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2022 DIGILAW 1922 (RAJ)

Ganesh Paliwal v. State Of Rajasthan

2022-07-01

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - Invoking inherent powers of this Court, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), the petitioner has challenged the order dated 02.02.2022 passed by Additional Chief Judicial Magistrate, Pokran, District Jodhpur (hereinafter referred to as the 'trial Court') whereby his application under Section 457 of the Code for release of his vehicle i.e. Hyundai Venue Car bearing registration No. RJ-19-CK-9084 (hereinafter referred to as 'the Car') has been allowed subject to furnishing a bank guarantee of Rs. 50,000/-. 2. Learned counsel for the petitioner submitted that the vehicle in question came to be seized in furtherance of FIR No. 56/2021 dated 10.09.2021, which was registered pursuant to a complaint lodged against the petitioner levelling allegations of offence punishable under Sections 420, 406 & 120-B of the Indian Penal Code. 3. Learned counsel argued that the vehicle in question was not involved in the commission of any offence, hence, the provisions of Section 102 of the Code do not apply. Moreso, since the property in question is not required for the purpose of investigation of the offence(s) alleged against the petitioner, the impugned condition of furnishing bank guarantee of Rs. 50,000/- is not only onerous but also contrary to law and facts involved in the present case. 4. Learned Public Prosecutor at the outset raised a preliminary objection that the petitioner is required to avail remedy of revision before the competent Court and the present petition under Section 482 of the Code is not maintainable. 5. It was also argued that the condition of furnishing bank guarantee of Rs. 50,000/- is justified in light of Sections 105C to 105E of the Code, which provide for forfeiture of the property. 6. Learned counsel for the petitioner though conceded that revision would lie against the impugned order but since the post of Additional District Judge, Pokran is lying vacant and no Officer has been appointed in the Court of Additional District Judge, Pokran, the remedy of revision is inefficacious, because only matters of grave urgency are being taken up by the link Court. 7. Heard. 8. Indisputably, it is neither the allegation in the FIR that the Car has been procured by cheating the complainant nor it is a case of the respondent that the petitioner has used the Car for the purpose of cheating the complainant. 9. 7. Heard. 8. Indisputably, it is neither the allegation in the FIR that the Car has been procured by cheating the complainant nor it is a case of the respondent that the petitioner has used the Car for the purpose of cheating the complainant. 9. In light of the above situation, seizure of the Car under the provisions of the Code is unwarranted if not unauthorized. The police possesses power to seize a property under Section 102 of the Code only if the property is alleged or suspected to have been stolen or which creates suspicion of commission of an offence. 10. The basic ingredients under Section 102 of the Code don't exist in the present case. That apart, the vehicle in question by no stretch of imagination can be forfeited in the facts of the present case. 11. It is informed that for dealing with the cases of the Additional District Judge, Pokran, a Camp Court in Pokran is being held three days in second week and three days in fourth week of every month, hence remedy of revision is inefficacious. 12. Moreover, as the condition of furnishing a bank guarantee of Rs. 50,000/- is ex-facie without jurisdiction, this Court is persuaded to invoke its inherent jurisdiction under Section 482 of the Code. 13. According to this Court, the provisions of Section 105E of the Code or even entire Chapter VIIA is not applicable in relation to general offences under the Indian Penal Code and it is only applicable to situations, where an offence is committed in a contracting country. Said view is fully fortified by the authoritative pronouncement of the Apex Court in the case of State of Madhya Pradesh v. Balram Mihani & Ors., reported in (2010) 2SCC 602. Relevant extract of the judgment being reproduced hereinfra:- "8. We have considered the judgment as also the contentions raised by the learned counsel. We have also perused the heading of Chapter VII-A as also the Statement of Objects and Reasons. After perusing the same we are of the firm opinion that the well written judgment of the High Court is correct and the High Court has taken a correct view. 9. We have also perused the heading of Chapter VII-A as also the Statement of Objects and Reasons. After perusing the same we are of the firm opinion that the well written judgment of the High Court is correct and the High Court has taken a correct view. 9. In the Statement of Objects and Reasons to the Amending Act 40 of 1993 there is a clear cut reference that the Government of India had signed an agreement with the Government of United Kingdom of Great Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving currency transfer) and terrorist funds, with a view to check the terrorist activities in India and the United Kingdom. The statement further goes on to provide the three objectives, viz.: (a) the transfer of persons between the contracting States including persons in custody for the purpose of assisting in investigation or giving evidence in proceedings; (b) attachment and forfeiture of properties obtained or derived from the commission of an offence that may have been or has been committed in the other country; and (c) enforcement of attachment and forfeiture orders issued by a court in the other country. 10. We have even taken into consideration the speech of the then Home Minister Shri S.B. Chavan which leaves no doubt that this Chapter is not meant for the local offences. 11. When we see the applications as also the order passed by the Trial Court, it is clear that it is only and only in respect of the local offences like gambling and the offences under I.P.C. which are local. Even the properties are not shown to be connected with crimes mentioned in the Objects and Reasons of the amending Act. In fact, no connection is established also between crimes mentioned and the properties. Such properties are clearly not included in Section 105-C. Though the language of Section 105-C (1) is extremely general, its being placed in Chapter VII-A cannot be lost sight of. Again there is a clear cut reference in Sub-section (2) thereof to the contracting state, the definition of which is to be found in Section 105-A (a). It is, therefore, clear that the property envisaged in Section 105-C (1) cannot be an ordinary property earned out of ordinary offences committed in India. Again there is a clear cut reference in Sub-section (2) thereof to the contracting state, the definition of which is to be found in Section 105-A (a). It is, therefore, clear that the property envisaged in Section 105-C (1) cannot be an ordinary property earned out of ordinary offences committed in India. Where the language is extremely general and not clear, the contextual background has to be taken into consideration for arriving at clear interpretation. Some assistance was tried to be taken from the language of Section 105-B(2) which starts with the words "notwithstanding anything contained in this Code". However, when the sub-section is read in entirety, it is clear that it makes reference to a person who is in "contracting State". Therefore, even that reference will not bring in any provision within the scope of general law. We again cannot ignore the express language of Sections 105-B and 105-C which starts with the words "where a court in India". If this chapter was meant for the general offences and the properties earned out of those general offences in India, then such a phraseology would not have been used by the Legislature. 12. Lastly we see the provisions of Section 105-L which are clear that the Central Government may by notification in the official gazette, direct that the application of this chapter in relation to a contracting State with which there are reciprocal arrangements would be subject to some conditions, exceptions and qualifications as would be specified in the said notification. It is, therefore, clear that the whole chapter is specific chapter relating to the specified offences therein and has nothing to do with the local offences or the properties earned out of those. 13. At this juncture, it is pointed out that there are specific other Central laws wherein the properties earned out of trading of Narcotic Drugs and Psychotropic Substances or the offences relating to smuggling or financial offences relating to foreign exchange are liable to be attached, seized and forfeitured. Chapter VII-A is one such measure to introduce stringent measures for attachment and forfeiture of the properties earned by the offences, by way of reciprocal arrangement in the contracting countries. However, if we accept the State's contention that the provisions of Chapter VII-A are for all and sundry offences in India, it would be illogical. 14. Chapter VII-A is one such measure to introduce stringent measures for attachment and forfeiture of the properties earned by the offences, by way of reciprocal arrangement in the contracting countries. However, if we accept the State's contention that the provisions of Chapter VII-A are for all and sundry offences in India, it would be illogical. 14. If such a construction as claimed by the petitioner is given then it would mean that even for the offences which are local in nature and committed within the State, still the property connected with those offences shall be forfeitured to the Central Government. That would obviously be an absurd result. 15. Lastly, we cannot ignore the likely misuse of the provisions in Chapter VIIA if the whole Chapter is made applicable to the local offences generally. Such does not appear to be the intendment of the Legislature in introducing Chapter VII A. 14. The misc. petition is, therefore, allowed; the order dated 02.02.2022 is quashed and set aside to the extent of requiring the petitioner to furnish bank guarantee of Rs. 50,000/-. 15. The other conditions of order dated 02.02.2022 for release of the vehicle shall remain intact.