M S JAGGI Vs. SUBASCHANDRA MOHAPATRA

JUDGEMENT

(1.) THIS is a revision petition to set aside the order dated 23.11.1976 passed by the S.D.J.M., Cuttack in a proceeding under Section 457, Criminal Procedure Code, registered as Misc. Case No.504 of 1976.

(2.) IN course of investigation in connection with Manglabag P.S. Case No.483 of 1976, the I.O. seized certain movable properties from the de facto possession of the opposite party and left the same in his zima. Before any final form was submitted in the aforesaid case, the opposite party filed an application under Section 457, Criminal Procedure Code before the S.D.J.M. praying for an order directing the police not to remove those seized properties from his custody until the submission of the final form. This application of the opposite party was resisted by the petitioner claiming those properties to be his. His story is that those properties were the subject -matter of a 145 proceeding (Criminal Misc. Case No.141 of 1975) in which the petitioner, the opposite party and one G.N. Mohanty were parties. Those properties were also the subject -matter of Title Suit No.38 of 1975 which had been filed by the petitioner in which Shri G.N. Mohanty was appointed receiver on furnishing security. The receiver matter was carried to this Court in M.A.133 of 1975 which was disposed of on compromise. The terms of compromise recited that the petitioner will take over charge of the restaurant with all movables contained therein and that the building with all the movables was handed over to the petitioner. The opposite party was merely a landlord in respect of the building, entitled to rent from the petitioner and had no vestige of title to the movable properties which had been seized by the police in the aforesaid Manglabag P.S. Case No.483 of 1976.

(3.) THE petitioner challenges the jurisdiction of the Magistrate to pass the impugned order as also its legality and propriety. He contends that the Magistrate can only pass orders under this section in respect of properties which have been seized in course of investigation of an offence and such seizure has been reported by the police as required by any provision of the Code, and in the enquiry or trial following investigation, the seized properties are not produced. Thus, where no charge -sheet has been submitted and the matter is still under investigation, the property seized by the police cannot be the subject -matter of Magistrate's order under this section. His next contention is that under Section 457(2), Criminal Procedure Code where a person entitled to possession is known to the Magistrate, he is to direct delivery of such seized property to him, and if such person is not known, the Magistrate may make temporary arrangement for custody of such property and then issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. As, in the instant case, the petitioner is entitled to such property under the compromise decree passed in M.A.133 of 1975 and his title to such property has also been admitted by the opposite party in various other proceedings, the Magistrate should have directed delivery of the seized property to him. Incidentally, it is also contended that when sub sections(1) of Section 457, Criminal Procedure Code confers jurisdiction on the Magistrate to make such order as he thinks fit respecting the disposal of seized property, he must not pass any order arbitrarily or as his whim dictates to him, but must pass the order according to rules of reason and justice, not according to private opinion or humour but according to law. In other words, such order must not be arbitrary and fanciful, but legal and lawful.