of the commission of any offence. The order of the learned Magistrate was, therefore, without jurisdiction. The petition is accordingly accepted. The car in dispute should be restored to the possession of the petitioner forthwith. K. B. A. Petition accepted.