Amar Singh v. State Of U. P. — 1985 DIGILAW 1056 (ALL)

JUDGMENT N.N. Sharma, J. 1. This revision is directed against the order dated 6-6-1985 passed by Sri J. S. P. Singh, learned IVth Additional Sessions Judge of Mathura, who reversed the order of Sri S. A. Samdhani, Judicial Magistrate II, Mathura, dated 22-10-1984 recorded under section 451 of the Code of Criminal Procedure. 2. It appears that opposite party no. 2 Mohan Lal lodged FIR at Police Station Nau heel on 12-11-1983 at 3.10 P. M. in the night in between 31st October and 1st November, 1983, that his Buggi (cart) and he buffalo were stolen. One Ranvir was nominated in that report. It was on 24-8-1984 that the Buggi and he buffalo in dispute were recovered from the possession of Amar Singh revisionist and given in custody of Mohan Lal. 3. Amar Singh revisionist applied on 16-10-'984 for release of the said property. Learned Magistrate ordered the release of the property in favour of revisionist on 22-10-1984. It appears from the perusal of the order that at that time Mohan Lal was not heard by learned Magistrate, who was dissatisfied with the conduct of the police. 4. Aggrieved by that order Mohan Lal preferred criminal revision no. 44 of 1985, which was allowed by the impugned order on 6-6-1985. It appears that on 14-12-1984 a charge sheet had also been submitted by the Police against the revisionist under sections 379/4.1 of Indian Penal Code. 5. Aggrieved by this decision, this revision was filed in this Court. 6. I have heard learned advocates for parties. On behalf of revisionist Sri K. C. Saxena, learned advocate for revisionist argued that the order drawn by the learned Magistrate was an interlocutory order and was not reusable specially at the instance of the complainant when it was a Police case. In this connection reliance was placed upon Kalpanath Singh v. Sheo Nath ai, 19/9 ACrR 311. It appears that in that case an interlocutory order was made under section 451 of the Code of Criminal Procedure, which was held as unrevisable. Nathu Lal v. State, 1976 CrLJ 358 relied upon by learned advocate for revisionist, was about an order made by Magistrate under section 451 of the Code of Criminal Procedure, refusing to release the property seized under section 13 of the Public Gambling Act, 1867. Such an order was held as interlocutory and not revisable. Nathu Lal v. State, 1976 CrLJ 358 relied upon by learned advocate for revisionist, was about an order made by Magistrate under section 451 of the Code of Criminal Procedure, refusing to release the property seized under section 13 of the Public Gambling Act, 1867. Such an order was held as interlocutory and not revisable. The next contention was that there was nothing in sections 451, 452 and 457 of the Code of Criminal Procedure, which may prevent the property being given in the custody of the accused during pendency of the case or even pending the investigation as was pointed out in Summary of Cases, 1980, ACC page 11, when the Magistrate found that the Buggi was recovered from the possession of accused, who also filed photostat copy from an authorised dealer about the sale of the same to the accused prior to the occurrence. Such order of the Magistrate was unassailable. 7. It was also argued that a finding of fact recorded by learned Magistrate in exercise of his discretionary powers was not to be lightly disturbed with specially at the instance of a private party as was pointed out in Thakur Ram v. State of Bihar, AIR 1968 SC 911. It was not a case under sections 451, 452 and 457 of the Code of Criminal Procedure. 8. Next reliance was placed upon Ram Lal Hazarimal v. Hiralal Ramlal, AIR 1953 Madhya Bharat 241, which observed that after property is seized by the Police, orders for its final disposal can only be passed by the Court and the Police are expected to hold the property subject to the orders of the Magistrate. Therefore, if the property is with the Police the Magistrate alone has got jurisdiction to pass orders, I have carefully considered all those contentions put forward by learned advocate for revisionist. A mere look at sections 451, 452 and 457 of the Code of Criminal Procedure, 1974, shall go to disclose that order for custody can be made by a Court during enquiry or trial under section 451 of the Code of Criminal Procedure. Section 452 deals with the order for disposal of the property at the conclusion of the trial. In the instant case the order was drawn by the learned Magistrate when the matter was in the first stage of criminal proceeding i. e. investigation. Section 452 deals with the order for disposal of the property at the conclusion of the trial. In the instant case the order was drawn by the learned Magistrate when the matter was in the first stage of criminal proceeding i. e. investigation. It was neither an enquiry nor a trial, so this order could not fall under section 451 of the Code of Criminal Procedure as was wrongly observed by learned Magistrate. This order was fully covered by section 457 of the Code of Criminal Procedure, and could be passed thereunder as was pointed out by Hon'ble H. N. Kapoor, J. in 1980 ACC Summary of Cases (Supra). 9. It was not an order refusing the delivery of property, but an order to deliver the property recorded by the learned Magistrate, such order cannot be regarded as interlocutory and was clearly revisable vide Radha Prasad Goala v. Manir Mian 1980 CrLJ N. O. C. (6) Gouhati page 3. A similar view was held in A. R. Singh v. B. B. Singh, 69 CWN 664, which was under old Code (Act V of 1898), the corresponding provision of section 457 of the present Code of Criminal Procedure was section 523 of the old Code. 10. It appears from a perusal of the record that learned Magistrate recorded the order without hearing the informant, who had a right to be heard when he had lodged a report, under section 154 sub clause (ii) of the Code of Criminal Procedure as was held in Bhagwant Singh v. Commissioner of Police AIR 1985 SC 1285 = 1986 ACrR 26. On behalf of opposite party it was 1 successfully argued before me that delivery of such property to the accused before submission of final report or conclusion of the trial could hamper the prosecution as accused was free to tamper with the same in any manner he liked. The informant possessed documents of title about Buggi and he buffalo and under such circumstances, it was very risky to hand over the property to the accused without hearing the informant at all and conducting any enquiry before passing the order of delivery of property. The informant possessed documents of title about Buggi and he buffalo and under such circumstances, it was very risky to hand over the property to the accused without hearing the informant at all and conducting any enquiry before passing the order of delivery of property. I respectfully follow the view laid in Suleman v. Emperor, AIR 1942 Sindh 89, The Magistrate was not bound to give the property to the accused merely because he was in possession over the alleged stolen property at the time of its seizure as was held in C. Haribandhu, AIR 1948 Patna 180. The Magistrate could conduct an enquiry to ascertain the person, who was entitled to the property vide Lakshman Govind, 26 ILR Bombay 552 and Joti, 8 Bombay 338 and also in re K. Chinnavadu, AIR 1942 Madras 726. IT is correct that the Magistrate has no power to decide the question of title and his order may not be binding on the Civil Court, but a proper enquiry by the Magistrate was desirable. That error had been corrected by the revising Court. On a careful scrutiny of the aforesaid facts evidence and circumstances of the case I do not find anything illegal or improper in the impugned order which must stand. 11. In the result, revision is dismissed. Interim orders dated 6-9-1985 and 9-10-85 are vacated herewith. Revision dismissed.