CHANDRAKANT KISHANCHAND THAKWANI v. STATE — 1992 DIGILAW 166 (GUJ)

PARIKH, J. ( 1 ) RULE. Service of Rule waived by Mr. M. A. Bukhara, learned a. P. P. for the State. ( 2 ) THE petitioner herein, who happens to be one of the accused in A. C. B. Entry No. 1 of 1991 (Janva-jog), moved an application for return of rs. 42,314/- seized from him, before the learned Metropolitan Magistrate, Court no. 17, Ahmedabad, on 20/01/1992. The learned Magistrate passed the following order on 20/01/1992 : asstt. Director of A. C. B. Ahmedabad to report on following point and to remain present with all the papers for being of the application on 27-1-1992 : (1) From whom the muddamal is seized? (2) Whether any offence is detected in regard of the muddamal ? If yes. What is the offence ? (3) Whether the muddamal be returned to the applicant ? comply without fail. Issue necessary to the Asstt. Director and learned A. P. P. Fixed for hearing on 27-1-1992. " it appears that thereafter the parties were heard on the question of return of muddamal currency notes in the sum of Rs. 42,314. 00 After hearing, the learned Metropolitan Magistrate, Court No. 2, passed order dated 22-4-1992 rejecting the petitioners application. It was submitted on behalf of the petitioner that the petitioner was working on behalf of some institution in the District of Mehsana and the amount was received by the petitioner by way of an assistance or by way of donation for using the same for the purpose of a seminar to be conducted for that institution. It was submitted on behalf of the petitioner that no offence was committed by the petitioner and that no offence was made out against him. It was, therefore, prayed on behalf of the petitioner that upon furnishing of the bond for the amount of the currency notes of Rs. 42,314. 00, the muddamal currency notes should be returned to the petitioner. ( 3 ) AS against this, it was submitted on behalf of the rosecuting agency that the investigation was pending. Some statements were yet to be recorded. One chandrakant was avoiding the process for the purpose of giving his statement, whereas one Kesharisinh and Mangalsinh were not available for the purpose of recording their statements during the course of the investigation. Some statements were yet to be recorded. One chandrakant was avoiding the process for the purpose of giving his statement, whereas one Kesharisinh and Mangalsinh were not available for the purpose of recording their statements during the course of the investigation. It appeared from the material available till then that the accused persons had attempted to commit offence of cheating. It was further submitted on behalf of the prosecuting agency that some offence of a serious nature was likely to be disclosed from the investigation which was in progress and at the stage of investigation the muddamal amount of Rs. 42,314. 00 should not be handed over to the petitioner. ( 4 ) IT has been observed by the learned Magistrate that the muddamal currency notes in the sum of Rs. 42,314/- came to be seized under Sec. 41 (l) (d) of the Code of Criminal Procedure, 1973 (for short the Code ). The learned magistrate had perused the papers and the report and concluded that since the investigation was pending and statements of other witnesses were yet to be recorded, it was not just and proper to return the muddamal notes to the petitioner. He, therefore, rejected the petitioners application by the impugned order. It is this order which has been complained of in this petition under sec. 482 of the Code. ( 5 ) THE main submission of Mr. Kella, learned Advocate for the petitioner is that the learned Magistrate could not have withheld the currency notes and should have directed the return thereof to the petitioner. The pendency of the investigation, as per the submission of Mr. Kella, would not provide a ground for rejecting the application of the petitioner. ( 6 ) IT is further the submission of Mr. Kella that the investigation papers at that stage disclosed only an offence of attempting to cheat. Mr. Kella further submitted that only factual data which was available at that stage was that the amount was seized on the allegation that it was received for the purpose of or on the pretext of giving the amount for gaining Government service through Gujarat Public Service Commission for certain persons. In the submission of Mr. Kella, the report of the investigating officer was vague and the circumstances did not disclose commission of offence against the petitioner. ( 7 ) IN order to appreciate the submissions of Mr. In the submission of Mr. Kella, the report of the investigating officer was vague and the circumstances did not disclose commission of offence against the petitioner. ( 7 ) IN order to appreciate the submissions of Mr. Kella, it would be necessary to set out the provision under which the petitioner sought for the return of the muddamal currency notes. Section 457 of the Code is the provision on which reliance is placed. It reads :"457. Procedure by Police upon seizure of property : (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. (?) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, 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. " ( 8 ) ON a plain reading of the aforesaid provision, it clearly appears that the discretion is vested in the Magistrate for making such order as he thinks fit respecting the disposal of such property or 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. The provision does not set out any proposition of law that at an interim stage the Magistrate has to direct return of the muddamal articles to a known person. If the Magistrate is of the opinion that the muddamal is required to be detained with the investigating officer or in the Court for future use at the time and for the purpose of inquiry or trial, it is obvious that he has not to release the muddamal articles. In this connection, attention of Mr. If the Magistrate is of the opinion that the muddamal is required to be detained with the investigating officer or in the Court for future use at the time and for the purpose of inquiry or trial, it is obvious that he has not to release the muddamal articles. In this connection, attention of Mr. Kella was drawn to a decision of the Supreme Court in the case of Ram Prakash Sharma v. State of haryana, reported in AIR 1978 SC 1282 . In that case police recovered a considerable sum of money from the appellant and the money is stated to have been seized in connection with an offence registered against an accused person one Mr. Bansilal. Whether the appellant himself was to be a witness or an accused was not possible to be stated at that point of time according to the submission made on behalf of the State. In that context considering the ambit of Sec. 457 of the Code, the Supreme Court observed as under :however, the fact that the Court has power to dispose of property seized by the police but not yet produced before the Court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The Court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the Courts below that the Special Judge had no power to release the seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said propeity. That has to be decided on its own merits in each case and the discretion of the Court has to be exercised after due consideration of the interests of justice. including the prospective necessity of the production of these seized articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return. including the prospective necessity of the production of these seized articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return. "in the present case it may be stated that the further investigation is directed bearing in mind the various provisions contained in the Prevention of corruption Act, 1988 including Sec. 8, which the learned A. P. P. for the State might be in a position to press into service at an appropriate stage. Section 8 reads as under :"8. Taking gratification in order, by corrupt or illegal means, to influence public servant. Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any pergon, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the legislature of any State or with any local authority. Corporation or Government Company referred to in clause (c) of Sec. 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. " ( 9 ) IT would not be necessary to enter into the merits of the case qua the commission of one or the other offence, which is under investigation. Facts as have been disclosed by even Mr. Kella clearly indicate a necessity of carrying out close and serious investigation thereof. ( 10 ) IN support of his various submissions Mr. Kella placed reliance upon the following authorities :a. S. S. Ahmed Sahib v. Commissioner of Police Madras and Anr. , AIR 1970 Madras 220. Facts as have been disclosed by even Mr. Kella clearly indicate a necessity of carrying out close and serious investigation thereof. ( 10 ) IN support of his various submissions Mr. Kella placed reliance upon the following authorities :a. S. S. Ahmed Sahib v. Commissioner of Police Madras and Anr. , AIR 1970 Madras 220. That was a case where the Commissioner of Police ordered the return of the conch to the second respondent to that case after having considered the facts as disclosed in the course of investigation, though the conch had been seized from Sultan Ibrahim to whom the petitioner was alleged to have entrusted the same In the context of such facts it was held by the learned single Judge of the Madras High Court that what is required is not the proof of the offence in respect of the property seized but whether the property was seized in respect of an alleged offence or under suspicious circumstances. Even in this case it was held that the Court had absolute discretion to pass an order as thought fit respecting the disposal of such property. In any case the decision shall have no application to the present case on facts. KHURAIJAM Jugeswar Singh v. Smt. Chanabam Ongbi Tomu Devi, reported in 1968 Cri. LJ 191. In this case it was held that once the Magistrate ascertained the person, from whose possession the property was seized and whose possession was not unlawful, then the Magistrate must hold him to be entitled to the possession of the same. The scops of the provision contained in Sec, 523 of the Criminal Procedure Code, 1898 was examined in the context of the question whether the Magistrate was authorised to decide which party was the rightful owner of the property. Even this decision shall not have any application to the question which is required to be considered here in this case. MOHD Ismail Noor Mohammad v. Fehmada Nahid and Ors. , 1966 cri. LJ 1094. Even this decision shall not have any application to the question which is required to be considered here in this case. MOHD Ismail Noor Mohammad v. Fehmada Nahid and Ors. , 1966 cri. LJ 1094. While distinguishing the provisions of Sec. 517 and Sec. 523 of the criminal Procedure Code, 1898, the learned single Judge of Madhya Pradesh high Court (Indore Bench) held that what was required was that the police must have seized the property under Sec. 51 of the Code or the property must be alleged or suspected to have been stolen or found, under circumstances which might create suspicion of the commission of an offence. When such property was produced before a Magistrate, he was empowered to order its disposal to the person entitled) to the possession thereof, held the learned Judge. This decision also shall not have any application to the present case. (4) Koijam Tombi Singh v. Chongtham Pisak Singh, AIR 1952 Manipur 6. The head note indicates the guidelines as to how discretion is to be exercised by the Magistrate under Sec. 523 of the Criminal Procedure Code, 1898. It is no doubt true that if the police report is vague and unsatisfactory, it might not be depended upon while dealing with Sec. 523 of Criminal Procedure Code. Following observations appearing in the head note would be important to be noticed for seeing that apparently there is an altogether different question under consideration : "although a Magistrate can make an order without independent enquiry and on Police report or papers before him, if the report by the Police is vague and unsatisfactory it ought not to be depended upon. If the title of the seized property is doubtful, it should be returned to the person from whom it was seized. Similarly if the property alleged to be stolen is not proved to belong to the complainant, it should be restored to the person who produced it and the complainant should be referred to Civil Court. Where the Court orders restitution of certain property, but the property has been disposed of, the Court can order payment of equivalent value. If the Police seized property from person who is not shown to have committed offence the Magistrate should hold such person as being entitled to the property. The remedy of the other party claiming it is by way of civil suit. If the Police seized property from person who is not shown to have committed offence the Magistrate should hold such person as being entitled to the property. The remedy of the other party claiming it is by way of civil suit. The order under the section does not conclude the right of any person. The real owner may proceed in the Civil Court against the holder of articles for damages. " ( 11 ) ON a plain reading of the provision contained in Sec. 457, it cannot be said that the Magistrate has no power to allow the seized property to remain in the custody of the Police Officer pending investigation. As a matter of fact, if he is of the opinion that the property is required to be retained for the purpose of investigation and for future use at the time of the inquiry or trial, the property cannot be released as can be seen from the decision in the case of Ram Prakash Sharma v. State of Haryana (supra ). ( 12 ) IN the above view of the matter, it cannot be said that the learned magistrate committed any illegality in passing the order of rejecting petitioners application. ( 13 ) IT may be observed that the investigation is still in progress and it is likely to be completed, as submitted by Mr. M. A. Bukhari, learned a. P. P. for the State, within a period of six months. In his submission, some persons from Gujarat Public Service Commission have got to be examined as to the facts which have been so far disclosed in the investigation. In that view of the matter, I find that there is no substance in the present petition. Following order is, therefore, passed. ( 14 ) THE petition is dismissed. Rule is discharged. .