PRADYOTA KUMAR SAHANI Vs. MALAYA KISHORE NAIK

JUDGEMENT

(1.) The petitioner has filed ICC Case No. 4 of 1994 in the Court of the sub-Divisional Judicial Magistrate, Sundergarh, against the opposite parties alleging commission of offence under Section 379 of the Indian Penal Code in respect of a Scooter bearing registration No.CR-15-A-2728. During the pendency of the said case, the petitioner filed an application for directing the Inspector-in-Charge, Sundergarh, to produce the Scooter for safe custody in Court. The said application having been rejected, the present revision has been filed.

(2.) In the impugned order the Court below has rejected the application on the ground that the Scooter had not been seized in connection with ICC Case No. 4 of 1994 and had been seized vide Station Diary Entry No. 303 dated 14-1-1994 and had been left in zima of one Birakishore Acharya. The Court below therefore, held that it had no jurisdiction to pass any order regarding disposal of the scooter in question as the Magistrate was not in seisin of the case in which the scooter had been seized.

(3.) The power of police officer to seize property emanates from Section 102 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr. P. C.'). Under Section 102(3) of the Cr. P. C. a police officer is required to report forthwith the factum of seizure to the Magistrate having jurisdiction and where the property seized cannot be conveniently transported to the Court, he may give custody of such property to any person in zima and such zimadar is required to execute a bond undertaking to produce the property before the Court as and when required. In the present case, it is not clear if the seizure of the property has been reported to the Magistrate as required under Section 102(3) of the Cr. P. C. and it is also not clear if any other case is pending before the Magistrate. However, pursuant to an order passed by the Magistrate in the present case, the Inspector-in-Charge has submitted a report dated 1-9-1994 wherein it has been indicated that the scooter in question had been seized by the police from the possession of the complainant vide Station Diary Entry No. 303 dated 14-1-1994 and, therefore, it was given in firm to one Birakishore Acharya. Prima facie it appears after seizing the scooter, the police officer who seized the Scooter has not reported the factum of seizure to the Magistrate as required under Section 102(3) of the Cr. P. C. If, in fact, it has been so reported in connection with any other case, the application filed by the complainant for safe custody of the Scooter made in the present complaint case may be taken to be infructuous and it would be open to the complainant to make an appropriate application in the other case, if any, in which the seizure of the property has been reported. If, however, the seizure of the property has not been reported to the concerned Magistrate, it must be taken that the seizure of the property hs been reported to the Magistrate in ICC Case No. 4 of 1994 which is now pending before the Sub-Divisional Judicial Magistrate, Sundergarh, and is such an event the application of the present petitioner should be considered and disposed of the accordance with law. Since the report of the police indicates that the Scooter has been given in Zima to one Birakishore Acharya (the alleged owner of the scooter, as per the report of the police) it would be necessary for the Megistrate to issue notice to said Birakishore Acharya before disposing the application of the present petitioner. According, the impugned order is set aside and the matter is remanded to the sub-Divisional Judicial Magistrate, Sundergarh, for fresh disposal in accordance with law keeping in view the aforesaid observations made above. This exercise should be completed by the Magistrate as expeditiously as possible, preferably within a period of four months from the date of receipt of the record.The Criminal Revision is accordingly disposed of. Order accordingly.