MOHAMMAD YOUSUF Vs. ABDUL AHAD SHAH

JUDGEMENT

(1.) ONE. Malik Abdul Ahmad Shah hereinafter called the complainant' filed a complaint against Mohammad Yousuf and others hereinafter called 'the accused' in the court of Sub Judge, indicial Magistrate 1st Class Shopian under Section 379. CR. P. C. After recording the statement of the complainant and his one witness, the learned Magistrate issued process against the accused and contemporaneously, on the application of the complainant, also issued a search warrant under Section 96 Cr. P. C. for the recovery of Jeep No. 517/jka. which was alleged to be the subject-matter of the theft. Subsequently, one of the accused namely. Mohammad Akram. filed an application for the release of the jeep in his favour which was scanted by the trial magistrate who passed the following order: The seized property shall be released in favour of the applicant on proper Superdnama. Aggrieved by this order the complainant went in revision to the Sessions. Judge Anantnagh. The learned Sessions Judge held that the order was bad in law in as much as- (i) is was passed without notice to the complainant: (ii) it was contrary to the decision of a Single Judge of this Court in Anwar Dar v. Gulla Dar Cri Revn. No. 13 of 1971 decided on 23-12-1971 Jandk. He did not however choose to make a reference to this Court on the ground that the complainant had moved an application before the trial Magistrate claiming a hearing and review of the order. He, therefore, sent the case back to the trial magistrate and directed him to pass fresh orders in the matter. Not satisfied with this order the accused have come up in revision to this Court.

(2.) THE authority of a criminal court to make an order for the custody and disposal pending inquiry or trial of any property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence is traceable to Section 516-A. Cr. P. C. which reads: When any porperty regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy or natural decay or if it is otherwise expedient so to do the court may. after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Once an order is made under this section the court becomes functus officio in the matter and cannot entertain a fresh prayer for the same relief unless and until the order has been set aside. In other words the court has no power to review an order made under this section, for there is none given by the Code of Criminal Procedure nor can one be found in the absence of a direct statutory provision. On the other hand the principle of law inferable from Section 369 of the Code of Criminal Procedure is to the contrary. That section provides that the judgment of a criminal court is final, so far as that court is concerned and cannot be reviewed or altered except where it is otherwise provided by the Code or any other law for the time being in force or for purposes of correcting clerical errors. The word 'judgment' may imply the decision in a trial terminating in the conviction or the acquittal of accused and as such the section may not in terms apply in respect of final orders like the one made under Section 516-A Cr. P. C. which do not amount to judgments in trials but the general principles on which the section is based would apply and such orders cannot be reviewed or altered by the court which passed them. In that view the order passed by the trial magistrate in the instant case unqualified as it was, could not be reviewed or reconsidered by it. The, position would be somewhat different if the order were Qualified in the sense that it was subject to the objections of the party adversely affected thereby in which case the court could perhaps legitimately reconsider the matter after hearing such party for an order passed in that way can be considered to be an interim order subject to confirmation or modification after hearing the parties and not one made finally under the section. It may be that the circumstances of urgency necessitate the passing, of an ex party order under Section 516-A Cr. P. C. but such an order should always be subjected to the objections of the Dart adversely affected thereby which, when considered a final order should be made by which the earlier provisional order may either be confirmed or else suitably varied, The order in the instant case was never so made by the trial magistrate. The learned sessions Judge was therefore in error when he assumed that the order could be reviewed or reconsidered by the trial magistrate. As such the ground taken by the learned Sessions Judge could not be a justifiable one for his refusing to make a reference to the High Court, when in his opinion, the order was bad in law In any case now that the matter has come up before this Court, it can examine for itself if the order made by the trial magistrate was proper. This is what I propose to do in the lines which follow. It is no doubt true that Section 516-A Cr. P. C. gives wide discretion to a magistrate but such discretion must be exercised judicially and not arbitrarily or capriciously. That cannot be so unless the parties claiming an interest in the seized property have been heard in the matter. The necessary requirement for an order under the section to be a valid order therefore is that it should be passed after notice to the parties adversely affected thereby The section may not expressly so provide, but as rightly pointed out by the learned Sessions Judge reliving on the decision reported as there is in the eve of law the necessary implication that the parties adversely affected should be heard before any order is made under this section. The order made by the learned trial magistrate clearly falls short of this requirement and appears to have been passed in a most careless and cavalier manner. The order cannot therefore be considered to be a valid order in the eve of law.

(3.) TO the extent as aforesaid no fault can be found with the judgment of the learned Sessions Judge. He has however gone a little further and seemingly suggested that in no case can the property which is the subject-matter of theft, be given over to the custody of the accused. In this he seems to have been influenced by the judgment of a single judge of this Court in Cri. Revn. Petn. No. 13 of 1971 decided on 2312-1971 (J. andk.) in which the learned single Bench observed as follows: No doubt a criminal court has power to pass an interim order regarding the custody of the property in respect of which there is an allegation that it has been used in the commission of an offence but to return the stolen property to the accused at the interim stage when the trial of the accused is going on does not appear to be a sound proposition. These observations have been made in the peculiar circumstances of that case where the subject-matter of theft were almonds which are not easily identifiable like other commonplace articles. This made it difficult to determine prima facie as to who. amongst the rival claimants was entitled to the possession thereof This cannot be true about every property the interim disposal whereof is in issue. Each case will be governed by its own facts and circumstances and it cannot be laid down as a broad proposition of law that in no case can the custody of the seized property be given to either the accused or the complainant pending disposal of the main case. Section 516-A contains no such restriction nor can one be read between the lines. In the case of a motor vehicle, for example, the registration of the vehicle in the name of one party may be a ground for giving the interim custody to him as rightly argued by the learned Counsel for the accused reliving on the decisions reported as and unless the other party is able to establish his superior title or claim over it. The suggestion, as aforesaid, made by the learned Sessions Judge is not. therefore, well founded.