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Himachal Pradesh High Court · body

2003 DIGILAW 99 (HP)

SUMIT GARG v. STATE OF H. P.

2003-05-08

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) read with Article 227 of the Constitution of India against the order dated 26.11.2002 passed by the learned Sessions Judge, Shimla thereby setting aside the release orders dated 6.7.2001 and 9.7.2001 passed by the learned Chief Judicial Magistrate, Shimla, has been preferred by the petitioner/claimant (hereafter referred to as the claimant). 2. The facts relevant and material for the purpose of disposal of this petition are as follows. On 7.6.1999 S.I. Ram Lal, Additional S.H.O., Police Station, Shimla, while on patrol duty along with some other police officials came across three women at the Bus Stand Shimla. At that time it was in the air that certain women were visiting Shimla and indulged in pick-pocketing. Getting suspicious. S.I. Ram Lal enquired from those women about their particulars who disclosed their different names and particulars at different stages. This led to the conducting of their personal search by a lady constable and on search of the bag in possession of one of the aforesaid women who finally disclosed her name as Subhadra, 79 currency notes of Rs. 500 each, total amount Rs. 39,500, were recovered. According to said Subhadra, she found this money near the lift. The amount was seized by SI Ram Lai under Section 102 of the Code on the suspicion that this money had been procured by the said woman by pick-pocketing. Since none claimed this amount, therefore, it was deposited in the District Malkhana on 20.1.2000. On 21.12.1999 the claimant filed an application in the Court of the learned Chief Judicial Magistrate, Shimla for release of the aforesaid amount on the ground that a sum of Rs. 40,125 was lost by him while on way to Deen Dayal Upadhaya Hospital, Shimla alongwith his wife on 7.6.1999 from where he was to go to a Bank to get a bank draft prepared. It appears that proceedings in this application were not carried to the logical end. On 5.5.2001 the claimant moved a similar application for release of the seized amount to him claiming to be the rightful owner thereof. On receipt, this application was sent to the S.H.O. Police Station Shimla who submitted his report dated 26.5.2001 about the circumstances in which a sum of Rs. On 5.5.2001 the claimant moved a similar application for release of the seized amount to him claiming to be the rightful owner thereof. On receipt, this application was sent to the S.H.O. Police Station Shimla who submitted his report dated 26.5.2001 about the circumstances in which a sum of Rs. 39,500 was recovered and also mentioned in the report that this amount was deposited in the District Malkhana on 20.1.2001. On 6.7.2001, the learned Chief Judicial Magistrate recorded the statement of the claimant on oath and relying on such statement, vide order dated 6.7.2001 directed release of a sum of Rs. 40,125 to the claimant subject to his furnishing Spurdari bond and undertaking to produce the amount so released as and when so required by the Court. The requisite bond furnished by the claimant was accepted and attested by the learned C.J.M. vide order dated 9.7.2001 and directed the release of the amount in question for the claimant. Aggrieved by the orders, the State preferred a revision petition which was allowed by the learned Sessions Judge, Shimla by the impugned order and the release orders passed by the learned Chief Judicial Magistrate were quashed and set aside. Hence, this petition by the claimant. 3. I have heard the learned Counsel for the claimant and the learned Additional Advocate General for the respondent-State and have also gone through the records. 4. It was contended by the learned Counsel for the claimant that in view of the unrebutted statement of the claimant and there being no other rival claimant, it was established on record that the claimant is entitled for release of the amount in question. It was further contended that even if there were variations in the amount seized by the police and the amount ordered to be released by the learned Chief Judicial Magistrate that was a clerical error and could be rectified. Even if the requisite bonds furnished by the claimant were defective, he could be directed to furnish fresh bonds and these lapses could not afford a reasonable ground for setting aside the order of release passed by the learned Chief Judicial Magistrate and to dismiss his claim for release of the amount. Even if the requisite bonds furnished by the claimant were defective, he could be directed to furnish fresh bonds and these lapses could not afford a reasonable ground for setting aside the order of release passed by the learned Chief Judicial Magistrate and to dismiss his claim for release of the amount. It is, therefore, urged by the learned Counsel for the claimant that the impugned order deserves to be set aside and the order of release passed by the learned Chief Judicial Magistrate deserves to be restored. 5. The learned Additional Advocate General has contended that the seized money in fact was not a case property, therefore, the application for release of the amount before the learned Chief Judicial Magistrate was not maintainable and deserved to be rejected only on this score and this being a legal plea, can be raised by him in this petition. It is, therefore, urged by the learned Additional Advocate General that the impugned order setting aside the release orders, passed by the learned Chief Judicial Magistrate without jurisdiction, calls for no interference. 6. It was further contended that mere statement of the claimant that the amount in question belongs to him and without holding a proper enquiry in the matter, the release orders passed by the learned Chief Judicial Magistrate were not sustainable even on merits, therefore, the impugned order setting aside such orders does not call for any interference. 7. There is no dispute that 79 currency notes of Rs. 500 each were seized by SI Ram Lal in exercise of the powers vested in a Police Officer under Section 102 of the Code. 8. Section 102 of the Code reads as under: "102. Power of Police Officer to seize certain property.—(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.” 9. It is evident on a bare reading of the aforesaid provisions that a police officer is authorised to seize any property which is alleged or suspected to be stolen property or has been found under the circumstances which create suspicion of commission of an offence. According to the police report, the currency notes in question were seized by SI Ram Lal because he suspected them to be the stolen property having been procured by said Subhadra by pick-pocketing. 10. The procedure in which the property so seized is to be dealt with, has been provided under sub-section (3) of Section 102 and Sections 457 and 458 of the Code. In view of the provisions of sub-section (3) of the Code, it is obligatory on the part of the police officer seizing the property under sub-section (1) of Section 102 of the Code to report the seizure to the Magistrate having jurisdiction. 11. Section 457 of the Code reads as under:— "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 of 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." 12. Section 458 of the Code reads as under:— "458. Procedure where no claimant appears within six months.—(1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt within such manner as may be prescribed. (2) An appeal shall lie against any such order to the court to which appeals ordinarily lie from convictions by the Magistrate." 13. It is evident on a bare perusal of the aforesaid provisions that seized property is to be dealt with by a Magistrate in accordance with the aforesaid provisions. Therefore, the question as to whether a Judicial Magistrate or an Executive Magistrate will have the jurisdiction and powers 4o deal with the seized property, hinges around the answer to the question whether reference to "the Magistrate" in Sections 102, 457 and 458 of the Code is to a Judicial Magistrate or an Executive Magistrate. 14. Section 3(l)(a) of the Code reads as under:— "3. Construction of references.—(1) In this Code,— (a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,— (i) in relation to an area outside a Metropolitan Area, as a reference to a Judicial Magistrate; (ii) in relation to a Metropolitan Area, as a reference to a Metropolitan Magistrate." 15. It is evident from the aforesaid provisions that any reference in the Code to "a Magistrate" without any qualifying words, shall, unless the context otherwise requires, be construed as a reference to "a Judicial Magistrate". It is evident from the aforesaid provisions that any reference in the Code to "a Magistrate" without any qualifying words, shall, unless the context otherwise requires, be construed as a reference to "a Judicial Magistrate". There is nothing in the provisions of Sections 102, 457 and 458 of the Code which may lead to a conclusion that the expression "the Magistrate" as used therein, is to be construed as a reference to the Executive Magistrate. Therefore, for all intents and purposes expression "the Magistrate"^ used in these sections, is to be construed as a reference to "the Judicial Magistrate." 16. In view of the above discussion, it is the Judicial Magistrate having jurisdiction over the area where the property is seized to whom the seizure is to be reported by the police and he is to pass orders regarding disposal of the seized property under Sections 457 or 458 of the Code. Therefore, the contention of the learned Additional Advocate General that the seized property could be dealt with only by an Executive Magistrate, is not sustainable. The learned Chief Judicial Magistrate, Shimla, within whose jurisdiction the currency notes were seized, have the jurisdiction to entertain an application for release of the seized property and to pass appropriate orders thereon within the frame work of Sections 457 and 458 of the Code. 17. The learned Sessions Judge came to the conclusions (i) that there is difference in the amount seized, the amount claimed and the amount ordered to be released, (ii) that the Spurdari bond was not properly executed, (iii) that the claimant had failed to lead any documentary evidence in support of his version, (iv) that the amount had already been deposited in the Malkhana, and was custodia legis, and (v) that the claimant had filed an application for release of the amount earlier also but the learned Chief Judicial Magistrate did not ascertain as to what orders had been passed on such application. In view of these conclusions, the learned Sessions Judge held that the release orders had been passed in routine and casual manner without due application of mind and accordingly set aside the release orders. 18. In view of these conclusions, the learned Sessions Judge held that the release orders had been passed in routine and casual manner without due application of mind and accordingly set aside the release orders. 18. As is evident from the provisions of Section 102 of the Code, already set out hereinabove, it was the duty of the Police Officer seizing the currency notes to have reported the seizure to the Judicial Magistrate having jurisdiction but admittedly the seizure was not so reported. Instead, the police of its own accord, deposited the seized amount in the District Malkhana. This deposit by the police did not by itself place the seized amount at the disposal of the State Government and thus incapable of being released to the rightful claimant. 19. It is clear from bare reading of Section 458 of the Code, already set out heretofore, that if no person establishes his claim to the seized property within six months of the proclamation, the Judicial Magistrate may order that the seized property shall be at the disposal of the State Government which may deal with it in the prescribed manner. Therefore, for want of any order having been passed by the concerned Judicial Magistrate putting the seized currency notes at the disposal of the Government, the mere deposit of it by the police in the District Malkhana did not amount to putting the seized property at the disposal of the State Government giving it a right to deal with it in the prescribed manner. Therefore, the learned Sessions Judge has wrongly taken the view that the seized property was custodia legis and could not be ordered to be released. 20. From the perusal of the record, it appears that the learned Chief Judicial Magistrate has passed the release orders dated 6.7.2001 and 9.7.2001 in a slip shod manner without application of mind. It is so because he directed release of higher sum of money than was in fact seized. The surety bonds accepted and attested by him were not drawn properly and could not be acted upon. Therefore, in view of the infirmities, pointed out hereinabove, release orders were liable to be set aside and have been rightly set aside. 21. It is so because he directed release of higher sum of money than was in fact seized. The surety bonds accepted and attested by him were not drawn properly and could not be acted upon. Therefore, in view of the infirmities, pointed out hereinabove, release orders were liable to be set aside and have been rightly set aside. 21. It may also be pointed out that apart from the infirmities noticed by the learned Sessions Judge, the learned Chief Judicial Magistrate has not dealt with the application in accordance with the procedure as prescribed under Section 457 of the Code. 22. Section 457 of the Code has already been quoted hereinabove. It is evident from the provisions of Section 457 that the Magistrate may order delivery of the seized property to the person entitled to possession thereof. However, such a course is permissible only if the person, so entitled, is known. In case the person so entitled is not known, the Magistrate, seized of the matter, has to issue a proclamation specifying the particulars of the seized property 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. It may be clarified that a person who claims the seized property, is merely a claimant and not necessarily the person known to be entitled to such property. 23. In the case in hand, the currency notes were seized from Subhadra who admittedly did not claim it. The claimant, however, stacked claim for release of the currency notes on the ground that it belongs to him. Therefore, it was a matter of inquiry as to who is the person entitled to possession/ release of the money in question. To ascertain such entitlement, it was the duty of the Magistrate to issue a proclamation as provided under sub-section (2) of Section 457 of the Code, wait for the claims, if any, for the specified period and thereafter hold an inquiry into the claims preferred before him. On such inquiry if it could be ascertained that a particular claimant is entitled to the possession of the money, the money could be released to such person. On such inquiry if it could be ascertained that a particular claimant is entitled to the possession of the money, the money could be released to such person. In case the claimant(s) could establish the entitlement to the possession of the seized property, it was required to be placed at the disposal of the State Government for further action as contemplated under Section 458 of the Code. The learned Magistrate having failed to adopt this procedure, his orders for release of the seized property are illegal and liable for being set aside even on this score. Thus, the action of the learned Sessions Judge in setting aside the orders passed by the learned Chief Judicial Magistrate is justified. 24. It may, however, be pointed out that non-application of mind to the facts and circumstances of the case, acceptance of invalid bonds without directing the concerned party to file proper bonds and not adopting the procedure as prescribed by law by the Magistrate, are not the faults attributable to the claimant. Therefore, for the irregularities/illegalities committed by the learned Chief Judicial Magistrate, the application of the claimant could not by necessary implication be dismissed but the matter ought to have been remanded to the learned Chief Judicial Magistrate for disposal afresh in accordance with law and procedure. The learned Sessions Judge, however, did not remand the case for inquiry into the case in accordance with law which has resulted in gross injustice to the claimant which requires to be undone. 25. As a result, while maintaining the order of the learned Sessions Judge setting aside the release orders passed by the learned Chief Judicial Magistrate, the impugned order is modified to the extent that the matter is ordered to be remitted to the learned Chief Judicial Magistrate, Shimla for disposal afresh in view of the observations made hereinabove and in accordance with law. This petition is accordingly disposed of. 26. The parties are directed to appear before the learned Chief Judicial Magistrate, Shimla on 30.5.2003.