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2000 DIGILAW 525 (ORI)

DR. SIDHESWAR MISHRA v. STATE OF ORISSA

2000-11-16

A.S.NAIDU

body2000
A. S. NAIDU, J. ( 1 ) - Heard Mr. A. Ch. Swain, learned counsel for the petitioner and Mr. Sanjib Swain learned Additional Standing Counsel, for the State. ( 2 ) THE petition is filed under Section 401 read with Section 482 of the Code of Criminal Procedure, inter alia, challenging the order dated 2-8-2000 passed by the learned Judicial Magistrate. First Class, Nimapara, in G. R. Case No. 371 of 1997, rejecting the petition filed by the petitioner under Section 457 of the Code for release of a generator seized by police in course of investigation of the case. ( 3 ) BEREFT of unnecessary details the facts which give rise to this revision are as follows: It is alleged that on 7-6-1997 some hooligans armed with weapons invaded the farm-house of the petitioner and took away valuable belongings like, jewellery, television. V. C. R video-camera, generator (Enfield make) and many: other articles. The petitioner was also brutally assaulted by the accused persons. On receiving information, police reached the spot, rescued the petitioner who was taken to Konark Police Station and thereafter shifted to the S. C. B. Medical College Hospital for treatment. On the basis of the information, Konark P. S. Case No. 40 of 1997 was registered which corresponds to G. R. Case No. 371 of 1997. However, the police submitted final form recording No clue. On coming, to know about the said fact the petitioner filed a protest petition before the learned Judicial Magistrate, First Class, Nimapara, which was registered as I. C. C. Case No. 182 of 1998. The learned Magistrate after examining eye-witnesses and the complainant took cognizance of the offences punishable under sections 451/427/380/34 of the Indian Penal Code against the accused persons. In course of investigation, the police seized different materials by raiding the house of the accused persons. It further appears from the forwarding letter (copy of which is filed as Annexure-4) that on the night of 19/20-8-1999, the police on the basis of reliable information conducted raid in the house of Tahali Behera alias Panchi of village Tikena and recovered a portable Enfield Generator. In the report it is mentioned that on being questioned the accused confessed his guilt and admitted that he along with his associates committed theft of the generator from the farm house of the petitioner. In the report it is mentioned that on being questioned the accused confessed his guilt and admitted that he along with his associates committed theft of the generator from the farm house of the petitioner. The seizure list dated 26-8-1999 (copy of which is annexed as Annexure-3) reveals that the police also seized a money receipt revealing sale of the aforesaid generator by one Ananda Shankar Bhramarbar son of Baidya Bhramarbar Ray to the petitioner. ( 4 ) THE petitioner filed a petition under section 457 of the Code of Criminal Procedure before the learned trial court praying to release the generator in his favour. The learned trial court by order dated 2-8-2000 rejected the said petition on the ground, that the petitioner could not produce any paper showing his ownership over the same. The trial court though noted the fact that the money receipt relating to the seized generator was seized on 28-9-1999, but rejected the petition holding as follows: While disposing such a petition, it is the primary duty of the court to see the prima facie ownership of the petitioner and his entitlement to the possession thereof on the article. I think the petitioner failed to prove the same with proper document. Hence the prayer is The said order dated 2-8-2000 is impugned in the present case. Section 457 of the Code of Criminal Procedure reads as follows: 11457 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 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. The scope of section 457 of the Criminal, Procedure Code was discussed in the case of Prabhat Kumar Das v. Byoy Prasad Das, wherein it has been held as follows: Under the provisions of section 457. Criminal Procedure Code if the Magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient he can make an enquiry into the matter by giving opportunity to the claimants before passing of the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof (emphasis provided) ( 5 ) LAW is well settled that the duty of the Magistrate is to prima facie find out as to who is entitled to possession while dealing with a case under section 457 of the Code of Criminal Procedure and the question of title or ownership is not to be looked to. (See (1992) 5 O. C. R. 3642 ). ( 6 ) THE learned counsel appearing for the petitioner submits that there was enough material available before the Magistrate which leads to an irresistible conclusion that the petitioner is entitled to possession of the seized generator which is admittedly lying in Konark Police Station. It is stated that, apart from the fact that the accused from whose custody the generator was seized has confessed that he along with others committed theft of the generator from the farm house of the complainant, money receipt revealing that the generator was purchased by the petitioner was also seized and is available on record. It is stated that, apart from the fact that the accused from whose custody the generator was seized has confessed that he along with others committed theft of the generator from the farm house of the complainant, money receipt revealing that the generator was purchased by the petitioner was also seized and is available on record. The F. I R. lodged by the petitioner also reveals that the generator (Enfield make) was stolen from his farmhouse. A cumulative assessment of the aforesaid facts would lead to an irresistible conclusion that the petitioner alone is entitled to the possession of the generator. It is further submitted that in view of the aforesaid overwhelming material the Magistrate should not have refused the prayer of the petitioner merely on the ground that the petitioner could not produce any document to prove his owner ship. The learned Additional Standing Counsel, however, argued in support of the impugned order. ( 7 ) THE discussions made in the preceding paragraphs clearly reveal that the learned Magistrate acted contrary to the settled principle of law and lost sight of the fact that the money receipt which was seized and was available in the record of the case is a prima facie evidence in support of the ownership of the generator. Thus, it was not possible for the petitioner to produce any other document in support of his ownership. ( 8 ) BE that as it may, the documents available prima facie reveal that the petitioner is entitled to the possession of the generator. Admittedly, the generator which has been seized is lying in the police station and is likely to be damaged thereby causing heavy loss to the petitioner. Considering the submission made along with the undisputed facts which prima facie reveal that the petitioner is the owner of the generator and the same is lying exposed to the sun and rain in the police station, it is just and proper to set-aside the impugned order and direct the Magistrate to release the generator to the custody of the petitioner on his executing an indemnity bond of a sum of Rs. 5,000/- (rupees five thousand) with the following condition: (1) that the petitioner shall not make any alteration and shall not part with the generator till disposal of the case; (2) that he shall maintain the generator in proper condition and shall not transfer or otherwise dispose of the same; and (3) that the petitioner shall produce the seized generator as and when called upon to do so by the court during the trial of the case. With the aforesaid observations and directions the criminal revision is allowed. Revision allowed.