Abhay Kumar Sinha v. State Of Bihar — 1978 DIGILAW 145 (PAT)

Judgment Shivanugrah Narain, J. 1. This application by the owner of an Ambassador car bearing Registration No. BRF-7175 is directed against the order, dated the 21st June, 1978 of the Chief Judicial Magistrate, Sitamarhi, rejecting the application of the petitioner for release of the said car which had been seized by the Sitamarhi police in connection with Sitamarhi Police Station Case no.1 (6) 78. 2. The relevant facts are not in dispute. The petitioner is the owner of the aforesaid car. On 1-6-78, at about 12 a. m. , the aforesaid case under various sections of the Penal Code, including sections 307 and 379 was instituted against one Sitaram Muradpuri and 30 to 40 unknown persons, on the fardbeyan of the Presiding Officer of a booth in the 1978 Gram panchayat elections. The prosecution case, very briefly stated, was that on that date an armed mob which had come on various vehicles including can and jeeps etc. and attempted to capture the booth, that the members of the armed mob threw bombs and brickbats, injured several persons and took away the ballot papers and damaged property, that the police party fired in self-defence and that then the mob fled away, that some of the miscreants were fleeing away in the Car BRF-7175 and were arrested and some of the looted ballot papers and some seals were recovered and the car was seized. The report regarding the seizure of the car along with the list of articles seized from the car was sent to the Chief Judicial Magistrate, Sitamarhi. 3. On 16-6-78, the petitioner filed a petition before the Chief Judicial magistrate praying that the car be released to him, on the ground that he was the owner of the car and that he had no concern with the case and the car was lying in the open and was likely to be severely damaged. According to the petitioner, he had lent the car to a friend Manoranjan Prasad Singh, residing Bishwanathpur, and the car was seized while proceeding to the house of the said Manoranjan Prasad Singh while the petitioner was at Calcutta. The learned Magistrate called for a report from the police. According to the petitioner, he had lent the car to a friend Manoranjan Prasad Singh, residing Bishwanathpur, and the car was seized while proceeding to the house of the said Manoranjan Prasad Singh while the petitioner was at Calcutta. The learned Magistrate called for a report from the police. The Sitamarhi police submitted a report relating the circumstances in which the car was seized and stating that the fact of seizure had been reported to the Court of the learned Magistrate and the list of articles seized had also been sent to him. The report further stated that the documents seized from the car disclosed that the car belonged to the petitioner and that it was being kept in the open in the premises of the police station and recommended that the car be released to the petitioner on furnishing security. The learned Chief Judicial Magistrate, as already stated, has rejected the prayer. 4. The learned Magistrate has rejected the prayer mainly on the ground that investigation was still going on in the case. He has relied upon the decision of a learned Single Judge of the Allahabad High Court in Nanoo lal V/s. Sher Mohammad Khan, (1976 Cr LJ 1783) in which it was held that the magistrate has under the Code of Criminal Procedure, 1973. (hereinafter called the new Code) no jurisdiction to pass an order regarding the disposal of a property which has been seized by the police in connection with a case in which investigation was still going on. Shri B. P. Rajgarhia appearing on behalf of the petitioner contends that the aforesaid case was wrongly decided and that under section 457 of the new Code the Magistrate can pass an order regarding such property even while investigation was going on in the case. Shri B. P. Rajgarhia appearing on behalf of the petitioner contends that the aforesaid case was wrongly decided and that under section 457 of the new Code the Magistrate can pass an order regarding such property even while investigation was going on in the case. His contention is supported by a Bench decision of the Allahabad High Court in ajai Singh V/s. Nathi Lal, (1978 Cr LJ 62 ), which overrules the aforesaid decision of the learned Single Judge of that Court, and the decisions of a Bench of the Calcutta High Court in Ambika Roy V/s. State of West Bengal, (1974 cr LJ 1002 : 78 CWN 753), of a learned Single Judge of the Orissa High Court in M. S. Jaggi V/s. Subhaschandra Mohapatra, (1977 Cr LJ 1902) and of a learned single Judge of the Bombay High Court in Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar, (1978 Cr LJ 405 ). The view taken by the learned Single Judge of the Allahabad High Court is, however, supported by the decision of a learned single Judge of the Andhra Pradesh High Court in balaji V/s. State of Andhra Pradesh, (1976 Cr LJ 1461 ). No decision of our court has been brought to my notice and, therefore, in view of the contrary decision of the Andhra Pradesh High Court, the question has to be considered on principle. 5. Section 457 occurs in Chapter XXXIV of the new Code in which the other relevant provisions are sections 451 and 452. Sec.451 confers upon the Criminal Court power to pass such order as it thinks fit in respect of the custody or disposal of the property pending inquiry or trial "when any property is produced before any Criminal Court during any inquiry or trial". Sec.452 confers power on the Court to make such order as it thinks fit for the disposal of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence "when an inquiry or trial in any Criminal Court is concluded". Sec.457, so far as relevant, runs thus : "457 (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial the Magistrate may 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 conditions precedent for making an order respecting the disposal of the property under section 457, therefore, are : (1) the property must have been seized by a police officer, (2) the seizure of the property must have been reported to a Magistrate under the provisions of the Code ; and (3) the property has not been produced before a Criminal Court during an inquiry or trial. The crucial question for determination is what is the meaning of the expression "such property is not produced before a Criminal Court during an inquiry or trial". Or, in other words, when can such property be said to have been not produced before a Criminal Court during an inquiry or trial. According to the learned Single Judge of the Allahabad High Court in the decision referred to above (1976 Criminal Law Journal 1783), a property can be said to have been not produced before a Criminal Court during an inquiry or trial only if the inquiry or trial has concluded and the property has still not been so produced. The learned Judge appears to be of the view that until the inquiry or trial has concluded, and the property has not been produced till the conclusion of the inquiry or trial, it cannot be said that the property has not been produced during the inquiry or trial because it can be produced till the conclusion of the inquiry or trial. in my opinion, this reasoning is unsound. Sec.457 nowhere says that an order under this section cannot be passed until the inquiry or trial has concluded. The requirement is that the "property is not produced before a Criminal Court during an inquiry or trial". There is no requirement that the non-production must be due to any particular reason or reasons. in my opinion, this reasoning is unsound. Sec.457 nowhere says that an order under this section cannot be passed until the inquiry or trial has concluded. The requirement is that the "property is not produced before a Criminal Court during an inquiry or trial". There is no requirement that the non-production must be due to any particular reason or reasons. So long as the property has not been produced during an inquiry or trial, the requirement that the property is one which has not been produced before a Criminal Court during an inquiry or trial is satisfied. The non-production may be for any reason including the reason that the case is still at the stage of investigation and neither inquiry nor trial has commenced. As Gadgil, J. of the Bombay High Court pointed out in the case reported in 1978 Criminal Law Journal 405 (supra), the expression "such property is not produced before a Criminal Court during an inquiry or trial" should be construed to mean "that all that the Legislature wants is that the property has not been produced before the Magistrate. Such non-production may be on account of (1) absence of any inquiry or trial, or (2) though the inquiry or trial is pending, still the investigation agency has not produced it". 7. Further, the expression used "is not produced" and not has never been produced. The expression is not produced has reference to the point of time when the Magistrate to whom the seizure has been reported is called upon to make an order for disposal of such property and it cannot be interpreted to mean has never been produced in the inquiry or trial. In this connection, the following observations of Chaturvedi, J. , who spoke for the bench of the Allahabad High Court, in the case of Ajai Singh (supra), with which I respectfully agree, are opposite : "in the expression such property is not produced before a Criminal court during an inquiry or trial the legislature has used present indefinite tense in passive voice. As such it is not permjssible to interpret them to mean may not be produced in Court in an inquiry or trial at any time or as will not be produced in an inquiry or trial, so that the Magistrate has to wait until an inquiry or trial is held by a Criminal Court and the property is actually not produced in that Court The words is not produced etc. have reference to the point of time when the Magistrate to whom seizure has been reported is called upon to make an order for disposal of such property. At the relevant time i. e. when he has to make an order for disposal of property, the Magistrate has to ascertain if the property is produced or not in a Criminal court during an inquiry or trial. If it is produced, he will have no jurisdiction to deal with it. In case it is not produced before a Criminal Court during an inquiry or trial, he will make an order for its disposal in the prescribed manner. " The interpretation that a property can be held to be not produced during an inquiry or trial only if it is not so produced till the conclusion of the inquiry or trial is not in accord with the plain, literal and grammatical meaning of the words used in a section 457. The plain grammatical meaning of the words used favours the interpretation that a property is not produced during the inquiry or trial if it is not so produced for any reason including the reason that the inquiry or trial has not yet commenced. 8 The aforesaid interpretation is supported by the scheme, context and the aims and objects of the enactment. The scheme of Chapter XXXIV of the new Code in which sections 451, 452 and 457 occur is that the order regarding the custody of disposal of the property seized by police officer and reported to a Magistrate or produced before a Criminal Court should be passed by the Magistrate or the Criminal Court in seisin of the case, as the case may be. The objects of vesting this power in a judicial authority like the magistrate or the Criminal Court is that the judicial authority in passing the order would take into consideration the interests both of the investigation or inquiry or the trial and of the person entitled to possession of the property and, thereby, to ensure that the right of the person entitled to possession of the property would not be interferred with except in so far as the legitimate interests of the investigation of a criminal case or the administration of justice so required. Considered from this point of view, sections 451, 452 and 457 may be regarded as remedial provisions enacted for the benefit of a person who is entitled to possession of the property seized by the police or produced before a court, for, under these sections the Court has a power in a proper case to direct the release of the property to him. Being a remedial provision, these sections should be liberally construed. Sec.451 confers the power to make an order regarding the disposal of the property during the pendency of the inquiry or trial upon the Criminal Court and makes its production, during such inquiry or trial, a condition precedent to the exercise of the power. Sec.452 confers upon the Court the power to pass such an order after the conclusion of the inquiry or trial. In both these cases, the power is vested in the Criminal Court in seisin of the case. The only other provision empowering a judicial authority to pass an order regarding the disposal of such property is contained in section 457. The power conferred by section 457 can be exercised by the Magistrate "whenever the seizure of property by any police officer is reported to Magistrate under the provisions of the section". The only limitation is that the property seized must not have been produced before a Criminal Court during an inquiry or trial. It can reasonably be assumed that the legislature having made provision for the exercise of the power during the inquiry or trial and also after the inquiry or trial would also make provision for the exercise of the power by a judicial authority prior to the commencement of the inquiry or trial. It can reasonably be assumed that the legislature having made provision for the exercise of the power during the inquiry or trial and also after the inquiry or trial would also make provision for the exercise of the power by a judicial authority prior to the commencement of the inquiry or trial. The necessity for protecting the interests of the person entitled to possession of the property during the stage of investigation is not less than during the stage of inquiry or trial or after the conclusion of the inquiry or trial. In the absence of words unmistakably pointing to that conclusion, an intention to deny the power to pass an order regarding disposal of property before the commencements of an inquiry or trial, that is to say, during investigation etc. , may not be attributed to the legislature. 9. The learned single Judge of the Andbra Pradesh High Court in balajis case (supra) appears to be of the opinion that the use of the expression during the inquiry or trial in the expression "when such property is not produced before a Court during the inquiry or trial", which lays down a condition precedent for the exercise of the power under section 457, clearly evinces the intention of the legislature to deny to the Magistrate the power to pass an order in cases where the inquiry or trial has not yet commenced, the condition precedent being not non-production simpliciter, but non-production during inquiry or trial. I do not agree. As I have pointed out, the construction that a property is not produced before a Criminal Court during inquiry or trial, even if it is not produced on account of the fact that the inquiry or trial has not yet commenced is in consonance with the plain and literal meaning of the words used. If the intention of the legislature was that the exercise of the power was limited to the period subsequent to the commencement of the inquiry, it would have clearly manifested its intention by using the words during an inquiry or trial in the opening clause of section 457 and not introduced the limitation by a side wind as it were. If the intention of the legislature was that the exercise of the power was limited to the period subsequent to the commencement of the inquiry, it would have clearly manifested its intention by using the words during an inquiry or trial in the opening clause of section 457 and not introduced the limitation by a side wind as it were. The object underlying the use of the expression "and such property is not produced before a Criminal Court during an inquiry or trial" is not to limit the exercise of the power to a stage subsequent to the commencement of the inquiry or trial. The object clearly is to prevent an overlapping between the provisions of section 457 and of section 451 which confer upon the Criminal Court the aforesaid power "when any property is produced before any Criminal Court during inquiry or trial" and thereby avoid a conflict of jurisdiction between the Magistrate to whom the seizure has been reported and the Criminal Court in seisin of the case. It is also significant that while the power under sections 451 and 452, which can be exercised during the pendency of the inquiry or trial or after the conclusion of the inquiry or trial, is vested in the Criminal Court in seisin of the case, the power under section 457 is not vested in the Criminal Court in seisin of the case but in a Magistrate. If the power was to be exercised only after the commencement of the inquiry or trial there seems to be no reason why that power should have been vested in a Magistrate and not in the Criminal Court in seisin of the case. Further, the construction that the power under section 457 can only be exercised after the commencement of the inquiry or trial would leave lacuna in the Act inasmuch as a judicial authority would be without power to pass an order of disposal of property seized by the police in a case in which the inquiry or trial has not yet commenced. Such a construction is not in accord with reason, justice and convenience and may not be adopted unless the: words used compel that construction. As I have shown already, the words used do not compel that construction. 10. Such a construction is not in accord with reason, justice and convenience and may not be adopted unless the: words used compel that construction. As I have shown already, the words used do not compel that construction. 10. I, therefore, hold that the requirement of section 457 that such property is not produced before the Criminal Court during inquiry or trial is satisfied when the non-production is on account of the fact of the absence of any inquiry cr trial or on account of the fact that the, inquiry or trial has not yet commenced as the investigation into the case was still pending and thus the provisions of section 457 of the new Code are wide enough to confer upon the Magistrate power to pass an order in respect of the disposal of the property even when the case is at the stage of investigation and neither inquiry nor trial has commenced. The learned Magistrate has, therefore, erred in rejecting the prayer for release of the case merely because the case was still in the stage of investigation. 11. It is not disputed that the other conditions precedent to the exercise of the power under section 457 are fulfilled in this case, viz. , that the property has been seized by a police officer and the seizure of the property has been reported to the Magistrate under the provisions of the new Code. The question, however, remains whether it is a fit case in which the prayer of the petitioner for release of the car to him should be allowed. In my opinion, it is. The learned Magistrate has merely said that the car would be required as a material exhibit in the case as it was used to perpetrate the offence. The circumstance that the property seized would be required as a material exhibit in the case is not always decisive, other relevant considerations, viz. , the damage to the property and the likely loss to the owner if the property is not relased, whether even if released, the production of the property can be reasonably assured, have also to be borne in mind. There is no allegation that the car would be used in perpetration of the offences. The police concedes that the car is likely to be damaged as it is kept in the open and has recommended that the car be released to the petitioner. There is no allegation that the car would be used in perpetration of the offences. The police concedes that the car is likely to be damaged as it is kept in the open and has recommended that the car be released to the petitioner. The petitioner is admittedly the person entitled to possession of the car. In there circumstances, specially as the prayer for release is not opposed by the police, i think, it is pre-eminently a fit case for the exercise of the powers undee section 457 by making an order for delivery of the car to its owner, the petir tioner, subject to his undertaking to produce it if and when required to do so by the appropriate authority. 12. I would, accordingly, allow the application, set aside the order of the learned Magistrate and direct that the aforesaid Ambassdor Car, BRF-7125, seized in Sitamarhi P. S. Case No. l: (6)-78, be released to the petitioner on his executing a bond of Rs.2,000 with two sureties of the like amount each, to the satisfaction of the Chief Judicial Magistrate, Sitamarhi, to produce the said car as and when required to do so by the Chief Judicial Magistrate or by the Court holding either the inquiry or the trial into the case. Application allowed.