RABINARAYAN PANIGRAHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Criminal Revision has been filed against the order dated 122-1989 passed by the Judicial Magistrate, 1st Class, Birmaharajpur in Criminal Misc. case No. 2 of 1989 rejecting the application of the petitioner under Section 457 (1) of the Code of Criminal Procedure as non-maintainable on the ground that the seizure of the alleged motor cycle which the petitioner wanted to take custody from the court had not been reported to the court in connection with any case.

(2.) The case raises an interested question to be answered. The short fact involved in this case is that the petitioner, who is a permanent resident of village Kotasamali and a political man had contested in the last Assembly Election from the Birmaharajpur Constituency. It was alleged that his opponent in connivance with the local police had foisted a criminal case against him to demoralize him. He was kept behind the bar during which a Rajdoot Motor Cycle bearing Registration No. O.I.S. 3866 was seized by the Officer-in-charge, Sindhol Police Station on 17-11- 1988 from his house during his absence. On being released on bail, the petitioner moved the O.I.C., Sindhol P.S. for release of the vehicle, but he was denied the same with no reason given for such denial. The petitioner thereafter had moved the Judicial Magistrate, 1st class, Birmaharajpur in Criminal Misc. Case No. 2 of 1989 under Section 457 (1) of the Code of Criminal Procedure for an order for release of the Rajdoot Motor Cycle belonging to him. It was the case of the petitioner that neither the seizure list nor the charge-sheet for the offence in connection with the Motor Cycle was seized had been submitted by the officer-in-charge, Sindhol, before the court. The learned Judicial Magistrate, 1st Class had called for the records and found that there was no allegation of commission of any offence in connection with which this Motor Cycle was seized and that no offence was reported to the Court. But the O.I.C. had admitted that one Rajdoot Motor Cycle bearing Registration No. O.I.S. 3866 which tallied with the registration book of the petitionerTs Motor cycle had been seized. The Magistrate rejected the application as non-maintainable since there was no case registered before him for the to Cycle had been seized in connection with any investigation by police for commission of an offence within his jurisdiction.Section 457 reads as follows:11457 Procedure by police upon seizure of property:(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person can not be ascertained, respecting the custody and production of such property.(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) so the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, 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.On analysis of language of sub-Section (1), it is quite clear that this Section empowered the Magistrate to pass orders for disposal of property which is seized by, the Police and has not been produced in Court during the enquiry or trial provided that the seizure of such property by the police has been reported to the Magistrate under the provisions of the Code. Section 523 of the old Code of Criminal Procedure which, by and large, corresponds to Section 457, new Code imposes a clear duty on the police to make report to Magistrate in respect of the property seized under Section 51 or alleged or suspected to be stolen or found under the circumstances which create suspicion of the commission of an offence (Reference) Section 550, old Cr. P.C.) The scope of Section 523 of the Old Code was interpreted through some judicial decisions so as to bring within its purview property also seized by the police during investigation under Sections 165 and 166 of the old Cr. P.C., but not sent to the Magistrate with a charge-sheet. But in the new Section 457 of the Code of Criminal Procedure, the first part of Section 523 of the old Cr. P.C. imposing an obligation on the police to make for the with report to the Magistrate in respect of property seized by them has been omitted. The question therefore arises as to what is the jurisdiction of the Magistrate in cases where the police have seized property but are under no obligation under any provisions of the Code to report to the Magistrate. In such cases where none of this provision casts any obligation or imposes any duty on the police to report any seizure to the Magistrate and report of seizure does not other, wise come to the know ledge of the Magistrate, the jurisdiction of the Magistrate under this Section cannot be invoked in respect of the seizure.

(3.) The word seizure as stated in the above paragraph has specific significance. The seizure must be made under the authority of law. The seizure would be lawful if in connection with any criminal offence, the property is seized by the orders of a Magistrate or seizure has been made under Sections 51, 95, 98 and 165 of the Code of Criminal Procedure. If the seizure is not done in one of the methods aforesaid the seizure amounted to an infringement of his fundamental rights, which was guaranteed to him under Articles 219 and 31 of the Constitution of India. In such event, the person can move the High Court under Article 226 of the Constitution of India for the release of the vehicle. This also finds support from the decision reported in Wazir Chand & another v. The State of Himachal Pradesh & Others. Accordingly where there has not been any allegation of commission of any offence or continuance of police investigation and the seizure has been made without any orders from a Magistrate for under any provisions of the Code of Criminal Procedure: a petition under Section 457 of the Cr. P.C. before the Magistrate for release of the goods in his favor is not contemplated. In course of argument, learned counsel for the petitioner cited three decisions and urged that if the factum of seizure is brought to the knowledge of the Magistrate even by sources other than police or the fact of seizure otherwise has come to the knowledge of the Magistrate, the Magistrate acquires jurisdiction under Section 457 Cr. P.C. to pass appropriate orders in respect of the seized property and according to the petitioner he had mentioned to the Court in his application that his vehicle was seized but the police which according to him was sufficient for the Magistrate to assume his jurisdiction under that Section and Court acted with material irregularity in rejecting the application as not maintainable. In support of his contention, learned Advocate has cited three decisions. The first one which is a recent decision of this High Court, reported in (Krushna Charan Mohanty v. State of Orissa)2. This was a case where in a G.R. Case, a truck was seized by the Investigating Officer and the petitioner had filed an application under Section 457 of the Code of Criminal Procedure for getting custody of the vehicle. In the second case, which is reported in M.S. Jaggi v. Subas Chandra Mohapatra3, the seized movable properties were seized in course of investigation in connection with the Mangalabeg Police Station case, and in the case reported in Jeshy v. The State4 on receiving complaint that the accused was reproducing cassettes in breach of copyright, the police seized certain articles including equipments purposed to have been used for making the infringed copies of the original records under the direction of the Magistrate. They were kept in police custody as directed and the case was pending investigation though no charge -sheet was filed. In all these cases, therefore, the seizure of the article by the police was either under the direction of the Magistrate or pursuant to an investigation in connection with the commission of any offence where the Magistrate was held to have power and jurisdiction to entertain his application under Section 457, Code of Criminal Procedure regarding disposal of such property of delivery of the property to the person entitled to it. In the present, case, the seizure was made by the police not pursuant to any allegation or commission of offence or the orders of any Magistrate or under any provisions of the Code of Criminal Procedure. According to the learned Addition at Standing Counsel, the motor, cycle was found inside a reserved forest and there was no claimant nearby.