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Yousoof Marakair Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 211 of 1966
Judge
Reported in1969CriLJ757; (1968)2MysLJ511
ActsCode of Criminal Procedure (CrPC) , 1889 - Sections 516, 516-A, 517, 517(1), 519, 523, 523(2), 524, 524(1), 526 and 529; Constitution of India - Articles 4, 261 and 261(1)
AppellantYousoof Marakair
RespondentState of Mysore and anr.
Excerpt:
.....code, 1889 - revision petition against order dismissing petitioner's application for possession of scooter - scooter originally belonged to 2nd respondent who filed complaint when it was lost - subsequently scooter found abandoned and seized by police - tahsildar and administrative second magistrate sold scooter in public auction to petitioner - in light of precedent where property found to be stolen property and at same time found to have been purchased by another person in good faith for value, whether from private person or in public auction by order passed under section 524, person entitled to possession of same is person who originally lost possession of property in consequence of theft and other person who subsequently purchased property is only entitled to be compensated - order..........made a report requesting the court to hand over possession of the scooter to the complainant. the magistrate passed an order on 21-4-1966 giving the custody of the scooter to the second respondent conditionally. before that order was given effect to, the petitioner filed an application claiming possession of the scooter. on 25-4-1966, the application filed by the petitioner was dismissed, and the previous order was given effect to. this revision petition is directed against the order dismissing the petitioner's application for possession of the scooter.5. questions for decisions are :--1. whether the order handing over possession of the scooter to the second respondent is the one passed under section 516-a of the cr.p.c. or under section 523 of the cr.p.c. 2. whether this court has no.....
Judgment:
ORDER

1. The above revision petition arises out of the order passed by the Additional First Class Magistrate, Civil Station, Bangalore, in Criminal Miscellaneous Petition No. 8 of 1966 regarding the disposal of scooter which was seized from the petitioner, to the second respondent-complainant Dr. Ajit Kumar Singh or Bowring Hospital.

2. Facts in brief are these:--

3. The scooter in question belonged to the second respondent (complainant). On 3-9-1965, it was lost at the Bowring Hospital at Bangalore. Immediately after the scooter was lost, the second respondent filed a complaint before the Commercial Street Police who registered a case for an offence of theft in Crime No. 262/65. Investigation was being conducted by the police of the Commercial Street Police Station. In the meanwhile, on 10-11-1965, the scooter was found deserted near Viranchipuram. The police of Viranchipuram found the scooter abandoned on the road and seized it and produced it before the Tahsildar and Administrative Second Magistrate, Vellore, on 12-11-1965. The Tahsildar and Administrative Second Magistrate sold the scooter in public auction for the sum of Rs. 1350/- on 28-2-1966 after notifying it in the District Gazette, but before the expiry of six months as required by law. The petitioner purchased it in the said public auction.

4. On information received from the Police of Viranchipuram the Commercial Street Police seized the scooter on 18-4-1966 in Vellore from the petitioner and produced it before the Additional First Class Magistrate's Court on 19-1-1966. The scooter was kept in charge of the Police. On 20-4-1966, the sub-Inspector made a report requesting the Court to hand over possession of the scooter to the complainant. The magistrate passed an order on 21-4-1966 giving the custody of the scooter to the second respondent conditionally. Before that order was given effect to, the petitioner filed an application claiming possession of the scooter. On 25-4-1966, the application filed by the petitioner was dismissed, and the previous order was given effect to. This revision petition is directed against the order dismissing the petitioner's application for possession of the scooter.

5. Questions for decisions are :--

1. Whether the order handing over possession of the scooter to the second respondent is the one passed under Section 516-A of the Cr.P.C. or under Section 523 of the Cr.P.C.

2. Whether this Court has no jurisdiction to question the validity of the order passed by the Tahsildar and Administrative Second Magistrate of Vellore?

3. Who is entitled to the possession of the scooter in question?

6. Mr. Subbiah, learned Advocate for the petitioner, firstly contended, I think rightly, that provisions of Section 516-A of the Cr.P.C. apply only when property is produced before a Criminal Court during enquiry or trial. In the instant case, the matter is still under investigation, and admittedly no chargesheet has been filed. Therefore, this case does not attract the provisions of Section 516-A of the Cr.P.C. The State Public Prosecutor contended that the provisions of Section 523 Cr. P.C. are attracted to the case and that in fact, the application was made by the petitioner under Section 523 of the Cr.P.C. and, therefore, he urged that the order in question must be deemed to be the one passed under Section 523 of the Cr.P.C., though the order states that it was passed under Section 516-A of the Criminal Procedure Code. My attention was invited to the petition dated 26-4-1966 filed by the petitioner wherein it is written in ink that the application was made under Section 523 of the Criminal Procedure Code, but the order sheet dated 2-6-466 in the case discloses that the petition was made under Section 516 of the Code of Criminal Procedure. The note in the order-sheet appears to have been entered by the Bench Clerk and he must have entered the provisions of Section 516 of the Criminal Procedure Code wrongly. Mr. Subbiah was not in a position to deny that the application was made under S. 523 of the Cr.P.C. Further, it is clear from the order passed by the Magistrate that he has placed reliance on the tax token which disclosed the name of the owner and which was attached to the scooter, and has come to the conclusion that it is proper and equitable that the scooter should be handed over to the second respondent, Mr. Ajit Kumar Singh of Bowring Hospital. Mr. Subbiah found fault with the order contending that the Criminal Court under the provisions of chapter XLVIII relating to disposal of property could decide the right to possession and not the ownership. He, therefore, contends that the order of the Magistrate is bad in law. Now here in the course of the order of the learned Magistrate declared that the second respondent is the owner. The Court has relied upon the tax token which discloses the name of the owner while ordering custody of the scooter to the second respondent. The question whether a person is entitled to possession of the property under Section 523 of the Code of Criminal Procedure, cannot be decided without having reference to the ownership of the property. Therefore, there is no substance in the contention of Mr. Subbiah. Under Section 523 of the Code of Criminal Procedure, the Criminal Court is required to find out the person entitled to possession of property suspected to have been stolen or found in circumstances which create suspicion of commission of any offence. This is what the learned Magistrate has done in this case. Therefore, I am of the opinion that the order passed in the case is one passed under Section 523 of the Code of Criminal Procedure and not under Section 516-A of the Cr.P.C.

7. As regards the second question, the learned State Public Prosecutor firstly questioned the validity of the order passed by the Tahsildar and Administrative Second Magistrate, Vellore, in selling the scooter in question in public auction on 28-2-1966. He pointed out two serious infirmities in the proceedings culminating in the action sale of the scooter in question. Firstly, he pointed out that under Section 523(2) of the Cr.P.C. the Magistrate was required by law to give six month's time from the date of proclamation requiring any person who may have a claim thereto, to appear before him and establish the same. Admittedly, in this case, six months' time had not been given. The date of proclamation is dated 5-2-1966 as can be seen from a copy of the North Arcot District Gazette, Vellore, produced in the case. It has been sold in public auction on 28-2-1966. Sri Subbiah also concedes that the six months' time was not given. Thus, it seems the sale conducted by the Tahsildar and Administrative Second Magistrate does not satisfy the requirement of Section 523(2) of the Cr.P.C. as contended by the learned State Prosecutor. The other infirmity pointed out by the State Prosecutor is that under Section 524(1) Cr.P.C. where no claimant appears within six months, the property may be sold under the orders of a Magistrate of the First Class empowered by the State Government, in this behalf. The designation 'Tahsildar' clearly shows that the said powers of the Magistrate of the First Class. Mr. Subbiah did not bring to my notice any Madras Amendment to Section 524(1) Cr.P.C. investing the Tahsildar and Administrative Second Magistrate with powers under Section 524 Cr.P.C. In my opinion, the latter infirmity in proceedings is also not saved under the provisions of Section 529(h) of the Cr.P.C. which lays down:--

'If any Magistrate not empowered by law to do any of the following things, namely:--

* * * * * (h) to sell property under Section 524 or Section 526...........

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of this not being so empowered.'

8. I am unable to say that the Tahsildar and Administrative Second Magistrate of Vellore has passed the order to see the scooter in question in good faith, because the said order contravenes the provisions of Section 523(2) which empowered the Magistrate to issue a proclamation, as required under that Section only if the person entitled to the possession is unknown. As can be seen from the search list produced before the Tahsildar and Administrative second Magistrate by the police of Viranjipuram, there was a tax token attached to the scooter which gave certain details which would enable the Magistrate to know the person who is entitled to possession. The Tahsildar and Administrative Second Magistrate appears to have totally ignored the contents of the tax token while issuing a proclamation under Section 523(2) of the Cr.P.C. Therefore, as contended by the learned State Public Prosecutor, the proceedings before the Tahsildar and Administrative Second Magistrate Vellore, are plainly invalid for want of jurisdiction, as they do not satisfy the requirements of Section 523(2) and Section 524 (1) of the Criminal P. C. Therefore, I agree with the view of the learned Magistrate that the auction has become a proceeding of doubtful validity.

9. But the argument of Mr. Subbiah in this context is that trial court has no jurisdiction to question the validity of the order passed by the Tahsildar and Administrative Second Magistrate of Vellore, which is a Tahsil under the Madras State. He wants that full faith and credit should be given to the act of the Tahsildar and Administrative Second Magistrate of Vellore by this Court as required under Article 261 of the Constitution of India, which reads as under:--

'261 (1). Full faith and credit shall be given throughout the territory of India to public acts, records and Judicial proceedings of the Union and of every State.

(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.

(3) Final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.'

Mr. Subbiah relying upon clause (1) of Art. 261 urged that full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State as laid down in the Constitution. The intendment of the provisions of the above article is to regulate the effect to be given to public acts, records and judicial proceedings of the Union and of every State in order to avoid conflict of laws as between the States of between a State and the Union. But, they confer no new jurisdiction on the courts of any State in India. We have analogous provisions in Art. 4 of the Constitution of U. S. A. which says that 'full faith and credit shall be given in each State to public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effects thereof. 'While interpreting the said Article in a decision in Collis P. Huttington v. Elizabeth C. Attril, See (1892) 146 US 657, the United States Supreme Court referring to an earlier decision in Thompson v. Whitman, (1874) 18 Wall 457 = 21 Law Ed 897, has laid down that 'the provisions of Constitution gave no effect to judgments of a Court which had no jurisdiction to the subject matter or the parties. And they confer no new jurisdiction on the Courts of any State and therefore, do not authorise them to take jurisdiction of suit or prosecution of any penal nature that it cannot, on settled rules of public and international law, be entertained by the judiciary of another State that that in which the penalty was incurred ' (See Wisconsin v. Pelican Ins. Co., (1888) 127 US 265 at p. 290 = 32 Law Ed 239 at p. 243. The decision in 18 Wall 457 = 21 Law Ed 897, referred to in the above decision lays down the law as under. The Head note by Mr. Justice Bradley who delivered the opinion of the Court reads as under:--

'Neither the constitutional provision that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, nor the Act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the Court by which a judgment was rendered.

The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the Court jurisdiction: and if it be shown that such facts did not exist, the record will be a nullity notwithstanding it may recite that they did exist.

Want of jurisdiction may be shown, either as to the subject-matter or the person, or in proceedings in rem as to the thing.'

The learned Judge in the course of the Judgment quotes the principle stated by Chief Justice Marshall:--

''Upon principle', says Chief Justice Marshall, 'it would seem that the operation of every judgment must depend on the power of the Court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the Court should be inducted to condemn,. as prize of war a vessel which was never captured, it could not be contended that this condemnation operated a change of property. Upon principle, then, it would seem that, to a certain extent, the capacity of the Court to act upon the thing condemned arising from its within, or without, its jurisdiction as well as the constitution of the Court, may be considered by that tribunal which is to decide on the effect of the sentence.'

(Rose v. Himely, 4 Cranch, 269).

Further, his Lordship observed in the course of the judgment as follows:--

'On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the 4th article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.'

It is clear from the interpretation given by the United States Supreme Court that the provisions that full faith and credit shall be given in each State to public acts, records and judicial proceedings of every other State, does not prevent an inquiry into the jurisdiction of the court by which a judgment was rendered or passed. Want of jurisdiction may be shown either as to the subject-matter or the person, or proceedings in rem as to the thing. Further, such a judgment rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provisions relating to full faith and credit given to public acts, records and judicial proceedings of every other State. Therefore, in my opinion, the provision of Art 261(1) of the Constitution of India is no bar to inquiry into the jurisdiction of the Court of any State in which a judgment was rendered in another State in a collateral proceeding. There is no bar to question the jurisdiction of the Court, either as to the subject matter or the person or proceedings in rem as to the thing, In the instant case, there is no question of any judgment on a criminal case, but it is an act of Executive Magistrate concerning the disposal of unclaimed property. Therefore, what holds good to a judgment passed in a criminal court applies equally to an act of an Executive Magistrate.

10. Therefore, the power of this Court is not barred under Article 261(1) of the Constitution of India, to consider the jurisdiction of Tahsildar and Administrative Second Magistrate, Vellore, to pass an order of sale of the scooter in the public auction. As already stated above, the proceedings related to the sale are plainly invalid for want of jurisdiction. Therefore, the contention of Mr. Subbiah that this court has no jurisdiction to consider the validity of the order passed by the Tahsildar and Administrative Second Magistrate of Vellore under Article 261(1) of the Constitution of India fails.

11. Now turning to the third question: Both the State Prosecutor and Mr. Masilamani for the second respondent contended that the Court has decided, in this case, that the scooter should be handed over to the second respondent on the ground that the second respondent is entitled to the possession of the property. The State Public Prosecutor placed reliance upon the decision of Roshan Lal L. Malik Ram v. State of Punjab, wherein the words 'person entitled to possession' found in Sections 517 (1) and 519 are interpreted as under:

'Sub-section (1) of Section 517 of the Code of Criminal Procedure does not refer to any question of title other than question of title to such property based on possession. What the court has to decide at the conclusion of an enquiry or trial is this; who is 'entitled o possession' of the property?

Section 519 provides a very clear indication of the meaning which the legislature intended to attach to the expression 'entitled to possession' as used in Sections 517 and 519 of the Code of Criminal Procedure, which is that where property is found to be stolen property and at the same time found to have been purchased by another person in good faith for value, the person 'entitled to possession' of the same, in such a case, is the person who originally lost possession of the property in consequence of theft or misappropriation and the other person who subsequently purchased the property, is only entitled to be compensated. That expression has the same meaning in both the Sections.'

Mr. Subbiah contended that in the Punjab case, the stolen articles were not sold by a Magistrate, but they were sold by the person to whom they were entrusted. In the instant case, he pointed out that the scooter was found by Viranjipuram Police as an unclaimed property, and was produced before the Tahsildar and Administrative Second Magistrate of Vellore, who ordered proclamation in the District Gazette; and when nobody claimed the scooter, the same was ordered to be sold by the said Magistrate, and it was purchased by the petitioner in the public auction held on 28-2-1966. I do not see force in the argument of Mr. Subbiah. In cases where Section 523 of the Cr.P.C. applies, the Magistrate may, if the person entitled to the possession thereof is unknown, detain it, and, shall, in such cases, issue a proclamation specifying the articles of which such property consists and require 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. If no such person within such period establishes his claim to such property, according to the provisions of Section 524 Cr.P.C., such property shall be at the disposal of the State Government and may be sold under the orders of any one of the Magistrates enumerated in the said section and empowered by the State Government in that behalf. The words 'such property shall be at the disposal of the State Government' do not amount to an order of confiscation. Therefore, the property is kept at the disposal of the State Government and sold under orders of certain officers for the benefit of the true claimant. Hence, the order under Section 524(1) Cr.P.C. does not determine the right to the seized article finally. The seizure of the article is only an act for the benefit of the rightful claimant. It is only necessary for him to establish his title on the strength of which he would be entitled to claim the articles. Therefore I am in respectful agreement with the ratio of the decision in, and hold that where the property found to be stolen property and at the same time found to have been purchased by another person in good faith for value, whether from a private person or in public auction by an order passed under Section 524 Cr.P.C., the person entitled to the possession of the same is the person who originally lost possession of the property in consequence of theft or misappropriation and the other person who subsequently purchased the property is only entitled to be compensated, or claim refund of the money in deposit at the disposal of the Government. In that view of the matter, I am opinion that the order passed by the Additional First Class Magistrate, Bangalore, handing over the scooter in question to the second respondent is in accordance with law and does not call for interference. The petitioner, if so advised, can take such steps as are necessary to recover the bid amount from the Tahsildar and Administrative Second Magistrate Vellore.

12. For the reasons stated above, the impugned order does not call for interference. The petition is dismissed.

13. Petition dismissed.


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