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2012 DIGILAW 716 (RAJ)

Jagdish Chandra v. State of Rajasthan

2012-03-22

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed by the petitioner challenging the order dated 3.2.2007 passed by learned Additional Chief Judicial Magistrate No.3, Udaipur in Criminal Regular Case No.787/2004, arising out of FIR No.114/2004 of P.S. Nai, Udaipur, whereby the prayer of the petitioner for being given the possession of the house in question has been rejected. 2. Counsel for the petitioner submits that in this case, the police has taken possession of an immovable property i.e. House during the course of investigation. It is submitted that in view of the decision of this Court rendered in the case of Amrit Lal Kumawat v. State , the police has no powers to seize the immovable property. 3. Counsel for the respondent submits that a reference in this regard is pending before the larger bench of this Court, therefore, the view of this Court in the case of Amrit Lal Kumawat (supra) should not be followed. 4. In the opinion of this Court, there are two divergent views of Single Benches in relation to the issue as to whether the police has power to seize the property or not but on a perusal of the provisions of Code of Criminal Procedure, it becomes apparent that the powers of seizure of the property have been given to the police as per Section 102 Cr.P.C. Apart from the said provision, the police has no powers to make seizure of the properties except when acting under the directions of the Court in the proceedings under Section 145 Cr.P.C. or under 133 Cr.P.C. or under Section 456 Cr.P.C. The power under Section 102 Cr.P.C. do not clothe the police to make seizure of immovable property. 5. Resultantly, this Court is of the firm opinion that the seizure of the property in question by the police was absolutely illegal and amounts to an abuse of process of the Court. 6. Resultantly, this misc. petition is allowed, the order passed by the Magistrate dated 3.2.2007 rejecting the application of the petitioner for being handed back the seized immovable property is hereby set aside and the learned Magistrate is directed to instruct the concerned police officer to hand over the possession of the house in question to the person from whom the possession of the house was taken.Record be sent to the court below forthwith.Petition allowed. *******