ZAHEER AHMED v. STATE OF KARNATAKA — 1982 DIGILAW 42 (KAR)

M. S. NESARGI, J. ( 1 ) THIS petition is filed challenging the order dated 6 7 1981 passed by the Judicial Magistrate, I Class, II Court, Bel- gaum, in private Complaint No. 30 of 1981, directing that the interim custody of the lorry bearing registration No. MYT 5253 be given to respondent 2 on his executing an indemnity bond in a sum of Rs. 50,000 and furnishing one surety for the like sum and also further directing that respondent 2 should not change the shape, model or any part of the vehicle pending disposal of the case. The few facts relevant for disposal of this petition are as follows : on the filing of the aforementioned private complaint by respondent 2, the judicial Magistrate, I Class, Chikodi, passed an order under S. 156 (3) of Cr. PC (to be hereinafter referred to as the Code), and also directed issue of search warrant. Ultimately, the search warrant was executed and the vehicle was produced in the said Court. Thereafter respondent 2 the complainant and one Zaheer Ahmed, who is the petitioner in this case, filed applications before the magistrate praying for interim custody of the vehicle. Each one of them produced documentary material in support of his claim for interim custody. Then on the application filed before the chief Judicial Magistrate, Belgaum, in crl. Mise. Case No. 43 of 1981, for transfer of the case from the Court of the Judicial Magistrate, I Class, Chikodi, to any other Court, the Chief Judicial Magistrate, Belgaum, withdrew the case and made over the same to the Court of the judicial Magistrate, I Class, II Court, Belgaum. It is appropriate to state at this stage that the learned Magistrate has in the impugned order, gone minutely into the documentary material produced by each one of them and has also concluded that the complainant had made out a prima facie case and established better title or superior title than the registered owner viz. , the present petitioner. Thereafter he has proceeded to pass the order already narrated. ( 2 ) THE first question to be gone into is whether under the facts and circumstances of the case as narrated above, the provisions of S. 457 or S. 451 of the Code apply. , the present petitioner. Thereafter he has proceeded to pass the order already narrated. ( 2 ) THE first question to be gone into is whether under the facts and circumstances of the case as narrated above, the provisions of S. 457 or S. 451 of the Code apply. Plain reading of S. 457 of the Code makes it evident that it does not apply to the facts and circumstances of the case, because it deals with a report of seizure in regard to p operty seized by the police vis-a vis the person entitled to possession thereof. Production of the property before the Court pending enquiry or trial, is not dealt with in S. 457 of the code. S. 451 of the Code reads as follows :"451. Order for custody and disposal of property pending trial in certain cases :-When any property is produced before any Criminal Court, during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or of it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of". The main ingredient is, as is clear from the reading of the section, that the property should be produced before a Criminal court during an enquiry or trial. In the case on hand, it is undisputed that there was no trial pending before the magistrate. Therefore, it is to be seen whether an inquiry was pending before the magistrate. The fact that the truck was produced before the Magistrate cannot be gainsaid. The word 'inquiry' is defined in s. 2 (g) of the Code as follows :"2 (g ). 'inquiry' means every inquiry, other than a trial, conducted under this code by a Magistrate or Court". ( 3 ) IT has been already seen that on the filing of the complaint by respondent 2, the then Magistrate passed an order under S. 156 (3) of the Code i. e. . for investigation and report by the police, keeping the complaint pending on his file. He was awaiting the report of the police. On receipt of the report, question of taking cognizance of the offences would have arisen. for investigation and report by the police, keeping the complaint pending on his file. He was awaiting the report of the police. On receipt of the report, question of taking cognizance of the offences would have arisen. The offences complained of are under Ss. 392 and 403 of IPC. These facts and the position in law lead to the conclusion that the Magistrate had directed the police to investigate and report to him so as to enable him to take further action regarding taking cognizance of both or any one of the offences etc. Hence, what was pending before the Magistrate fails within the ambit of 'inquiry'. Therefore, it will have to be held that the said truck was produced before the Magistrate pending an inquiry into the private complaint filed by respondent 2 This conclusion makes the provisions of S. 451 of the Code applicable. When any property is produced before the Court and S. 45j of the Code applies, the Court would be seized with the custody of the property. It has to decide whether it should keep the property in its own custody or leave it in the custody- sense being possession of another person, depending on the nature of the property. The fact that the property is an animal like bullock, buffallo and so on may make it inconvenient for the Court to retain it fa its own custody. If the property is a jewel or a sword or a knife or a rifle or a gun, the Court may find it convenient to retain the same in its own custody without handing over possession to any one else. The court is responsible for the safe custody of the property. It is the duty of that Court to see that the property remains in the very condition when it was produced before it till the final decision in the case and a final order in regard to disposal of property is passed. To achieve this object, absolute discretion is allowed to the Court. Only when the property is subject to speedy and natural decay or it is otherwise expedient so to do, the Court has power, after recording such evidence as it thinks necessary, to pass an order that it should be sold or otherwise disposed of. To achieve this object, absolute discretion is allowed to the Court. Only when the property is subject to speedy and natural decay or it is otherwise expedient so to do, the Court has power, after recording such evidence as it thinks necessary, to pass an order that it should be sold or otherwise disposed of. ( 4 ) THE final arder passed in this case Is of handing over possession, though the words 'interim custody' are used, it means that the Magistrate -I am certain -has meant possession, to respondent 2 on his fulfilling conditions which have been already narrated. The Magistrate has used his absolute discretion in regard to the safety of the property in the manner that is found narrated in the impugned order There is no grievance that security of Rs. 50,000 is inadequate and the condition that the complainant should not change the shape or model of the truck, is also inadequate for the safety of the truck. ( 5 ) I am of considered opinion that no person has a right to claim custody or possession of the property when the ingredients of S. 451 of the Code apply. If any person comes forward with such a request to the court, he is in the position of a supplicant. He is to be considered as a person who has brought certain facts to the notice of the Court so as to enable the Court to exercise its absolute discretion. When no person has a right to claim possession of custody of the property when the ingredients of S. 451 of the Code are applicable, such a person cannot have a right of revision against the order passed by the magistrate under S. 451 of the Code. It cannot be forgotten that the present Code provides a right of revision unlike the Old code i. e. , Code of Criminal Procedure, 1898. Even the period of limitation is prescribed in the Limitation Act for filing revision petitions of the nature under the code. Therefore, it will have to be held that the present peritioner has no locus standi to present this criminal revision petition. Even the period of limitation is prescribed in the Limitation Act for filing revision petitions of the nature under the code. Therefore, it will have to be held that the present peritioner has no locus standi to present this criminal revision petition. But, it can be said that though the present petitioner has no right to file this revision petition, the whole matter is brought to the notice of the Court because the records have been called for and the court has, in exercise of its revisional jurisdiction, the power to deal with it suo moto so that justice is meted out. Justice being meted out under the facts and circumstances of this case, is to find out whether, while exercising absolute discretion, the magistrate has taken the necessary precautions for the safety of the vehicle. I have already pointed out that all the necessary precautions have been taken. Sri C. S. Shanthamallappa, learned Advocate appearing on behalf of the petitioner, argued that the Magistrate has come to certain conclusions-which have been already narrated-in regard to respondent 2 having made out prima facie case of a better title or superior title as against his client who is a registered owner, and those conclusions were uncalled for. This contention of Sri Shanthamallappa is sound and has to be accepted. Therefore, though not for the reasons given by the Magistrate in his detailed lengthy order, the final order of custody or possession passed by the Magistrate has to be sustained, since he has properly exercised his absolute discretion in regard to safety of the vehicle and this Court does not lightly interfere with such discretion exercised by the subordinate Courts, that too while dealing with matters in revision. ( 6 ) AS the subject-matter involved is a truck and is naturally subject to certain deterioration even due to atmospheric conditions, I direct that the Magistrate, should pursue the matter with the concerned police, secure their report and dispose of the case expeditiously. In the result, this petition fails and is dismissed with the afore-mentioned observations. --- *** --- .