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1975 DIGILAW 337 (KER)

P. J. ZACHARIA v. STATE OF KERALA

1975-12-18

P.JANAKI AMMA

body1975
Judgment :- 1. This revision petition is filed challenging the order of the Sessions Judge, Kottayam in Criminal Revision No. 23 of 1975 on the file of that Court. The above revision petition was filed under the following circumstances: on 10 3 75, the Station House Officer, Changanacherry received information that a lorry load of paddy was being transported without requisite permission from Changanacherry to Kalady in the Ernakulam District. He accordingly proceeded and found the lorry KLO.1949 proceeding with paddy and stopped the vehicle. There were 126 bags of paddy in the lorry. The articles were seized and the vehicle was also taken into custody. Crime No. 96/75 was registered The lorry was being driven by the second petitioner in this case. A mahazar was prepared. A requisition was sent to the District Collector, Kottayam for immediate orders for the disposal of the paddy. The District Collector passed orders directing the sale of the paddy and for keeping the sale proceeds in revenue deposit. Before the orders were complied, on 13-3-75 the first petitioner filed O.P. 1200/75 before this Court praying for an order of injunction restraining the Collector from disposing of the paddy. Notice was given to the State in the above matter and on 213 75, this court passed the following order: "It is submitted by Mr. M. V. Joseph, the learned Govt. Pleader that Crime No. 96/75 of the Changanacherry Police Station has been registered in the matter and the paddy which had been seized would be produced before the Judicial First Class Magistrate, Changanacherry. Therefore. I would vacate the interim injunction granted and direct the petitioner to approach the Magistrate's Court for appropriate relief. When moved by the aggrieved party, the Magistrate will dispose of such application in accordance with law. C.M.P. dismissed. The respondents will produce the paddy without any delay before the Magistrate's Court concerned." On 22 3 75, the lorry with the load of paddy was produced before the Court and the Court directed the paddy to be kept in the custody of the police until otherwise ordered. On the same day, the first petitioner moved the Court for release of the paddy to him on terms. Since there was no proper representation on behalf of the Station House Officer, Changanacherry, the Court directed release of the paddy on a bond for Rs. 2000/- to the first petitioner. On the same day, the first petitioner moved the Court for release of the paddy to him on terms. Since there was no proper representation on behalf of the Station House Officer, Changanacherry, the Court directed release of the paddy on a bond for Rs. 2000/- to the first petitioner. A revision petition was filed by the State against the above order before the Sessions Judge, Kottayam. The case was remitted to the Judicial Magistrate, First Class, Changanacherry for fresh disposal. The contention put forward on behalf of the State was that under S.6A of the Essential Commodities Act, the Court and the Collector are having concurrent jurisdiction for the disposal of the property and that as the Collector had already taken decision of the matter and had passed orders, it was not open to the Court to intervene and interfere with that order. The learned judicial Magistrate however, held that there is nothing in the Essential Commodities Act to exclude the jurisdiction of the Criminal Court to pass orders under S.457 of the Code of Criminal Procedure (corresponding to S.523 of the old Code) and that in this case, since the paddy had not been disposed of in pursuance of the orders of the Collector, the Court was competent to pass appropriate orders of its own. It was held that there were no adequate grounds to depart from the release order already made by that court. Aggrieved by the above order, the State preferred Criminal Revision No. 23/75 before the Sessions Judge, Kottayam. The Sessions Judge held that the District Collector is an authority competent to pass appropriate orders for disposal of the property under the provisions of the Essential Commodities Act and that the Criminal Court is not expected to pass another order in supersession of the orders passed by the Collector. The court further held that the order passed by the District Collector for distribution of the commodity and keeping the price in deposit pending enquiry was not without jurisdiction. The criminal revision petition was accordingly allowed. The petitioners have come up challenging the above order. 2. There is no dispute that the lorry with the load of paddy was intercepted at Manakkachira in Changanacherry and a crime has been registered on the ground that no permit or other papers authorising the transport of paddy were found with the driver. The criminal revision petition was accordingly allowed. The petitioners have come up challenging the above order. 2. There is no dispute that the lorry with the load of paddy was intercepted at Manakkachira in Changanacherry and a crime has been registered on the ground that no permit or other papers authorising the transport of paddy were found with the driver. The investigation, it appears, revealed that the paddy was being transported at the instance of one Appachan, a dealer in paddy at Changanacherry and that it was purchased from one Thachappally Prabhakaran. The name of the first petitioner is not seen disclosed during investigation. The petitioners seem to have claimed the paddy only when they moved this court for delivery of the article in O.P. 1200/75. It is too early to say whether the paddy really belonged to the first petitioner or to somebodyelse. 3. There is no dispute that when an offence falling under S.6A of the Essential Commodities Act is detected, it is competent to the investigating agency to produce the article concerned before the Collector and move for the disposal of the property. It is also open to such authority to register a case and produce the article in respect of which the offence is committed before the Criminal court concerned. Under S.457 of the Cr. P. C., the Magistrate may make such order as he thinks fit respecting the disposal of the property so produced or the delivery thereof to the person entitled to its possession or if such person cannot be ascertained, respecting the custody and production of the property. In the instant case, it is clear from the records that the investigating officer sought directions from the District Collector for the disposal of the property and the District Collector passed orders for such disposal. The point for consideration is whether after District Collector passed the order for disposal of property produced before him, it is competent for the Criminal Court to take up the issue again and pass another order relating to the same property. 4. A preliminary point has also been raised that the Criminal Revision before the learned Sessions Judge was unsustainable in law in view of S.397 (2) of the Cr. 4. A preliminary point has also been raised that the Criminal Revision before the learned Sessions Judge was unsustainable in law in view of S.397 (2) of the Cr. P. C. According to the petitioner, the order passed by the Judicial Magistrate, First Class is in the nature of an interlocutory order and no revision petition would lie against such order in view of the bar under S.397(2) Cr. P. C. The argument appears to be that once the F. I. R is filed in court a proceeding must be deemed to have commenced in that court and the motion for disposal of the property must be considered to be an interlocutory application in such proceeding. 5. The Code of Criminal Procedure does not define the word 'proceeding'. There are a large number of decisions where the word 'proceeding' has been interpreted. Since the interpretation varies according to the nature of the Statute and the context in which the word is used, no purpose will be served by citing too many decisions. Halsbury's Laws of England, Vol. f, page 5, interprets the word 'proceeding'. "The term 'proceeding' is frequently used to denote a step in an action, and obviously it has the meaning in such phrases as 'proceeding in any cause or matter'. When used alone, however, it is in certain statutes to be construed as synonymous with, or including, 'action'. Kochadai Naidu v. Nagayasami Naidu (AIR. 1961 Madras 247) deals with the matter as follows: "The word 'proceeding' is defined in the Shorter Oxford Dictionary as "doing a legal action or process, any act done by the authority of a court of law". In "Words and Phrases" Permanent Edn. Vol. 34, a number of meanings taken from American decisions are given for the word "proceedings." Two of them which I give below bring out the essential import of the words. (1) "The word "proceeding" ordinarily relates to forms of law, to the modes in which judicial transactions are conducted." (p. 141) (2) "The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action invoked." (P. 142). In Ramanathan Chettiar, In re 1942-1 Mad. LJ 111=(AIR. 1942 Mad. In Ramanathan Chettiar, In re 1942-1 Mad. LJ 111=(AIR. 1942 Mad. 390), Venkataramana Rao, J. construing the meaning of the term as it occurred in the Court-fees Act, 1870, observed that the word had been interpreted in various senses in different statutes according to the intent and scope of the statute, some time in a narrow sense and some time in a wide, and the word when used alone had been interpreted to mean "all judicial proceedings." 6. Although the word 'proceeding' has not been defined, S.2 (i) of the Code of Criminal Procedure defines a judicial proceeding as including any proceeding in the course of which evidence is or may be legally taken on oath. 7. J am unable to subscribe to the view that a judicial proceeding starts with the submission of the first information statement and ends with the enquiry or trial. Investigation, enquiry and trial are independent stages between commission of an offence and conviction of the offender. Investigation represents the stage of detection of crime by the agency set up for the purpose and is primarily the work of the police. The fact that for maintaining efficiency and honesty in investigation, the police officer who receives information regarding commission of an offence is called upon to send the first information report to a Magistrate does not mean that a judicial proceeding is initiated in Court. If that be the case the provisions of Chapter XIV of the Code of Criminal Procedure dealing with "conditions requisite for initiation of proceedings" lose their importance. Orders like those granting or refusing bail or directing disposal of property passed during the investigation of a crime are independent functions discharged by a Magistrate. They may themselves be proceedings in the wider sense of that word but are not interlocutory orders in any proceeding. 8. I may refer in this context to the decision in Satyahari v. The State (AIR. 1953 Cal. 661). The case related to S.12 of the West Bengal Criminal Law Amendment (Special Courts) Act (21 of 1949) as amended by Amending Act 12 of 1952. S.12 of the Act excluded application of the provisions of the Act to proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any Court other than a Special Court. S.12 of the Act excluded application of the provisions of the Act to proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any Court other than a Special Court. The petitioner had appeared before the Sub Divisional Officer and had been granted bail before the charge sheet was filed. It was held that proceedings before a Special Court could be started only on a complaint or on receipt of a charge sheet. A Division Bench of the Calcutta High Court observed: "There is no doubt proceedings of some sort as soon as an accused is brought before a court even when there is no complaint or charge-sheet, but the question is whether in S.12 of Act 21 or 1949 the word 'proceedings' before a Court is used in the wider sense or is used in the particular or restricted sense of a judicial proceeding. Even in the Criminal Procedure Code in which S.4 (m) defines the term'judicial proceedings' the word 'proceedngs' is sometimes used in the restricted sense of judicial proceedings. Reference may be made in this connection to S.344, Criminal P. C. which refers to the power of a Court to postpone or adjourn "proceedings". The body of the section reads that if, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may do so for reasons to be recorded. It is, therefore, clear that the word 'proceedings' in this section is used in the sense of inquiry or trial, that is, it is used in the sense of judicial proceedings. Similarly. In in S 435 Criminal P. C. it must be held that the word 'proceedings' is used in the sense of judicial proceedings". 9. S.435 of the repealed Criminal Procedure Code like S.397 of the new Code dealt with powers of revision. Therefore, the principles underlying the above decision squarely apply to the present case. That means the objection regarding the maintainability of the Criminal Revision Petition before the Sessions judge has no force. 10. As mentioned earlier, the main dispute centres round the jurisdiction of the Criminal Court to pass an order regarding disposal of the rice after directions were issued by the District Collector to distribute it among the ration dealers. That means the objection regarding the maintainability of the Criminal Revision Petition before the Sessions judge has no force. 10. As mentioned earlier, the main dispute centres round the jurisdiction of the Criminal Court to pass an order regarding disposal of the rice after directions were issued by the District Collector to distribute it among the ration dealers. Clause (6) (3) of the Rice (Regulation of Movement) 0.1966 provides for production of the rice alone with the vehicles or other conveyances before the appropriate Court. Explanation to the sub-clause reads: " "Appropriate Court" in this sub-clause shall mean such Court as is specified in or under the Essential Commodities Act. 1955 in which the proceedings would lie for contravention of the provisions of this Order and shall also include the Collector of the District referred to in S.6A of the Essential Commodities Act, 1955". 11. There cannot be any dispute that immediately after the seizure of the rice the Sub-Inspector sought directions from the Collector of the District and the Collector passed orders how the articles should be dealt with. This is evident from the fact that the petitioner himself moved the Collector through a petition filed on 10 31975 for the release of the rice. In O.P.No.1200 of 1975, the petitioner expressed apprehension that the respondents therein who included the Collector were taking steps to distribute the paddy and prayed for direction for the return of the paddy or in the alternative to produce the paddy before the "appropriate Court". When O.P. No. 1200 of 1975 came up for hearing before this Court the learned Government Pleader, presumably taking instruction from the Sub-Inspector of Police, Changanacherry, undertook to produce the article before the Judicial Magistrate. Ist Class, Changanacherry. The court directed the petitioner to approach the Magistrate for necessary reliefs. The Magistrate was also given direction to dispose of such application in accordance with law. The direction issued by this Court was not based on the met its of the case. The fact that the article was already the subject matter of the orders of the Collector is not seen brought to the notice of this Court. The Magistrate was also given direction to dispose of such application in accordance with law. The direction issued by this Court was not based on the met its of the case. The fact that the article was already the subject matter of the orders of the Collector is not seen brought to the notice of this Court. The question whether the Magistrate bad jurisdiction to pass an order after the Collector took seisin of the matter did not arise at the time of the disposal of the original petition and therefore, nothing stood is the way of the criminal court to decide the question while disposing of the matter according to law. 12. The point for decision is, therefore, the extent and scope of the powers conferred under the Essential Commodities Act and Clause.6(3) of the Rice (Regulation of Movement) Order, 1966 on the Collector and the Criminal Court in dealing with the articles seized under their provisions. Jurisdiction to pass orders in respect of articles seized vests in the Criminal Court by the general law contained in the Code of Criminal Procedure read along with the Essential Commodities Act. The Collector has also power to pass appropriate orders by virtue of S.6A of the Essential Commodities Act. For exercising powers of confiscation under S.6A, it is not a condition precedent that a prosecution should be pending. The Collector, being an appropriate court for production of the articles seized under Clause.6(3) of the Rice (Regulation of Movement) Order has also the powers of a Court under the Essential Commodities Act. Thus jurisdiction to pass orders regarding disposal of the property produced exists concurrently both in the Criminal Court as also the District Collector. When such is the case, the authorities exercising the powers have an implied obligation and should take particular care to see that conflicts are avoided. In other words, whenever concurrent jurisdiction is conferred, it is implied that assumption of jurisdiction by one will for the time being deprive the other of the jurisdiction to deal with the identical matter. The guidelines for interpreting the Statute are contained in the following passage in Interpretation of Statutes, Maxwell. In other words, whenever concurrent jurisdiction is conferred, it is implied that assumption of jurisdiction by one will for the time being deprive the other of the jurisdiction to deal with the identical matter. The guidelines for interpreting the Statute are contained in the following passage in Interpretation of Statutes, Maxwell. 10th Edition page 191: "In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the true one". 13. In the instant case, the Collector in exercise of the powers conferred on him passed an order regarding the disposal of the rice on 113 1975, long before the production of the article in court. In doing so, he only exercised the jurisdiction conferred on him under law. That the Station House Officer, Changanacherry moved the District Collector for directions is mentioned in the order of the judicial Magistrate. That Court, however, observed: " If actually the paddy seized was "produced before the Collector at any time before 213 1975, and sought his order the position would have been different and this court will have been deprived of this jurisdiction". The above observation presupposes that the Sub Inspector did not actually produce the rice before the Collector. The court omitted to note that production of an article can be effected otherwise than by physical delivery thereof and that there is difference between legal possession and custody. The position is explained by Markby, in his Elements of Law as follows: "Possession sometimes means the physical control simply; the proper word for which is detention. And of course, one person may have the detention and another may have the possession in the legal sense of the term. The position is explained by Markby, in his Elements of Law as follows: "Possession sometimes means the physical control simply; the proper word for which is detention. And of course, one person may have the detention and another may have the possession in the legal sense of the term. Thus the money which is in the hands of my servant is under his immediate control; and in popular language is in his possession; but in a legal sense, inasmuch as that control will be exercised on my behalf exclusively, ft is in my possession, and not in his." In the present case the moment the Sub Inspector of Police approached the Collector and sought directions regarding disposal of the property, the Collector assumed jurisdiction and control over the rice and the lorry and became competent to pass necessary orders for disposal. Any control that the Sub Inspector of Police had over the articles thereafter was to be exercised only subject to the directions of the Collector. In other words, he was keeping the rice for and on behalf of the Collector. The fact that the Sub Inspector of Police produced the articles subsequently before the Magistrate does not amount to cancellation of the Collector's order and does not confer on the Magistrate the jurisdiction to pass fresh orders under S.523 of the Code of Criminal Procedure. If the Magistrate did so, he only encroached upon the jurisdiction of the Collector, which he was not expected to do under the Statute. The order passed by the Magistrate therefore was not in accordance with law. No interference is called for with the order passed by the Sessions Judge vacating the order of the Magistrate, and directing production of the article by the petitioners. 14. The order for disposal of the property was passed by the Collector at a time when nobody claimed the article. It was only later on that the petitioner moved the Collector for a return of the article on the ground that it belonged to him. It is not known whether an order has been passed by the Collector on the above petition. If that has not been done, it is only proper that an opportunity is given to the petitioner to make his representation before the order already passed by the Collector is implemented. Subject to the above direction, the revision petition is dismissed. Dismissed.