P V JOSEPH Vs. STATE

JUDGEMENT

(1.) Petition under S.482 of the Criminal Procedure Code, II of 1974, to quash an order passed by the Chief Judicial Magistrate, Ernakulam, and to give the petitioner, Joseph, custody of two film boxes, seized in the case.

(2.) Joseph had approached the Judicial Magistrate, Second Class, Ernakulam, with a complaint that one Rajan bad cheated him of the film boxes. After they were seized in that case be moved for their custody. After hearing him and Rajan, the Magistrate allowed him to have their custody. Thereafter Rajan filed a petition before the Chief Judicial Magistrate, Ernakulam, complaining that Joseph had cheated him and committed breach of trust in respect of the identical film boxes. The Chief Judicial Magistrate ordered investigation of that complaint. During investigation police seized the film boxes from Joseph. Then, both Joseph and Rajan, by two separate petitions, applied before the Chief Judicial Magistrate for their custody Relying on Balaji v. Andhra Pradesh 1976 CriLJ 1461 and Nanno Mal and others v. Sher Mohammad Khan 1976 CriLJ 1783 the Chief Judicial Magistrate found that under S.457 of the Criminal Procedure Code order regarding custody of property could not be passed before completion of investigation and relying on Ambika Roy v. State of West Bengal 1974 CriLJ 1002 that an order under that section could not be passed when the property seized was not produced before court, and dismissed the petitions The correctness of that order is now challenged.

(3.) In Balaji's case 1976 CriLJ 1461 the Andhra Pradesh High Court held that the power under S.457 could not be invoked by a Magistrate who could not hold enquiry or trial of the case in which the property was involved and in Nanno Mal's case 1976 CriLJ 1783 the Allahabad High Court held that it could not be invoked during investigation and that if there was enquiry or trial before completion of the same. Both the decisions said that one distinction between S.457 of the new code and the corresponding S.523, of the predecessor code, V of 1898, was that while S.523 authorised Magistrate to pass order even during investigation S.457 did not authorise that. Two mote distinctions were rioted in Balaji's case 1976 CriLJ 1461 . They were that while under S.523 police officer seizing property had a duty to report to court about it there was no such duty cast on him under S.457 and that while under S.523 if the police officer who seized property and reported it to Magistrate kept the property in his possession Magistrate could not pass an order, under S.457 the Magistrate could do it.