In view of distinction as above, it is difficult to swallow the contention of Advocate Shri Bilolikar that earlier order dated 14.2.2002 was an order under Section 457 of CrPC and therefore, the impugned order amounts to review and is illegal. Such an arguments is required to be rejected as devoid of any merits. On the contrary, earlier order being order under Section 451 of CrPC the Magistrate is obliged to suo motu pass the final orders pertaining to custody of the property when he may consider "C" summary for conclusion of the enquiry and investigation. In fact, even the impugned order is an order under Section 451 of CrPC because even in this order, the Magistrate has expected respondent No.1 to execute a bond and also undertaking to produce the vehicle before the Court if required. The final order would follow under section 452 of CrPC on conclusion of trial but in the present case, on conclusion of findings of the learned Magistrate on the report submitted by police for "C" summary.
Bombay High Court
Noorkhan S/O Jafarkhan vs Sk. Jakeer Sk. Akbar on 15 January, 2003
Equivalent citations: 2003 (2) ALD Cri 65, 2003 BomCR Cri
Bench: N Dabholkar
1. Heard learned counsel for the applicant and respondent No.1, who are genuinely contesting parties. Shri Naik, learned APP has supported the arguments of respondent No.1, being the original owner and consequently prayed for upholding the impugned order.
2. Rule. By consent, Rule is made returnable forthwith.
3. Order passed by the learned II Judicial Magistrate F.C. Nanded on 21.11.2002 directing return of vehicle no.MH-21/3445 by applicant in favour of respondent No.1 is being challenged by present application under Section 482 of the Criminal Procedure Code, 1973 (CrPC) read with Article 227 of the Constitution of India. Admittedly respondent No.1 (Sk.Jakeer) is the owner of the vehicle in question. It is claim of applicant (Noorkhan) that by an agreement of sale executed on 11.9.2000 respondent No.1 agreed to sell the vehicle to him for consideration of Rs.4,11,786/ by accepting the part consideration of Rs.1,55,483/ and it was agreed that the balance consideration would be satisfied by applicant by paying the remaining bank installments of the loan obtained by respondent No.1 for the purpose of purchasing the said vehicle. It is claim of applicant that he apprehended of some other customer having approached respondent no.1 by offering higher price and therefore, he filed the Regular Civil Suit No.424 of 2001 for injunction restraining respondent No.1 from taking custody of vehicle from the applicant.
On 4.7.2001, applicant was successful in obtaining ad-interim ex-parte injunction. After respondent No.1 appeared, upon hearing both the parties, learned Civil Judge Nanded was pleased to vacate the injunction by order dated 27.8.2002. On or around 25.1.2002, applicant had filed a complaint about theft of the vehicle and during the course of investigation of that complaint, the vehicle was seized by police, admittedly from custody of respondent No.1; on 7.1.2002.
Both, applicant and respondent No.1, moved Judicial Magistrate (F.C.), with applications for custody of the vehicle. Both the applications were heard together and decided by common order dated 14.2.2002. The operative part of the order may usefully be referred herein below.
"a.Oth. Misc. Cri. Appln. No.60/2002 is allowed. Oth. Misc.Cri.Appln. No.61/2002 is hereby dismissed. PSI of PS Bhagyanagar, Nanded is directed to hand over the interim custody of the vehicle in question to the applicant, Noorkhan on his executing of Indemnity Bond of Rs.5,00,000/ subject to the final order in RCS No.424/2001 at Exh.5. b.Applicant is directed to produce the vehicle in question as and when required during the course of investigation and trial, by this Court."
There is no dispute that the custody of the vehicle was granted in favour of applicant on the sole ground that at that time ad-interim injunction granted in his favour was still in force and therefore, respondent No.1 could not get custody of the vehicle in breach of the order of Civil Court.
After the injunction was vacated, applicant preferred Misc. Civil Appeal No.90 of 2002 and appears to have obtained some interim relief by order dated 27.9.2002. It appears that interim relief was granted on assurance of both lawyers that they will argue the matter for final hearing on 3.10.2002. However, as the lawyer of applicant was absent before the District court on 3.10.2002, interim relief vide order dated 27.9.2002 was vacated. It further appears that appeal was dismissed in default on 17.10.2002 because nobody remained present on behalf of applicant on 3.10.2002,, 10.10.2002, 14.10.2002, and 16.10.2002 - the dates on which the appeal was fixed for final hearing.Thus, as at present, there is no order of injunction in favour of applicant.
Respondent No.1 filed another application - Cri. Misc. Application No.409/2002 and claimed custody of the vehicle. This application is allowed by the learned Judicial Magistrate F.C. by the impugned order. While granting custody of vehicle to respondent No.1, learned Magistrate has observed that the documents filed with list Exhibit 10 before him indicate that the registration certificate of the vehicle was in favour of Sk.Jakeer. Even the insurance certificate of the vehicle showed name of Sk. Jakeer as the owner. The learned Magistrate has also referred to some of the observations of the Civil Court while vacating the ad-interim ex-parte injunction that was granted in favour of applicant. It appears that agreement of sale, purportedly executed by respondent No.1 and upon which applicant was relying to claim that vehicle was in his possession and subsequently stolen was referred to handwriting expert and expert opined that signature on the alleged agreement of sale was not that of Sk.Jakeer - respondent No.1. Thus, it appears that so far as interim injunction is concerned, the carpet under the feet of applicant and original plaintiff Noorkhan was totally removed by experts opinion. The learned Magistrate has also taken cognizance of the fact that Misc. Civil Appeal preferred by the applicant was dismissed due to his non-appearance. Having found that respondent No.1 is the original owner and the claim of applicant that vehicle was delivered to him under an agreement of sale was falsified by handwriting expert, the Magistrate was pleased to direct the custody of vehicle in favour of respondent No.1.
Taking into consideration the reasons for which the custody of the vehicle was handed over to respondent No.1, it is not possible to find any fault with the order of the Magistrate. Although it was claimed by applicant that balance amount of consideration was to be satisfied by applicant by paying the installments of the bank loan obtained by respondent No.1, he does not appear to have presented any proof, either of the fact that respondent No.1 having obtained loan for the purpose of purchase of vehicle or of applicant himself having satisfied some of the installments during the intervening period i.e. from the date of agreement dated 11.9.2000 till the time of filing suit in July 2001.
4. Advocate Shri Bilolikar has come with two fold arguments. According to him order passed by the Magistrate on 14.2.2002 was an order under Section 457 of CrPC having its own finality and therefore, Magistrate had no powers to review his own order and pass the impugned order. Advocate Shri Kolhe has challenged both the propositions of Shri Bilolikar. According to him, the order dated 14.2.2002 was inter locutory order as is evident from the text of the operative part itself. Consequently, respondent No.1 could not have approached the revisional court for relief against the same and therefore, he rightly approached the Magistrate for fresh order after the reason due to which the vehicle was ordered to be given to the custody of applicant had become non existent i.e. interim injunction operating in favour of applicant. Secondly, it is also argued by Advocate Shri Kolhe that order dated 14.2.2002 cannot be termed to be an order under Section 457 of the CrPC in view of the fact that the seizure of vehicle was during the course of enquiry/ investigation into the complaint of applicant regarding theft of the vehicle. Thus, it was an order under Section 451 of CrPC and it was open for the respondent No.1. to seek suitable modification of the same as also to seek a final order under Section 452 of CrPC on conclusion of the trial if the investigation resulted into filing of charge sheet.
5. So far as contention of Advocate Shri Bilolikar that order dated 14.2.2002 was a final order (irrespective of the fact whether it was under Section 457 of the CrPC or not) and therefore, the same could not have been reviewed by the learned Magistrate himself; contents of the operative order itself pose challenge to such submission. These contents are underlined for the purpose of emphasis, hereinabove where the order is reproduced for ready reference. The learned Judge has observed, "PSI of Police Station Bhagyanagar, Nanded is directed to hand over the interim custody of the vehicle in question." The words interim custody clearly indicate that the Judge did not desire to give finality to the relief that was being granted in favour of applicant. In the later part of the order, the Judge has imposed conditions upon applicant to execute indemnity bond of Rs.5,00,000/. He is also bound over to produce the vehicle as and when required during the course of investigation and trial by the court. Lastly, it is also said that the interim custody is granted "subject to final order in RCS No.424/2001 at Exhibit 5." It is clearly evident that Magistrate had taken cognizance of the fact that the parties were litigating their right to the vehicle before the Civil Court and therefore, since the vehicle was seized by the police during the course of investigation he was passing an order as a stop gap arrangement. The contention of Advocate Shri Bilolikar that the Magistrate has reviewed his own order, without having powers to do so, is therefore, unsustainable.
Shri Bilolikar, Advocate had placed reliance upon the observations of this Court in the matter of Chandrabhan Vs. State of Maharashtra (1985 Mah.L.R.6), wherein the Court had held that the Magistrate having passed the order in favour of applicant therein on 28.3.1983 could not have passed the order in favour of respondent No.2 therein on 5.5.1983 regarding return of vehicle, since it amounted to review of his own order. In the present matter, the observations are not applicable since as demonstrated earlier the previous order was not a final order.
6. So far as contention of Advocate Shri Bilolikar that order dated 14.2.2002 was an order under Section 457 CrPC is also not sustainable, admittedly; applicant had lodged a complaint regarding theft of the vehicle on/or around 25.1.2002. Advocate Shri Kolhe has informed that police have filed "C" summary report on 27.2.2002 before the Magistrate. (As per Criminal Manual "C" summary means wherein, no offence has been committed at all, either by accused or anyone else but wherein the case is found to be neither true nor false or false but not maliciously false). Shri Kolhe is unaware whether the Magistrate has passed any final orders on this "C" summary report filed by the police under Section 173 of CrPC. According to Advocate Shri Kolhe, the vehicle which was seized on 7.2.2002 was during the period when the enquiry / investigation was in progress and therefore, any order passed by the Magistrate pertaining to disposal of the vehicle was an order under Section 451 of CrPC and not an order under Section 457 of CrPC. Consequently, respondent No.1 had every right to seek modification of the order from the same Magistrate and the Magistrate also had powers to pass final orders under Section 452 of CrPC either at the conclusion of trial or at the conclusion of investigation as a result of grant of "C" summary by the Magistrate upon the report submitted by police under Section 173 of CrPC. In order to understand the distinction between Sections 451 and 457 both the provisions falling in Chapter XXXIV of CrPC regarding disposal of property, relevant portion of the provisions may be usefully reproduced hereinbelow.
"451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation. - ...........
457. Procedure by police upon seizure of property. - (1) Whenever the seizure of property by any police is reported to 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 or 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) .............. "
From the opening part of Section 451, underlined for the purpose of emphasis, it is evident that the property pertaining to which the Magistrate is empowered to pass orders regarding the proper custody is basically property involved in a criminal case seized during the course of enquiry/investigation although production of such property before the court can be at any stage i.e. either during the course of enquiry or trial. So far as Section 457 of CrPC is concerned, on reference to its opening part, there is no reference to any enquiry, investigation or trial pertaining to the property, seizure of which is reported by the Police Officer to the Magistrate. On the contrary, subsequent part "such property is not produced before a Criminal Court during an enquiry or trial" clearly confirms that the property regarding custody of which the Magistrate is empowered to pass orders for proper custody is the property not involved in any criminal proceeding at any stage from enquiry till trial.
On reading Section 457 in isolation an argument may be advanced that if the seizure of the property is only reported but the property is not produced before the Magistrate, the Magistrate will have to pass order under Section 457 of CrPC. Such an argument cannot be sustained if Sections 451 and 457 are considered together. If such an argument is to be accepted, we will be leaving the control of exercise of judicial powers of the Magistrate at the mercy and will of the investigating officer e.g. if the investigating officer seizes property, such as goods truck or say an elephant as the stolen property and merely reports about seizure as the same cannot be produced in the court of Magistrate nor kept in the malkhana of the Magistrate because of its size, the property cannot be said to be property not produced before the criminal court, during an enquiry or trial. Anything seized, as a result of enquiry/investigation into the complaint must be deemed to have been produced before the criminal court as soon as the investigating officer reports the seizure of such property to the Magistrate. In Smt.Basava Vs. State of Mysore and
another, Apex Court observed:-
" A production before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the Court by passing an order regarding the custody of the articles. Where the Magistrate, after having been informed that the articles have been produced before the Court directs the Sub-Inspector to keep them with him in safe custody, to get them valued and verified by a goldsmith, the articles are undoubtedly produced before the Court and become custodia legis." Section 452 empowers the Criminal Court to pass final orders regarding disposal, destruction, confiscation or delivery as it thinks fit, when an enquiry or trial is concluded. Therefore, property seized during enquiry / investigation into complaint of an alleged offence must always be deemed to be property produced before Criminal Court and having become custodia legis. Therefore, whether the Magistrate passes an order regarding proper custody of the property under Section 451 of CrPC or Section 457 of CrPC, should be guided by the test, whether the property is involved and seized during enquiry, investigation of a crime and is required to be produced before the criminal court during the course of trial. Physical non production of the property before the criminal court, either during the trial or during earlier stages, will not take away the jurisdiction of the Magistrate to deal with the property in exercise of the powers conferred by Section 451 of the CrPC and subsequently under Section 452 at the conclusion of the trial. That the seizure of the property is only reported by the Police Officer and that he property is not physically produced before the Court is certainly not the test to determine whether Section 451 or Section 457 of the CrPC would be the empowering provision for Magistrate to deal with application regarding proper custody of the property.
Section 457 would be applicable only when the police have seized the property without being in the midst of any enquiry or the investigation into alleged offence. The clause "such property is not produced before the criminal court during an enquiry or trial" for all practical purposes must, therefore, be read as, "such property is not involved and required to be produced before the criminal court during the enquiry or trial."
Thus, there is no region where the provisions empowering Magistrate to pass orders regarding proper custody of property seized by police, i.e. Sections 451/452 on one hand and Section 457 on the other side can overlap. Sections 451/452 come into play in cases of properties seized by police during the course of enquiry or investigation of an alleged offence and therefore, property becomes custodia legis as soon as seized. Section 457 applies in cases of properties seized by police which are not linked with complaint of an offence received earlier and therefore, not likely to be produced before Criminal Court for the purpose of enquiry or trial.
7. In view of distinction as above, it is difficult to swallow the contention of Advocate Shri Bilolikar that earlier order dated 14.2.2002 was an order under Section 457 of CrPC and therefore, the impugned order amounts to review and is illegal. Such an arguments is required to be rejected as devoid of any merits. On the contrary, earlier order being order under Section 451 of CrPC the Magistrate is obliged to suo motu pass the final orders pertaining to custody of the property when he may consider "C" summary for conclusion of the enquiry and investigation. In fact, even the impugned order is an order under Section 451 of CrPC because even in this order, the Magistrate has expected respondent No.1 to execute a bond and also undertaking to produce the vehicle before the Court if required. The final order would follow under section 452 of CrPC on conclusion of trial but in the present case, on conclusion of findings of the learned Magistrate on the report submitted by police for "C" summary.
8. The impugned order, therefore, calls for no interference. The application is dismissed.
Rule discharged.
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