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Madhya Pradesh High Court · body

2006 DIGILAW 452 (MP)

Ashok v. State of M. P.

2006-03-28

W.A.SHAH

body2006
ORDER 1. This is a petition under section 482 of the Code of Criminal Procedure "("Code" hereinafter) and it arises out of order dated 8.2.2006 passed by learned Judicial Magistrate First Class, Biaora, District Rajgarh, in Miscellaneous Criminal Case No. 3/2006. 2. The factual background of the matter is that the Town Inspector, Police Station Biaora, filed an application before the learned Judicial Magistrate First Class, Biaora, on the ground that the petitioner deals in gambling and had acquired huge property through the proceeds of the said gambling, therefore. the Town Inspector he allowed or ordered to investigate and collect the evidence about the said acquisition of the property and it was further requested that till the disposal of the application the petitioner he restrained from transferring or alienating his property to anyone. On moving the said application, the learned Judicial Magistrate First Class, Biaora passed the order impugned allowing the application and granting the relief's sought. The learned Court below also ordered to issue show cause notice to the petitioner and directed that within 30 days, the petitioner should show justification about the acquisition of his property which may he seized as per order relating to attachment and seizure. 3. The further factual background is that after the above order the police searched the house of the petitioner and prepared inventory panchnama. The petitioner made a complaint to the learned Magistrate that the order did not authorize the raiding of the house by the police, whereas under the garb of the impugned order the Police raided the house of the petitioner and made the said panchnama. Thereafter, the learned Magistrate directed the concerned police to produce the panchnama and the proceedings of the raid he fore it. After that, police moved an application for transfer of the case before the learned Chief Judicial Magistrate, Rajgarh, and subsequently he allowed it in his Court which is now pending as Criminal MJC No. 18/2006. 4. Under these circumstances, this petition is on the following grounds: (i) That learned Magistrate has on jurisdiction to entertain such application tiled under section 105 CrPC as well as to pass such order i.e., 8.2.2006 directing the police to collect the evidence and to restrain the applicant to transfer or alienate property. 4. Under these circumstances, this petition is on the following grounds: (i) That learned Magistrate has on jurisdiction to entertain such application tiled under section 105 CrPC as well as to pass such order i.e., 8.2.2006 directing the police to collect the evidence and to restrain the applicant to transfer or alienate property. (ii) That learned lower Court has no jurisdiction to issue show cause notice to the applicant directing him to give explanation and to produce evidence about acquisition of his properly. (iii) That relief sought in the application (Annexure A) has been finally allowed granting both reliefs then nothing remains to proceed further in the matter or to issue show cause notice to the applicant or to make further enquiry about acquisition of property of any person/applicant. (iv) That impugned order dated 9.2.2006 (Annexure A2) which is final in nature. has been passed without notice and hearing the applicant. therefore. such order which has been passed behind the back of the applicant. is illegal and opposed the principles of natural justice. (v) That impugned order as well as proceedings arc misconceived. (vi) That at the time of filing of the application under section 105 CrPC for passing the impugned order not a single criminal case was pending against the applicant. The alleged cases are old in which the applicant has been acquitted by the Court below. (vii) That if there would be illegal acquisition of property. then it will be the jurisdiction of the Income Tax Department to make enquiry about and punish the applicant by invoking the provisions of the Income Tax Act. (viii) That the applicant craves leave of Hon'ble Court to urge other grounds at the time of hearing of this petition. 5. Accordingly it is prayed as under: It is. therefore. prayed that impugned order dated R.2.2006. passed by learned Judicial Magistrate First Class. Biaora and the proceeding pending in Miscellaneous Criminal Case No. 3/06 and the subsequent proceedings pending before learned Judicial Magistrate, Rajgarh may kindly be quashed. 6. It appears that the learned Magistrate has passed the order impugned under the provisions of section 105C. 105D and 105G of the Code The order impugned does not show that the learned Magistrate ever considered the provisions of section 10S of the Code. 6. It appears that the learned Magistrate has passed the order impugned under the provisions of section 105C. 105D and 105G of the Code The order impugned does not show that the learned Magistrate ever considered the provisions of section 10S of the Code. The learned Magistrate appears to have lost sight of the fact that the provisions which he applied could not be independently applied and they can only be applied while applying section 105 itself. Section 105 of the Code applies only in cases where there is a reciprocal arrangement with the foreign countries for extension of Code of Criminal Procedure to their territories. These provisions under section 105 as well as the provision applied by the Magistrate only apply to the territories and in which by reciprocal arrangement provisions of the Code are applicable. Under these circumstances. the impugned order which the learned Magistrate passed is clearly without jurisdiction as the provisions to which he has resorted are not available to be applied to the local areas. 7. In view of the above matter. the impugned order is set-aside. Resultantly the proceedings pending in the Court of Chief Judicial Magistrate. Biaora in Criminal MJC No. 18/2006 arc quashed.