ZAHEER AHMED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition is filed challenging the order dated 6 7 1981 passed by the Judicial Magistrate, I Class, II Court, Bel- gaum, in private Complaint No. 30 of 1981, directing that the interim custody of the lorry bearing registration No. MYT 5253 be given to respondent 2 on his executing an indemnity bond in a sum of Rs. 50,000 and furnishing one surety for the like sum and also further directing that respondent 2 should not change the shape, model or any part of the vehicle pending disposal of the case. The few facts relevant for disposal of this petition are as follows : On the filing of the aforementioned private complaint by respondent 2, the Judicial Magistrate, I Class, Chikodi, passed an order under S. 156 (3) of Cr.PC (to be hereinafter referred to as the Code), and also directed issue of search warrant. Ultimately, the search warrant was executed and the vehicle was produced in the said Court. Thereafter respondent 2 the complainant and one Zaheer Ahmed, who is the petitioner in this case, filed applications before the Magistrate praying for interim custody of the vehicle. Each one of them produced documentary material in support of his claim for interim custody. Then on the application filed before the Chief Judicial Magistrate, Belgaum, in Crl. Mise. Case No. 43 of 1981, for transfer of the case from the Court of the Judicial Magistrate, I Class, Chikodi, to any other Court, the Chief Judicial Magistrate, Belgaum, withdrew the case and made over the same to the Court of the Judicial Magistrate, I Class, II Court, Belgaum. It is appropriate to state at this stage that the learned Magistrate has in the impugned order, gone minutely into the documentary material produced by each one of them and has also concluded that the complainant had made out a prima facie case and established better title or superior title than the registered owner viz., the present petitioner. Thereafter he has proceeded to pass the order already narrated.

(2.) The first question to be gone into is whether under the facts and circumstances of the case as narrated above, the provisions of S. 457 or S. 451 of the Code apply. Plain reading of S. 457 of the Code makes it evident that it does not apply to the facts and circumstances of the case, because it deals with a report of seizure in regard to p operty seized by the police vis-a vis the person entitled to possession thereof. Production of the property before the Court pending enquiry or trial, is not dealt with in S. 457 of the code. S. 451 of the Code reads as follows :

(3.) It has been already seen that on the filing of the complaint by respondent 2, the then Magistrate passed an order under S. 156 (3) of the Code i.e.. for investigation and report by the police, keeping the complaint pending on his file. He was awaiting the report of the police. On receipt of the report, question of taking cognizance of the offences would have arisen. The offences complained of are under Ss. 392 and 403 of IPC. These facts and the position in law lead to the conclusion that the Magistrate had directed the police to investigate and report to him so as to enable him to take further action regarding taking cognizance of both or any one of the offences etc. Hence, what was pending before the Magistrate fails within the ambit of 'inquiry'. Therefore, it will have to be held that the said truck was produced before the Magistrate pending an inquiry into the private complaint filed by respondent 2 This conclusion makes the provisions of S. 451 of the Code applicable. When any property is produced before the Court and S. 45J of the Code applies, the Court would be seized with the custody of the property. It has to decide whether it should keep the property in its own custody or leave it in the custody- sense being possession of another person, depending on the nature of the property. The fact that the property is an animal like bullock, buffallo and so on may make it inconvenient for the Court to retain it fa its own custody. If the property is a jewel or a sword or a knife or a rifle or a gun, the Court may find it convenient to retain the same in its own custody without handing over possession to any one else. The Court is responsible for the safe custody of the property. It is the duty of that Court to see that the property remains in the very condition when it was produced before it till the final decision in the case and a final order in regard to disposal of property is passed. To achieve this object, absolute discretion is allowed to the Court. Only when the property is subject to speedy and natural decay or it is otherwise expedient so to do, the Court has power, after recording such evidence as it thinks necessary, to pass an order that it should be sold or otherwise disposed of.