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2003 DIGILAW 1370 (AP)

Kilaparthi Suri Appa Rao v. State Of A. P.

2003-11-06

C.Y.SOMAYAJULU

body2003
C. Y. SOMAYAJULU, J. ( 1 ) ALLEGING that when he was patrolling the town along with P. CNos. 1268 and 1137 and reached near Dronamraju Satyanarayana auditorium at Devarapalli, having found an auto driver moving in suspicious circumstances he stopped the auto and found an engine being transported therein and enquired about the said engine from the driver and that the auto driver informed him that a person, whom he does not know, having given him Rs. 200/- (Rupees two hundred only) wanted him to transport that engine to Dronamraju Satyanarayana auditorium at Devarapalli and unload it there, and that he would come and collect it later, he asked the driver to show documents relating to the said engine but the auto driver failed to show any documents of title relating to the engine being transported by him in the auto, he seized the said engine, the Assistant sub-Inspector of Police, Devarapalli Police station, prepared a panchanama and registered a case in crime No. 31/2003 and sent a copy of the FIR to the Mandal Executive magistrate, Devarapalli. This petition is filed to quash the said FIR. ( 2 ) THE contention of the learned counsel for the petitioner is that the petitioner who happens to be the Upa Sarpanch of the Gram panchayat is the owner of the seized engine and had sent it for repairs to Cheduvada and was taking it back from Cheduvada, when the Assistant Sub-Inspector of Police, devarapalli Police Station, illegally and unauthorizedly seized the same only with a view to harass and inconvenience the petitioner due to the disputes between the petitioner and the police with regard to the construction of police station in the site belonging to the gram panchayat, and since section 102 Cr. P. C. does not contemplate an fir being registered and since transporting an old engine from one place to another without documents of title is not an offence, the FIR is liable to be quashed and the engine be directed to be returned to the petitioner. Heard the learned Public Prosecutor. ( 3 ) SECTION 102 Cr. P. C. inter alia authorizes a police officer to seize any property which is suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Heard the learned Public Prosecutor. ( 3 ) SECTION 102 Cr. P. C. inter alia authorizes a police officer to seize any property which is suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. It mandates the police officer so seizing the property, if he is a subordinate to the Officer in charge of the Police Station, sending a report to the Officer in charge of the police station about such seizure, and further mandates the seizing officer sending a report of such seizure to the magistrate having jurisdiction. ( 4 ) AS per Section3 (l) (a) Cr. P. C. reference, to a magistrate without any qualifying words, has to be construed, unless the context otherwise requires; to a Judicial Magistrate if it is a Muffissil area and a Metropolitan magistrate, if it is a metropolitan area. Therefore, every Police Officer acting under sub-section (1) of Section 102 Cr. P. C. , in muffissil area has to send a report of seizure of the property to the Judicial Magistrate, but not to the Executive Magistrate, as was done in this case. Therefore, the Assistant sub-Inspector of Police, Deverapalli, not sending a report to the Judicial Magistrate but registering an FIR and sending a copy thereof to the Mandal Executive Magistrate, devarapalli, is highly irregular and improper. ( 5 ) IT is the specific case of the petitioner that immediately after the police seizing the engine, he sent a petition to the Director general and Inspector General of Police, hyderabad, bringing to his notice about the high handed action of the Police with a view to harass him, but no action was taken. ( 6 ) IN my considered opinion police registering an FIR in connection with seizure of property under Section 102 Cr. P. C. is improper and unwarranted, because question of registering an FIR arises only when information relating to congnizable offence is given to the Officer in charge of a police station. Section 2 (h) Cr. P. C. defines offence as an act or omission made punishable by any law in force. Transporting an old engine in an auto without document of title, prima facie, is not an offence punishable under any law for the time being in force. Section 2 (h) Cr. P. C. defines offence as an act or omission made punishable by any law in force. Transporting an old engine in an auto without document of title, prima facie, is not an offence punishable under any law for the time being in force. Obviously because suspicion of a property being stolen per se does not amount to commissions of a cognizable offence, section 102 Cr. P. C. contemplates the police officer seizing the property, under that section, sending a report of seizure to the magistrate and also to the officer in charge of the police station when the seizing officer is subordinate to the officer in charge of the police station and does not contemplate registering an FIR. The seizure in this case was made on 22-6-2003 i. e. , more than four months back. Significantly it is not even alleged that police had information or complaint from any body that their engine was stolen. So, it is prima facie clear that police have no information relating to a cognizable offence in respect of the engine that was seized by the Assistant Sub-Inspector of police till now. So, prima facie no cognizable offence with regard to the engine seized took place. When there is no cognizable offence question of registering an FIR does not arise. ( 7 ) ANOTHER significant feature in this case is the FIR not being forwarded to the magistrate empowered to take cognizance of the offence as contemplated by Sec. l57 (l) cr. P. C. Instead of marking a copy of the FIR to the Judicial Magistrate it was marked to the Mandal Executive Magistrate, which speaks volumes about the bona fides of the assistant Sub-Inspector in registering crime in connection with seized engine. ( 8 ) IN the above circumstances it is ex facie evident that the police only with a view to harass the petitioner had seized his engine and registered a case and kept the same in their custody, without any justifiable reason. Therefore, the FIR deserves to be and has to be quashed. ( 9 ) HENCE, the petition is allowed. The FIR in Crime No. 31 of 2003 of Devarapalli Police station registered in connection with the seizure of the petitioner s engine is quashed. The engine seized by the Assistant Sub- inspector of Police, Devarapalli, shall be returned to the petitioner forthwith. ( 9 ) HENCE, the petition is allowed. The FIR in Crime No. 31 of 2003 of Devarapalli Police station registered in connection with the seizure of the petitioner s engine is quashed. The engine seized by the Assistant Sub- inspector of Police, Devarapalli, shall be returned to the petitioner forthwith. Petitioner is at liberty to seek such remedies available to him for the hardship caused to him due to the seizure of the engine belonging to him.