JUGAL KISHORE Vs. BABULAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 18th November, 1981 passed by the Judicial Magistrate 1st Class No. 2, Jodhpur in Criminal Case No. 206/30. By his order aforesaid, the Judicial Magistrate in exercise of his power under section 457 Cr. P. C. has directed that the scooter which has been placed in the custody of non-petitioner Babulal under order dated 6th February, 1980 may remain in the custody of the said non-petitioner.

(2.) THE facts giving rise to this revision petition are briefly as under. During the course of investigation of case No. 27, dated 2nd February, 1980 under sections 341, 323, and 427 I. P. C. the S. H. O. , P. S. Udai Mandir, Jodhpur found a scooter bearing Engine No. 109321 and chasis no. ox22/oxoox81551 in the possession of the non-petitioner Babulal and on cheking it was found that there was no registration certificate and insurance certificate for the said scooter and that the scooter did not bear the front and the rear number plates. THE scooter was, therefore, seized under section 129a of the Motor Vehicles Act. By the order dated 6th February, 1980, the Judicial Magistrate 1st Class No. 2, Jodhpur gave the interim custody of the said scooter to non-petitioner Babulal subject to the condition that he would not operate the same on the road and would produce the same whenever required to do so and would not transfer the same to any person. On 10th August, 1980, a challan in respect of offences under sections 22/127, 94/125, 56/107 and 129a of the Motor Vehicles Act was submitted by the police in the court of Judicial Magistrate No. 2, Jodhpur. THE Judicial Magistrate by his order dated 14th October, 1980 dismissed the said challan on the ground that the period of limitation for filing the said challan as prescribed under section 468 (2) (a) Cr. P. C. was six months and that the challan had been filed after the expiry of the aforesaid period of six months. On 4th December, 1980, the petitioner, Jugal Kishore, submitted a petition under section 457 Cr. P. C. before the Judicial Magistrate 1st Class, No. 2, Jodhpur, whereby the petitioner prayed that the scooter which had been seized from the possession of non-petitioner Babulal may be delivered to the petitioner for the reason that the petitioner is the owner of the said scooter and is entitled to the possession of the same and that the non-petitioner has no right over the said scooter. THE aforesaid application of the petitioner was opposed by the non-petitioner who filed a reply dated 17th Aug. 1981, wherein it was submitted that the rival claims of the petitioner and the non-petitioner had been considered by the court when it passed the interim order dt. 6th Feb. 1980 and by the said order, the non-petitioner was found entitled to the custody of the said scooter and in view of the aforesaid order, the application filed by the petitioner should be dismissed. In his aforesaid reply, the non-petitioner also pleaded that the non-petitioner had obtained the possession of the scooter legally and there is nothing on record to show that the non-petitioner had committed any offence and, theie-fore, the non-petitioner was legally entitled to the possession of the scooter. THE Judicial Magistrate by bis order dated 12th November, 1981, rejected the application of the petitioner and directed that the scooter should be allowed to remain in the custody of the non-petitioner. THE Judicial Magistrate was of the view that no offence had been disclosed with regard to the aforesaid scooter and since the scooter was recovered from the possession of the non-petitioner, the non-petitioner was entitled to the possession of the same. THE Judicial Magistrate has placed reliance on the decision of this Court in Kailash Chandra vs. Parasmal (1 ).

(3.) THE provisions with regard to the disposal of property are contained in Chapter XXXIV (sections 451 to 459) of the Code of Criminal Procedure, 1973 (New Code ). Section 451 empowers a criminal court to pass an appropriate order for the interim custody of the property pending the conclusion of the enquiry or trial, and, if the property is subject to speedy and natural decay, or, if it is otherwise expedient so to do, for the sale or disposal of the said property. Section 452 makes provision with regard to the disposal or delivery of property at the conclusion of the enquiry or trial. Sub-section (1) of section 457 deals with cases where the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during an enquiry or trial and empowers the Magistrate to make such order as it 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 cannot be ascertained, respecting the custody and production of such property. Sub-section (2) of section 457 further provides that if the person entitled to possession of the property is not known the Magistrate may detain it and may 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. Section 458 provides that if no person establishes his claim to such property within the period specified in sub-section (2) of section 457 and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceedings of such sale shall be dealt with in such manner as may be prescribed. A perusal of the aforesaid provisions shows that a distinction has been drawn between an interim order passed under section 451 and a final order passed under section 452 and 457. While passing a final order under sections 452 and 457, it is required that the property should be delivered to the person entitled to the possession thereof, but there is no such requirement in respect of an interim order passed under section 451. This shows that while passing an interim order for the custody of the property under section 451, the court is not required to hold an enquiry as to whether person to whom the property is to be delivered, is entitled to the possession thereof or not but while passing a final order under sections 452 and 457, the court is required to ascertain whether the person to whom the property is to be delivered, is entitled to the possession thereof or not. This would mean that the mere fact that the property was recovered from the possession of the person, who is claiming the delivery of the same would, by itself, not justify the passing of final order under sections 452 and 457 for delivery of the said property to him unless the court finds that the said person was entitled to the possession of the same. Section 458 also supports this inference in as much as in cases where the person in whose possession the property was found is unable to show that it was legally acquired by him, it empowers the Magistrate to direct that the property shall be at the disposal of the State Government and this contemplates an enquiry into the question whether the person in whose possession the property was found had legally acquired it or not. It can, therefore, be said that the mere fact that the property was recovered from his possession would not entitle a person to an order for delivery of the property under sections 452 and 457 and if the court finds that the said person had not legally acquired the possession of the said property and was not entitled to the possession thereof, it may refuse to pass an order for delivery of the property to him even though it had been recovered from his possession.