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Jharkhand High Court · body

2006 DIGILAW 65 (JHR)

Rash Bihari Singh v. State of Jharkhand

2006-01-25

AMARESHWAR SAHAY

body2006
Order Heard the parties. 2. The relevant facts for the purpose of disposal of this present application are that on the information of one Tarun Kumar Banerjee, a first information report being Bermo P.S. Case No. 76/2003 was registered under Sections 406, 420, 468, 471 and 120B of the Indian Penal Code. In the F.I.R. it was alleged, that the informant had purchased one truck. bearing registration No. WB-73/4430, from one Bablu Panda on a consideration of Rs. 2,71,000/- and a sale note was also executed. After one month of the purchase, Bablu Panda came to the informant and took his signature on a blank paper, on the pretext to get the name of the informant entered in the owner book and he also took away the truck alongwith the papers. It was further alleged that thereafter, Bablu Panda neither returned the truck to the informant nor his name was entered in the owner book of the vehicle. On enquiry, he came to know that the registration number of the truck in question has been changed and the same was handed over to one Alakh Narayan Verma for plying the same. 3. In course 'of investigation the police seized the truck. 4. The petitioner herein, namely Rash Bihari Singh claiming himself to be the owner of the vehicle, filed a petition before the Magistrate for release of the truck. A report from the Investigating Officer was called for, which was submitted showing doubt over the chassis number and engine number because it was found that the chassis number and engine number were over punched. The I.O. reported that verification was necessary to ascertain as to whether the seized truck was having registration No. WB-73/4480 or WB-37 A/2096. It appears that by order dated 20.8.2003 the learned A.C.J.M. directed the Investigating Officer to release the truck in favour of the petitioner Rash Bihari Singh on furnishing indemnity bond of Rs. 7,00,000/- with some other conditions mentioned in the order (Annexure-2). 5. The vehicle in question however could not be released by the police to Rash Bihari Singh because the person who approached the police claiming himself to be Rash Bihari Singh to be the owner of the vehicle was found to be a fictitious person. In fact he was Pasupati Nath Prasad @ Pasupati Prasad and not Rash Bihari Singh. 5. The vehicle in question however could not be released by the police to Rash Bihari Singh because the person who approached the police claiming himself to be Rash Bihari Singh to be the owner of the vehicle was found to be a fictitious person. In fact he was Pasupati Nath Prasad @ Pasupati Prasad and not Rash Bihari Singh. Accordingly, a separate case was instituted against the said person being Bermo P.S. Case No. 101/2003 under Section 419, 420 and 120B of the IPC. 6. As it appears from the facts stated in the impugned revisional order that on 31.3.2004 one another petition was filed by the said Pasupati Nath Prasad before the Magistrate for release of the aforesaid truck claiming himself to be the power of attorney holder of Rash Bihari Singh, the real owner but his prayer for release was rejected by the Magistrate by order dated 31.3.2004. Against the said order dated 31.3.2004 a criminal revision no. 47/2004 was filed, which was dismissed by order dated 24.6.2004 by the Sessions Judge. Thereafter, on 24.7.2004 one another petition was filed before the Magistrate by the present petitioner Rash Bihari Singh for release of the said truck bearing No. WB37 A/2096, stating therein that by order dated 20.8.2003, his prayer for release was already allowed but since in his place his power of attorney holder Pasupati Nath Prasad appeared before the Police for release of the vehicle in his favour but that was rejected and, as such, now a fresh direction be issued to the Police to release the vehicle in the light of the order dated 20.8.2003. It was also stated in his petition that earlier the report from the Forensic Science Laboratory was called for but the same has not been received and unnecessary delay was being caused and, as such without waiting for the said report, his petition may be disposed of. Since the petitioner insisted that the report of the Forensic Science Laboratory as called for was not being received, which was causing unnecessary delay and, therefore, his petition for release may be disposed of without waiting for the report of the Forensic Science Laboratory, the learned Magistrate consequently, finding no way rejected the prayer of the petitioner for release of the vehicle by order dated 29.7.2004. 7. 7. The petitioner filed revision again the said order dated 29.7.2004 before the Sessions Judge being Criminal Revision No. 85/2004, which was dismissed by the impugned order and hence this writ application. 8. From the impugned order of the Sessions Judge it appears that he has dismissed the revision application on the ground that a vehicle could not have been released in favour of any persons till the ascertainment of the real number of the vehicle in question. It appears from the revisional order of the Sessions Judge that even before the revisional court, the counsel appearing for the petitioner was repeatedly insisting to pass order without waiting for any expert's report. The conduct of the petitioner in insisting to dispose of his petition without waiting for the expert's report may have raised some suspicion in the mind of the Court. 9. Mr. Dayal, learned counsel appearing for the petitioner however, while arguing has raised a different point. He submitted that once the Magistrate passed the order for releasing the truck in favour of the petitioner on 20.8.2003 and, therefore, subsequently, he could not have rejected the petition for release of the truck. Subsequent rejection of the petition for release by the learned Magistrate amounted to its own judgment/order, which was not permissible under the law in view of Section 362 Cr.P.C. He submitted that Section 362 Cr.P.C. speaks that no court then it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. 10. In order to test the submission of Mr. Dayal, it is necessary to notice and consider the relevant provisions of the Code of Criminal Procedure. 11. Section 451 to Section 459 of chapter XXXIV of the Code of Criminal Procedure, deals with the disposal of property. Section 451 gives power to the Court pass an order for custody and disposal property pending enquiry or trial. Section 452 deals with the power of the court to order for disposal of property at conclusion the trial. Section 454 of the Code provides for an appeal against the order passed under Section 452 or Section 453, Section 456 of one Code empowers the court to restore possession of immovable property. Whereas, Section 457 Cr. P.C. gives power to deal with the disposal of the property during the pendency of the investigation. 12. Section 454 of the Code provides for an appeal against the order passed under Section 452 or Section 453, Section 456 of one Code empowers the court to restore possession of immovable property. Whereas, Section 457 Cr. P.C. gives power to deal with the disposal of the property during the pendency of the investigation. 12. If the Magistrate passes an order e exercising his power under Section 457 Cr.PC. for delivering a property to a particular s person so entitled to, the effect of that n order, comes to an end, no sooner the Police submits a charge-sheet, after completion of investigation. After the cognizance is taken, the Magistrate would have to pass a fresh order under Section 451 Cr. PC. during the pendency of the trial and e that stage comes after the cognizance of the offence is taken and it remain effective till the conclusion of the trial. Section 457 empowers a Magistrate to make an order respecting the disposal of property before there is any enquiry or trial where such property has been seized by the Police. The Magistrate has no power under this Section to decide the question of title. He must confine himself to the question of possession. He has merely to consider how the property is to be disposed of or dealt with; and this question may have in certain cases to be decided without any claimant before him. An order under this provision does not conclude the right of any person. Although the order may affect the party for the time being, it does not deicide the point or possession between the parties relating to property. Section 451 comes into operation only during enquiry or trial in a case. Therefore, where the Police have not filed the chargesheet against the accused and no cognizance of the offence has been taken, Section 451 of the Cr.P.C. would not be applicable. After the investigation is complete and the Police submit final form under Section 173 Cr. P. C. the next stage starts, i.e. the stage of enquiry of trial, which takes place before the Magistrate. It is then the Magistrate can exercise powers under Section 451 Cr.P.C. 13. Section 452 of the Cr.P.C., as noticed above, deals with the disposal of the property after conclusion of the trial. 14. P. C. the next stage starts, i.e. the stage of enquiry of trial, which takes place before the Magistrate. It is then the Magistrate can exercise powers under Section 451 Cr.P.C. 13. Section 452 of the Cr.P.C., as noticed above, deals with the disposal of the property after conclusion of the trial. 14. Therefore, Section 457 applies during investigation of a criminal case prior to submission of the final form under Section 173 Cr.P.C. whereas Section 451 Cr.P.C. applies during pendency of the trial, i.e. after the cognizance of the offence is taken after submission of the charge-sheet by the police under Section 173 Cr.P.C. and Section 452 Cr.P.C. applies after the, conclusion of the trial. 15. Now I shall deal with the nature of the order passed under Sections 451 and 457 Cr.P.C. Whether the Magistrate passes an order under Section 451 or 457 Cr.P.C. the nature of the order/delivery of property to a person remains temporary. If the Magistrate passes an order under Section 457 Cr.P.C. that remains effective till the completion of investigation and after submission of charge-sheet under Section 173 Cr.P.C. by the Police and after the cognizance of the offence, it becomes ineffective. Similarly, an order passed' by the Magistrate under Section 451 Cr.P.C. remains effective from the stage of taking cognizance till the conclusion of the trial. Since the provisions of Section 451 Cr.P.C. enables a Magistrate to pass an order regarding the custody or disposal of property during enquiry or trial, therefore, it means that the Magistrate directs only interim custody of property, pending conclusion of the enquiry or trial before the Court. It is only a temporary arrangement and what is contemplated is only an interim provision to provide custody with liability to produce the property back as and when directed by the Court. The maximum duration of arrangement is only till the conclusion of enquiry or trial. 16. An order made under Section 457 Cr.P.C. is also only of a temporary character. The moment a charge-sheet is placed by the Investigating Officer this order comes to an end and then a fresh order under Section 451 Cr.P.C. would become necessary. 17. The maximum duration of arrangement is only till the conclusion of enquiry or trial. 16. An order made under Section 457 Cr.P.C. is also only of a temporary character. The moment a charge-sheet is placed by the Investigating Officer this order comes to an end and then a fresh order under Section 451 Cr.P.C. would become necessary. 17. In view of the discussions made above, I am of the view that an order passed by the Magistrate either under Section 451 Cr.P.C. or under Section 457 Cr.P.C. can at best be said to be an interim, temporary or interlocutory order and it cannot be said to be a final order disposing of a case. So far as the entitlement and ownership of the property in question is concerned it is always subject to the final conclusion of the trial and final adjudication of the ownership of the property by a competent Civil Court. Therefore, any order passed under Section 451 or 457 Cr.P.C. cannot be termed as a judgment or final• order disposing of a case as envisaged under Section 362 of the Cr.P.C., which speaks about that• no •court when it has signed its judgment or final order disposing of a case shall alter and review the same except to correct a clerical, arithmetical error. Accordingly, it is held that the Court has the jurisdiction to terminate the entrustment, get back the property from the person to whom it was entrusted in exercise of the powers either under Section 457 or under Section 451 Cr. P.C. and then again entrust it to somebody else, whom the Court deems fit and proper in appropriate cases even before the conclusion the trial. Consequently, the contention of Mr. Dayal that the impugned orders are hit by Section 362 Cr.P.C. is rejected. 18. In the present case, since, there was already a report of the Investigating Officer showing chassis number and engine number appears to be over punched, the learned Magistrate was perfectly justified in calling for a report from the Forensic Science Laboratory to ascertain the actual chassis number and engine number of the vehicle in question but the petitioner intentionally did not allow the courts below to have the report and insisted that his petition for release be disposed of without waiting for the expert's report. 19. 19. In this view of the matter, the learned court below had no option but to reject the petition for release of the vehicle in question. I find that the learned Court below has perfectly justified in refusing to release the vehicle in favour of the petitioner. Accordingly, this application is dismissed having found no merit.