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Rajasthan High Court · body

2000 DIGILAW 34 (RAJ)

Manjulata Jugtawat v. State

2000-01-11

G.L.GUPTA

body2000
Honble GUPTA, J.–This misc. petition is directed against the orders dt. 24.8.96 and 24.10.96. By the first order the learned Special Judge A.C.D. Cases directed the Addl. S.P., A.C.D. Jodhpur to deliver the property to the competent person and if for certain articles he is not in a position to decide, he could make a report in the Court. By the second order dt. 24.10.96 the learned Special Judge directed the Addl. S.P. to obtain the articles from Manjulata and produce them in the Court. (2). The relevant facts of the case are these. Dr. Jagdish Jugtawat, husband of petitioner Manjulata, was the Medical Officer in a Government hospital. On 10.9.91 a raid was arranged and on search of his houses, including the house situate in Shastrinagar, Jodhpur, various articles were seized. The articles which were seized from the Shastrinagar house of Jagdish Jugtawat were allowed to be kept by Manjulata who was his wife. During investigation, Dr. Narendra (brother of Jagdish), Sidhkaran his father and Dr. Jagdish himself filed applications in the Court for delivering articles seized by the police to them. All these applications were rejected by the Special Judge on 4.1.92 holding that since the articles were not taken in custody by the police, order for their disposal could not be passed by the Court. That order was challenged by Dr. Narendra by filing Misc. Petition No. 14/92 which came to be decided on 14.5.92 by this Court. It was held that the articles, though not were taken in possession during the raid, were in the custody of the court and could be disposed of by the Special Court. (3). The police after investigation submitted a final report on 6/29.12.93. Manjulata filed objection to the acceptance of the final report. Rejecting her objections, the learned Special Judge accepted the final report on 1.8.94. While accepting the final report, the learned Special Judge ordered that the record and the articles be delivered to the concerned competent persons. After the order dt. 1.8.94, it seems, articles, not claimed by Manjulata, were disposed of by the police and they were handed over to six persons on their furnishing bonds. For the remaining articles the learned Special Judge proceeded to hold enquiry. Affidavits and counter affidavits were filed by the parties. (4). After the order dt. 1.8.94, it seems, articles, not claimed by Manjulata, were disposed of by the police and they were handed over to six persons on their furnishing bonds. For the remaining articles the learned Special Judge proceeded to hold enquiry. Affidavits and counter affidavits were filed by the parties. (4). On 22.9.95 the learned Special Judge, observing that after the acceptance of the F.R. on 1.8.94 and the order passed with regard to the property, nothing remained to be decided by the Court rejected the applications. (5). On its part the police proceeded to hold enquiry in respect of remaining articles. However, Dr. Jagdish and others filed an application before the learned Special Judge on 15.6.96 complaining that the police did not comply with the order of the Court and did not return their property. The Addl. S.P. filed his reply on 2.8.96. Manjulata petitioner also filed an application stating that the articles belonged to her. (6). After hearing the learned counsel for the parties, the learned Special Judge passed an order on 24.10.96 calling the explanation of the police and also directing the police to collect the articles from Manjulata. (7). Mr. Mehta, learned counsel for the petitioner contended that the property seized in the case were not produced during enquiry or trial, and therefore, the property could be disposed of u/s. 457 Cr. P.C. His submission was that it is the duty of the Court to decide the respective claims of the claimants and dispose of the property. Pointing out that this Court has already held in its order dt. 14.5.92 that the property, though not seized by the police would be treated to have been seized and their disposal can be ordered by the Court, contended that the learned Special Judge had erred in rejecting the applications of the claimants on 22.9.95. In this connection he also pointed out that the order dt. 1.8.94 was vague and it did not indicate as to how the property was to be disposed of. He submitted that the Special Judge be directed to decide the claims of the various parties in exercise of power u/s. 457 Cr. P.C. (8). Mr. Shreemali, learned counsel for the respondents, on the other hand, contended that the order dt. 22.9.95 was not challenged by the petitioner, and therefore, it has attained the finality. He submitted that the Special Judge be directed to decide the claims of the various parties in exercise of power u/s. 457 Cr. P.C. (8). Mr. Shreemali, learned counsel for the respondents, on the other hand, contended that the order dt. 22.9.95 was not challenged by the petitioner, and therefore, it has attained the finality. He submitted that the learned Special Judge has not erred when he directed the recovery of the property from the petitioner as the claims could be disposed of only after the property was produced in the Court. (9). I have considered the above submissions. Section 457 Cr. P.C. reads as follows:- ``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. (2) 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 the person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. (10). In the instant case, it is admitted position that the property was not produced before a Criminal Court during an enquiry or trial. The police had given final report, and therefore, it cannot be said that there was trial of the case and no order could be passed u/s. 452 Cr. P.C. The disposal of the property could be ordered only u/s. 457 Cr. P.C. Under sub-section (2) of Sec. 457 Cr. P.C. the property can be delivered by the Magistrate to the person who establishes his claim. Of course under sub-sec. (2) it has been provided that the claims would be established within six months from the date of proclamation issued by the Magistrate. P.C. Under sub-section (2) of Sec. 457 Cr. P.C. the property can be delivered by the Magistrate to the person who establishes his claim. Of course under sub-sec. (2) it has been provided that the claims would be established within six months from the date of proclamation issued by the Magistrate. In the instant case, no proclamation could be issued because it was not a case where the claimants were un-known persons. The parties had already filed their claims. Therefore, the court was empowered to dispose of the property u/S. 457 (2) Cr. P.C. (11). Under Sec. 457, the power to dispose of the property has been conferred on the Magistrate and the Special Judge was not the Magistrate but that would not deter the Special Judge to dispose of the property u/S. 457 Cr.P.C. The word `Magistrate in the S. 457 Cr.P.C. means the P.O. of the court of original jurisdiction. The Special Judge is the Court of original jurisdiction where the challan is directly filed. He does not get jurisdiction by commitment of a case. Therefore, in my opinion, he enjoys all the powers of a Magistrate including the power to dispose of the property u/S. 457 Cr.P.C. (12). Now the question that needs consideration is whether the Special Judge had already disposed of the property vide order dt. 1.8.94 while accepting the F.R. A reading of the order dt. 1.8.94 shows that it was not decided by the Special Judge as to whom which property was to be given. The order was that the property be returned to the concerned competent person. It is not understood as to in what context word `competent was used. In any case, it may be understood that the learned Special Judge wanted to say that the property to returned to the concerned persons. Since the various persons had already filed their claims for the property before the Special Judge in 1993, and the learned Special Judge himself was seized of the matter, it was he only, who could decide as to whom should be given and which property. As such, the order directing the property to be delivered to the concerned person did not mean anything. It cannot be accepted that the Special Judge had already passed the orders with regard to the disposal of the property. (13). As such, the order directing the property to be delivered to the concerned person did not mean anything. It cannot be accepted that the Special Judge had already passed the orders with regard to the disposal of the property. (13). It is relevant to state that the learned Special Judge himself continued to investigate the claim of the claimants with regard to the property and the applications after 1.8.94. Replies and affidavits had been filed by the parties. It is only on 22.9.95 that the learned Special Judge abruptly held that the matter stood decided by the order dt. 1.8.94 which, as held above, is not correct. (14). Since there was no definite directions of the Court with regard to the disposal of the property on 1.8.94, the orders dt. 22.9.95, 24.8.96 and 24.10.96 are misconceived. As a matter of fact, the learned Special Judge was required to investigate the claim and decide as to which party was entitled to the various articles seized by the police during the raid. To secure the ends of justice, the impugned orders and the order dt. 22.9.95, though not called in question, deserve to be set aside. (15). Consequently, the petition succeeds. The orders dt. 22.9.95, 24.8.96 and 24.10.96 are hereby set aside. The learned Special Judge is directed to decide the claims of the parties and pass a clear order for the disposal of the learned Special Judge thinks necessary that a particular article should be produced in the Court for disposal, he is free to pass an order in that regard. Parties are directed to appear before the Special Judge on 20.1.2000.