LOURENCO ROCHA Vs. EUCLIDAS JOAO RODRIGUES

JUDGEMENT

(1.) This is a reference made by the learned Sessions Judge under Section 439 of the Code of Criminal Procedure.

(2.) The facts leading to this reference broadly stated are that a complaint was filed by complainant Euclidas Joao Rodrigues against accused Lourenco Rocha and accused Rita Liberata Mascarenhas under Sections 379 and 447 of the Indian Penal Code. The case of the complainant was that the accused had removed paddy from his field and thereby committed theft and also criminal trespass. The learned Magistrate after examining the complainant passed an order dated 13th October, 1967 directing that a bailable warrant should be issued against accused Lourenco Rocha under Sections 447 and 379 of the Indian Penal Code and also directing the police that on the basis of the warrant issued by him the paddy lying in the house of the accused Lourenco Rocha should be seized and handed over to the Sarpanch of Ambaulim. Accused Lourenco Rocha felt aggrieved by this order and filed a criminal miscellaneous application wherein it was prayed that the decision regarding seizure of the paddy be set aside as it has not the support of law. The learned Sessions Judge treated this application as a revision application under Section 435 of the Code of Criminal Procedure. He accepted the contention of the learned Counsel appearing on behalf of the accused Lourenco Rocha and made a reference to this Court that the order passed by the learned Magistrate directing seizure of the paddy and its delivery to the Sarpanch is not a legal order and, therefore, it may be set aside. The order of the learned Magistrate directing seizure of the paddy was later confirmed by him by his order dated 10th November, 1967.

(3.) Shri Navelkar, learned Counsel for the applicant-accused Lourenco Rocha, contends that the order passed by the learned Magistrate dated 13th October, 1967 directing seizure of the paddy from the house of the applicant-accused and its deposit with the Sarpanch of Ambaulim has not the support of law. He supports the reference made by the learned Sessions Judge. Shri Bosco Vasconcelos, learned Counsel for respondent-complainant Euclidas Joao Rodrigues, cites Section 98 (1) of the Code of Criminal Procedure in support of the legality of the order passed by the learned Magistrate. This section, to the extent it is material for the present purpose, provides that if a Magistrate of the First Class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, he may by his warrant authorise any police officer above the rank of a constable to take possession of such property which the police officer reasonably suspects to be stolen. This section. I am afraid, is not attracted, for the simple reason that in the entire complaint or in the examination of the complainant there is no allegation that the house of the accused Lourenco Rocha was used for the deposit or sale of stolen property. The warrant issued by the learned Magistrate was addressed to the Police Station Quepem; it does not authorise any police officer above the rank of a constable to take possession of the property used for the deposit or sale of stolen property. The emphasis is on the words "is used for the deposit or sale of stolen property."