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1982 DIGILAW 377 (RAJ)

Jugal Kishore v. Babulal

1982-09-30

S.C.AGRAWAL

body1982
AGRAWAL, J. —This revision petition is directed against the order dated 18th November, 1981 passed by the Judicial Magistrate 1st Class No.2, Jodhpur in Criminal Case No. 206/30. By his order aforesaid, the Judicial Magistrate in exercise of his power under section 457 Cr.P.C. has directed that the scooter which has been placed in the custody of non-petitioner Babulal under order dated 6th February, 1980 may remain in the custody of the said non-petitioner. 2. The facts giving rise to this revision petition are briefly as under. During the course of investigation of case No. 27, dated 2nd February, 1980 under sections 341, 323, and 427 I.P.C. the S.H.O., P.S. Udai Mandir, Jodhpur found a scooter bearing Engine No. 109321 and chasis no. ox22/oxoox81551 in the possession of the non-petitioner Babulal and on cheking it was found that there was no registration certificate and insurance certificate for the said scooter and that the scooter did not bear the front and the rear number plates. The scooter was, therefore, seized under section 129A of the Motor Vehicles Act. By the order dated 6th February, 1980, the Judicial Magistrate 1st Class No. 2, Jodhpur gave the interim custody of the said scooter to non-petitioner Babulal subject to the condition that he would not operate the same on the road and would produce the same whenever required to do so and would not transfer the same to any person. On 10th August, 1980, a challan in respect of offences under sections 22/127, 94/125, 56/107 and 129A of the Motor Vehicles Act was submitted by the police in the court of Judicial Magistrate No. 2, Jodhpur. The Judicial Magistrate by his order dated 14th October, 1980 dismissed the said challan on the ground that the period of limitation for filing the said challan as prescribed under section 468 (2) (a) Cr.P.C. was six months and that the challan had been filed after the expiry of the aforesaid period of six months. The Judicial Magistrate by his order dated 14th October, 1980 dismissed the said challan on the ground that the period of limitation for filing the said challan as prescribed under section 468 (2) (a) Cr.P.C. was six months and that the challan had been filed after the expiry of the aforesaid period of six months. On 4th December, 1980, the petitioner, Jugal Kishore, submitted a petition under section 457 Cr.P.C. before the Judicial Magistrate 1st Class, No. 2, Jodhpur, whereby the petitioner prayed that the scooter which had been seized from the possession of non-petitioner Babulal may be delivered to the petitioner for the reason that the petitioner is the owner of the said scooter and is entitled to the possession of the same and that the non-petitioner has no right over the said scooter. The aforesaid application of the petitioner was opposed by the non-petitioner who filed a reply dated 17th Aug. 1981, wherein it was submitted that the rival claims of the petitioner and the non-petitioner had been considered by the court when it passed the interim order dt. 6th Feb. 1980 and by the said order, the non-petitioner was found entitled to the custody of the said scooter and in view of the aforesaid order, the application filed by the petitioner should be dismissed. In his aforesaid reply, the non-petitioner also pleaded that the non-petitioner had obtained the possession of the scooter legally and there is nothing on record to show that the non-petitioner had committed any offence and, theie-fore, the non-petitioner was legally entitled to the possession of the scooter. The Judicial Magistrate by bis order dated 12th November, 1981, rejected the application of the petitioner and directed that the scooter should be allowed to remain in the custody of the non-petitioner. The Judicial Magistrate was of the view that no offence had been disclosed with regard to the aforesaid scooter and since the scooter was recovered from the possession of the non-petitioner, the non-petitioner was entitled to the possession of the same. The Judicial Magistrate has placed reliance on the decision of this Court in Kailash Chandra vs. Parasmal (1). 3. Being aggrieved by the aforesaid order passed by the Judicial the petitioner has filed this revision petition. 4. I have heard Shri MX. Shrimali, the learned counsel for the petitioner and Shri Sarwan Kumar the learned counsel for the non-petitioner. 5. The Judicial Magistrate has placed reliance on the decision of this Court in Kailash Chandra vs. Parasmal (1). 3. Being aggrieved by the aforesaid order passed by the Judicial the petitioner has filed this revision petition. 4. I have heard Shri MX. Shrimali, the learned counsel for the petitioner and Shri Sarwan Kumar the learned counsel for the non-petitioner. 5. Shri Shrimali has submitted that while passing an order for disposal of property under section 457 Cr.P.C , the Magistrate is required to ascertain the person who is entitled to the possession of the property and that in the present case since the petitioner as well as the non-petitioner were both claiming that they were persons entitled to the possession of the scooter it was incumbent upon the Judicial Magistrate to have enquired as to whether the petitioner or the non-petitioner was entitled to the possession of the scooter and that the Judicial Magistrate has erred in passing the order for delivering of the scooter to the non-petitioner without holding such an enquiry and merely on the ground that the scooter had been recovered from the possession of the non-petitioner. In support of his aforesaid submission Shri Shrimali has placed reliance on the decision of this Court in Mohan Singh vs. State (2). 6. Mr. Sarwan Kumar, the learned counsel for the non-petitioner has, on the other hand, submitted that in cases where no crime has been committed the court should deliver the property to the person from whom it was seized and that since in the present case, no crime has been held to have been committed by the non-petitioner in respect of the scooter, the non-petitioner was entitled to obtain the possession of the scooter because the same had been sized from his possession. In support of his aforesaid submission, Shri Sarwan Kumar has relied upon the decision of the Supreme Court in N. Madhavan vs. State of Kerala (3) as well as the decisions of the Allahabad High Court in M/s Purshottam Das Banarsi Das vs. State through Harshad Bai Natwarlal (4) and Muneshwar Bux Singh vs. State through Raghunandan Prasad (5) and the decision of this Court in Kailash Chandras case (Supra). 7. The provisions with regard to the disposal of property are contained in Chapter XXXIV (sections 451 to 459) of the Code of Criminal Procedure, 1973 (New Code). 7. The provisions with regard to the disposal of property are contained in Chapter XXXIV (sections 451 to 459) of the Code of Criminal Procedure, 1973 (New Code). Section 451 empowers a criminal court to pass an appropriate order for the interim custody of the property pending the conclusion of the enquiry or trial, and, if the property is subject to speedy and natural decay, or, if it is otherwise expedient so to do, for the sale or disposal of the said property. Section 452 makes provision with regard to the disposal or delivery of property at the conclusion of the enquiry or trial. Sub-section (1) of section 457 deals with cases where the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during an enquiry or trial and empowers the Magistrate to make such order as it 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. Sub-section (2) of section 457 further provides that if the person entitled to possession of the property is not known the Magistrate may detain it and may issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. Section 458 provides that if no person establishes his claim to such property within the period specified in sub-section (2) of section 457 and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceedings of such sale shall be dealt with in such manner as may be prescribed. A perusal of the aforesaid provisions shows that a distinction has been drawn between an interim order passed under section 451 and a final order passed under section 452 and 457. A perusal of the aforesaid provisions shows that a distinction has been drawn between an interim order passed under section 451 and a final order passed under section 452 and 457. While passing a final order under sections 452 and 457, it is required that the property should be delivered to the person entitled to the possession thereof, but there is no such requirement in respect of an interim order passed under section 451. This shows that while passing an interim order for the custody of the property under section 451, the court is not required to hold an enquiry as to whether person to whom the property is to be delivered, is entitled to the possession thereof or not but while passing a final order under sections 452 and 457, the court is required to ascertain whether the person to whom the property is to be delivered, is entitled to the possession thereof or not. This would mean that the mere fact that the property was recovered from the possession of the person, who is claiming the delivery of the same would, by itself, not justify the passing of final order under sections 452 and 457 for delivery of the said property to him unless the court finds that the said person was entitled to the possession of the same. Section 458 also supports this inference in as much as in cases where the person in whose possession the property was found is unable to show that it was legally acquired by him, it empowers the Magistrate to direct that the property shall be at the disposal of the State Government and this contemplates an enquiry into the question whether the person in whose possession the property was found had legally acquired it or not. It can, therefore, be said that the mere fact that the property was recovered from his possession would not entitle a person to an order for delivery of the property under sections 452 and 457 and if the court finds that the said person had not legally acquired the possession of the said property and was not entitled to the possession thereof, it may refuse to pass an order for delivery of the property to him even though it had been recovered from his possession. 8. 8. In Mohan Singhs case (2), this Court was dealing with the provisions of section 523 of the Code of Criminal Procedure,, 1898 (old Code) which were, in parti materia, with section 457 Cr.P.C. and had to consider the question as to whether the Magistrate while passing an order for delivery of the property could hold an enquiry with regard to the person who was entitled to the possession thereof. It was held that the Magistrate was competent to hold such an enquiry. In the said case, it has been observed as under : "It is true that under s. 523, Criminal P.C. the Magistrate can pass an order for the disposal of the property, without an enquiry, if the person entitled to the possession of the property can be ascertained on a consideration of the materials appearing from the police record. However, the expression "person entitled to possession" is significant and it should not be equated with the expression "the person from whose person the property was taken". It may be that in determining the question as to who should be considered entitled to possession, the fact that the property was recovered from the possession of a particular person during investigation may be very relevant and a weighty consideration but it cannot always and necessarily be conclusive. Consequently, even when it may be ascertainable that the property was recovered from the possession of a certain person, still the jurisdiction of the Magistrate to direct an enquiry to ascertain the person entitled to possession cannot be barred." 9. To the same effect is the decision in A.S.S. Ahmed Sahib vs. Commissioner of Police, Madras (6), where a learned Judge of the Madras High Court, while dealing with the provisions of section 523 of the old Code, has observed as under :— "Normally, in cases where the offence is not made out, the property should be delivered to the person from whom it is seized or taken. But it will depend upon the circumstances of each case. In such cases, the actual possession of the property at the time it was seized may be a relevant factor but not conclusive to determine the entitlement of such possession. The words used in section 523 (1), Criminal P.C., are "the person entitled to the possession of the property". These words cannot be equated with actual possession. In such cases, the actual possession of the property at the time it was seized may be a relevant factor but not conclusive to determine the entitlement of such possession. The words used in section 523 (1), Criminal P.C., are "the person entitled to the possession of the property". These words cannot be equated with actual possession. Nor can they be equated with the expression "the person from whom the property is seized or taken". A person may be in unlawful possession at the time it was seized though he has not committed the offence and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of property at the time of seizure, but as to who is entitled to lawful possession. The expression entitled to possession is the sine qua non for the delivery of property under section 523, Criminal P.C." 10. In N. Madhavans case (3), Supreme Court was dealing with the provisions of section 517 of the old Code (section 452 of the new Code). In that case, the appellant before the Supreme Court had been tried on a charge under section 302 I.P.C. for shooting dead, with his 12 bore licenced gun, one Bhaskaran alias Vasu and the gun by which the appellant is said to have committed the offence was seized. The Sessions Judge acquitted the appellant of the charge under section 302 I.P.C. and accepted the plea of self defence raised by him but had passed an order for the confiscation of the gun. The aforesaid order of confiscation passed by the Sessions Judge was upheld in revision by the High Court. The Supreme Court set aside the order passed by the Sessions Judge for confiscation of the gun and directed that the possession of the gun be restored to the appellant. In that case, after taking note of the provisions of section 517 of the old Code, the Supreme Court has observed as under:— "An analysis of this provision would show that it refers to property or document (a) which is produced before the Court, or (b) which is in the custody of the Court, (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence. Then at the conclusion of the enquiry or trial, the disposal of any class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to the possession thereof". "The words "may make such order as it thinks fit" in the section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such a well-recognised principles is that when after an inquiry of trial the accused is discharged or acquitted, the Court should normally restore property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt as in the instant case that the property in question was seized from the custody of such accused and belonged to him." 11. The aforesaid observations made by the Supreme Court show that in respect of the property falling under class (a) or (b), the Court should normally restore it to the person from whose custody it was taken and that departure from this general rule is not to be lightly made when there in no dispute or doubt that the property in dispute was seized from the custody of such person and deliver it to him. In other words the aforesaid decision postulates that departure can be made from the aforesaid rule in cases where there is no dispute or doubt about the property being seized from the custody of the accused. 12. In that case, the Supreme Court found that the gun in question did not fall either under class (c) or class (d) because it was neither property regarding which any offence appeared to have been committed nor which had been used for the commission of any offence and that the gun was obviously property falling under class (b). 12. In that case, the Supreme Court found that the gun in question did not fall either under class (c) or class (d) because it was neither property regarding which any offence appeared to have been committed nor which had been used for the commission of any offence and that the gun was obviously property falling under class (b). In that case, the Supreme Court held that there was no material indicating circumstances which would warrant a departure from the general rule aforesaid. 13. In Kailashs case (1), this Court was dealing with a question with regard to the interim custody of a tractor and has considered the decision in N. Madhavans case (3) as well as the decision of the Allahabad High Court in M/s Purshottam Das Banarsidass case (4) and the decision of this Court in Mohan Singh, case (2). In this case, the Judicial Magistrate had passed an order directing the interim custody of the tractor to the complainant on the ground that the registration of the tractor was in the name of the complainant. This Court held that each case would depend upon its own facts on various considerations as warranted by the facts and that there can not be any inflexible rule that the vehicle should invariably be returned to its registered owner. In the said case, it has further been observed that if no offence has been committed in respect of a property than the setting of criminal machinery of law by the complaint is nothing but gross abuse of the process of the court and in such cases, the property is necessarily to be returned to one, who is entitled to its possession at the time of its recovery of the vehicle and who has not committed any offence in respect thereof to make its possession unlawful. The aforesaid decision also shows that while passing an order for delivery of possession of the property in cases where no offence has committed the Magistrate has to examine as to who is entitled to the possession of the said property and whether he has committed any offence in respect thereof to make its possession unlawful. The aforesaid decision also shows that while passing an order for delivery of possession of the property in cases where no offence has committed the Magistrate has to examine as to who is entitled to the possession of the said property and whether he has committed any offence in respect thereof to make its possession unlawful. The aforesaid decision does not, therefore, detract from the view taken by me that while passing an order under section 457 Cr.P.C., the Magistrate must determine the person who is entitled to the possession of the said property and should order the delivery of the said property only to such a person. 14. In the present case, the impugned order dated 12th November, 1981 passed by the Judicial Magistrate shows that the Judicial Magistrate did not make any determination as to whether the non-petitioner was entitled to the possession of the scooter and he has passed the order for the retention of the custody of the scooter by the non-petitioner on the sole ground that the scooter had been recovered from the possession of the non-petitioner. In my opinion, the Judicial Magistrate was not right in adopting this course. Since there was a dispute between the petitioner and the non-petitioner with regard to the custody of the scooter, the Judicial Magistrate ought to have decided as to whether the non-petitioner was entitled to the possession of the scooter before passing an order for delivery of the possession of the scooter to the non-petitioner under section 857. 15. Shri Sarwan Kumar has, however, submitted that the Judicial Magistrate, while passing the interim order dated 6th February, 1980, had considered the rival claims of the petitioner and the non-petitioner had and directed that the custody of the scooter be given to the non-petitioner on the view that the non-petitioner was entitled to the possession of the same and, therefore, it was not necessary for him to hold a fresh enquiry into the question as to whether the non-petitioner was entitled to the possession of the scooter at the time of passing the order dated 12th Nov., 1981. I am unable to accept the aforesaid contention. I am unable to accept the aforesaid contention. The order dated 6th February, 1980 was an order with regard to the interim custody of the scooter during the pendency of the enquiry and it was passed under section 431 Cr.P.C. For the purpose of passing such an order, an enquiry into the question as to whether non-petitioner was entitled to the possession of the scooter was not necessary. It may also be observed that the petitioner had filed a petition before this Court S.B. Criminal Misc. Application No. 17/80 under section 482 Cr.P.C. against the aforesaid order dated 6th February, 1980 and the said petition was dismissed in limine by this Court by its order dated 3rd May, 1980 on the ground that the order made by the Magistrate does not involve the release of the scooter in favour of the non-petitioner and that the scooter was still custodia legis, and that instead of keeping the physical custody of the scooter with itself the court had given it to its agent for safe custody on certain conditions to be complied with by the agent. In my opinion, therefore, no assistance can be drawn by the non-petitioner from the order dated 6th February, 1980 passed by the Judicial Magistrate with regard to the interim custody of the scooter. 16. In the result, the revision petition is allowed, the order dated 12th November, 1981 passed by the Judicial Magistrate 1st Class, No. 2, Jodhpur in Criminal Case No. 206/80 is set aside and the matter is remanded back to the Judicial Magistrate 1st Class, No. 2, Jodhpur for deciding the application dated 4th December, 1980 submitted by the petitioner under section 457 Cr.P.C. in accordance with the law.