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1982 DIGILAW 473 (RAJ)

Brijlal v. The State of Rajasthan

1982-11-30

KANTA BHATNAGAR

body1982
JUDGMENT 1. 1. Petitioner Brijlal was con-victed and sentenced for the offence under Section 307 Indian Penal Code by the Assist-ant Sessions Judge, Hanumangarh on 17-9-1973 for the charge of causing in-juries with a gun to complainant Dayaram. In appeal the conviction for that offence was maintained but the sentence of 2 years' R.I. was reduced to two years' R.I. The petitioner then preferred revision petition in this Court. By the judgment dated 22-12-1981, this Court partly allowed the revision petition and altered the conviction from Section 307 Indian Penal Code to one under Section 324 Indian Penal Code and sentenced the petitioner to the period he had remained in custody, along with sentence of fine. 2. During the course of investigation, a gun was recovered from the petitioner and the same was ordered to be confiscated by the trial Court at the conclusion of the trial. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of Criminal Procedure Code challenging the order of confiscation of the gun recovered from him during the course of investigation. Notice at the admission stage was issued to the State. Dr. S.S. Bhandawat, Public Prosecutor, has put in appearance on behalf of the State. 3. I heard Mr. D.K. Purohit, learned counsel for the petitioner and Dr. S.S. Bhandawat, learned Public Prosecutor for the State. 4. The law point agitated in this peti-tion under Section 482 of Criminal Procedure Code is, whether an order under Section 452 of Criminal Procedure Code could be passed by the trial Court regarding the gun, the weapon of offence. The learned counsel for the petitioner strenuously contended that the special enactment i.e. the Arms Act, 1959, overrides the general law i.e. Criminal Procedure Code and therefore, the learn-ed Magistrate should not have taken resort to the provision of Section 452 of Criminal Procedure Code for the disposal of the gun. According to Mr. Purohit, the petitioner was holding a valid licence for the gun in question and therefore, even if used for the commission of the crime, it should not have been confiscated by the Court because it amounts to forfeiture of property which is not permissible under the Penal Code. Referring to Section 53 of the Penal Code, Mr. Purohit contended that forfeiture of property is now permitted only for certain offences. 5. Referring to Section 53 of the Penal Code, Mr. Purohit contended that forfeiture of property is now permitted only for certain offences. 5. The learned counsel next argued that Sections 4 and 5 of Criminal Procedure Code exclude the scope of Criminal Procedure Code for the cases under special Acts and fire arm being the subject-matter of the Indian Arms Act, no order under Section 452 of Criminal Procedure Code could have been passed. Mr. Purohit referred to certain authorities to substantiate his contention which I would just discuss. 6. The learned Public Prosecutor, on the other hand, placed reliance on the provisions of Section 452 of Criminal Procedure Code and submitted that, as the gun was produced in the case and proved to be the weapon of offence, the Court was justified in passing an order under Sec-tion 452 of the Criminal Procedure Code. 7. There is no dispute on the point that the gun in question was proved to be the weapon of offence in the criminal case in which the petitioner was convict-ed. Section 53 provides forfeiture of property as one of the punishments, but it is not in all cases that the property can be forfeited. The forfeiture of the property is retained as punishment only for a few offences falling under Sections 126, 127 and 169 of the Penal Code. In the present case confiscation of the gun cannot be said to be forfeiture of property as a penalty imposed upon the petitioner. It has been confiscated be-cause of it being the weapon of offence. 8. The point emerging for determination is as to whether by virtue of the provisions of Sections 4(2) and 5 of the Criminal Procedure Code the provisions of the Special Act, i.e. the Arms Act were attracted and there was a bar for applying the provisions of Section 452 of Criminal Procedure Code. 9. The prosecution of the petitioner was for the penal offence and not under the Arms Act. The confiscation was not on account of any contravention of any provision of the Arms Act or any offence committed under that Act. 10. 9. The prosecution of the petitioner was for the penal offence and not under the Arms Act. The confiscation was not on account of any contravention of any provision of the Arms Act or any offence committed under that Act. 10. Section 4(2) of Criminal Procedure Code reads as under:- "All offences under any other laws shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or other-wise dealing with such offences." Section 5 of the Criminal Procedure Code is a saving provision and reads as under:- "Nothing contained in this Code, shall, in the absence of a specific provision to the contrary affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force". 11. The various authorities referred to by the learned counsel in the case do not help him because they relate to cases under special enactments and not under the Penal Code. 12. In the case of Suleman Issa v. State of Bombay 1954 Cri LJ 881 : ( AIR 1954 SC 312 ) , the appellant was prosecuted for an offence under Sec-tion 61-E, Bombay District Police Act read with Section 10 of the Penal Code and was convicted and sentenced. The gold recovered in the case was directed to be confiscated under Section 517 of Criminal Procedure Code (Old). The Sessions Judge did not agree with the learned Magistrate that there was reasonable ground for a reasonable belief that the gold in question was either stolen or was fraudulently obtained. The High Court in appeal dis-agreed with the Sessions Judge and con-curred with the finding of the Magistrate. When the matter reached Supreme Court, the appellant's conviction was not the matter for consideration, rather the sole question was as to whether Sec-tion 517 of the Criminal Procedure Code, (Old) had application in the case or the Court had jurisdiction to pass the order of confiscation of gold. Their Lordships were of the opinion that the property was not one regarding which any offence appeared to have been committed or which had been used for the commis-sion of any offence. Their Lordships were of the opinion that the property was not one regarding which any offence appeared to have been committed or which had been used for the commis-sion of any offence. In view of that finding the order of confiscation was set aside and the gold seized was ordered to be restored to the appellant. 13. The case of the State of West Bengal v. S.K. Ghosh AIR 1963 Supreme Court 255 : (1963 (1) Cri LJ 252) related to the forfeiture of the property of the accused under Section 13(3) of the Criminal Law Amendment Ordinance. The forfeiture under Section 13(3) of that Ordinance was not considered to be penal. It was held that Article 20(1) of the Constitution was not attracted. Mr. Purohit has tried to take help from the observations in the case that forfeiture provided under Section 53 is undoubtedly a penalty or punishment within the meaning of Article 20(1) and, submitted that the order of forfeiture can be passed by the Court trying the offence only when there is provision for forfeiture in the relevant section in the Penal Code. 14. In the present case the confiscation of the gun in question is not by way of penalty imposed, rather it is passed at the conclusion of the trial for the disposal of the property in question. 15. Another case referred to by the learned counsel for the petitioner is State v. Abdul Rasheed AIR 1967 Mysore 231 ; (1967 Cri LJ 1661) . The question before the Court was the interpretation of Section 5(2) of Criminal Procedure Code The decision related to a reference in two revision petitions by the Sessions Court on the question as to whether the provisions of Criminal Procedure Code were applicable for the disposal of the property under the Essential Commodities Act and Defence of India Rules. The Magistrate had allowed the application by the Sub-Inspector of the Police and permitted him to produce the stock in question before the Collector. The ap-plication of the accused for handing over the property i.e. the Rice bags to him was rejected. The Magistrate had allowed the application by the Sub-Inspector of the Police and permitted him to produce the stock in question before the Collector. The ap-plication of the accused for handing over the property i.e. the Rice bags to him was rejected. The Sessions Judge, was of the opinion that the Magistrate by his order abdicated his judicial powers given to the Court under the Code and the opinion of the Magistrate that the provisions contained in Section 516A of the Criminal Procedure Code are not applicable to the case has neither any merit nor supported by any judicial decision or any provision of law. He, therefore, allowed the revision petition and made a reference under Section 438 of Criminal Procedure Code (Old) to the High Court for setting aside the order of the Magistrate under revision. In view of the special provision of the special enactments namely, the Essential Commodities Act and the Defence of India Rules, his Lordship was pleased to propound the principle that the legislature intended to give power of forfeiture by an express provision in a statute to the Collector, whether or not prosecution is instituted, and therefore, the general provisions relating to the disposal of the property under the Criminal Procedure Code cannot be exercised by the Criminal Courts in the matters of confiscation of foodgrains etc. It is pertinent to note that the argument, that under the relevant orders if any person contravenes any provision of the Orders, then, without prejudice to any other punishment to which he is liable, any Court trying such contravention may direct that any stock of food-grains together with any package and covering thereof, in respect of which the Court is satisfied that the Order has been contravened, shall be forfeited to the State Government, found favour with the Court and it was observed that Clause (4) of Declaration of Stocks Order no doubt empowers the Court to forfeit the foodgrains etc. but this could be done only it the Magistrate is satisfied that the order has been contravened and this power cannot be exercised before the institution of the prosecution against the accused. 16. Mr. Purohit also placed reliance on the principle enunciated in the case of Patel Hargoven Nathubhai v. State of Gujarat AIR 1968 Gujarat 250 : (1968 Cri LJ 1275) . 16. Mr. Purohit also placed reliance on the principle enunciated in the case of Patel Hargoven Nathubhai v. State of Gujarat AIR 1968 Gujarat 250 : (1968 Cri LJ 1275) . The case related to the interpretation of the term "Property" in Clause (b) of Section 7(1) of the Essential Commodities Act, 1955. The question was whether the utensils containing the food-stuffs by which the provisions of Gujarat Guest Control Order, 1955 were contravened, could be confiscated under the provisions of Section 517(1) of Criminal Procedure Code His Lord-ship was pleased to draw a distinction between the law relating to confiscation enumerated in Section 517(1) of Criminal Procedure Code and Section 7(1)(b) of the Essential Commodities Act and laid emphasis on the application of the special provisions of the Special Act in the following terms: "It is no doubt true that the Court would be justified under Section 517(1) of the Code to pass any such order of confiscation as the property such as the containers or coverings etc. can be covered in the second part "or which has been used for the commission of any of-fence". But it is well settled rule of law that when a specific provision is made under the Special Act as we have Sec-tion 7(1)(b) in the Essential Commodities Act, 1955, that would prevail over the general provisions contained in the Criminal Procedure Code They cannot be used to supple-ment or add something to the provision in the special Act. In the Special Act, the second part as we find in Section 517(1) of the Code viz. "or which has been used for the commission of the offence" is not there". 17. The question for determination in the case in hand is, whether in a case where prosecution was exclusively for an offence under the Penal Code, the confiscation of the weapon of offence under Section 452 of Criminal Procedure Code can be said to be illegal. Mr. Purohit's contention is that if there would have been charge also under the Arms Act. Section 32 of that Act could have been pressed into service by the Court for confiscating the gun, but there being no prosecution under the Arms Act, there was no authority with the Court to order for confiscation of the gun. I feel myself unable to agree with this contention. Section 32 of that Act could have been pressed into service by the Court for confiscating the gun, but there being no prosecution under the Arms Act, there was no authority with the Court to order for confiscation of the gun. I feel myself unable to agree with this contention. The learned Magistrate, has passed the order under Section 452 of Criminal Procedure Code in connection with the weapon used, for the commission of the of-fence. 18. Section 452 of Criminal Procedure Code reads as under:- "When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or other-wise, 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". 19. The prosecution being under the Penal Code and not under any Special Act, Sections 4(2) and 5 of the Criminal Procedure Code are not attracted. Simply because the weapon of offence happens to be fire arm it will not come out of the ambit of the term "property" mentioned in Section 452 of the Criminal Procedure Code The Court is authorised to dispose of the weapon of offence under this section whatever be its nature. The gun would fall in the category as lathi, axe or any other weapon used, for the commission of the offence under the Penal Code. I am therefore, inclined to hold that the trial of the petitioner not being under any special enactment the Court cannot be said to he in error in pressing into service the provisions of Section 452, Criminal Procedure Code. 20. In this view of the matter, there is no illegality in the order for confiscation of the gun. 21. The petition under Section 482 of Criminal Procedure Code is, therefore, dismissed.Petition dismissed. *******