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Dharmachand Bandulal Gandhi and ors. Vs. the State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1977CriLJ81
AppellantDharmachand Bandulal Gandhi and ors.
RespondentThe State of Karnataka
Excerpt:
.....is contrary to the provision of section 452 of the criminal procedure code, 1973. the learned sessions judge has failed to notice the legal infirmity in the orders passed by the magistrate......the petitioners filed appeals before the sessions judge. the appeals were dismissed and the orders passed by the magistrate were confirmed.3. the only contention of mr. deshpande, learned advocate for the petitioners, is that in view of the provisions of section 4(e) of the karnataka debt relief ordinance, 1975, the proper order that was required to be passed by the magistrate was, to direct the sub-divisional magistrate to return the pledged articles to the pawn who pledged them. in this view of the matter it is argued that the magistrate was in error in exercising the general power of disposal of property conferred on him under section 452 of the criminal procedure code of 1973.4. mr. a.m. farooq, learned high court government pleader, pointed out that these accused were.....
Judgment:
ORDER

K. Bhimiah, J.

1. In these Criminal Revision Petitions the common order passed by the Sessions Judge, Belgaum regarding the disposal of property involved in certain offences is challenged by the petitioners who were convicted and sentenced by the Judicial Magistrate, First Class Chikkodi.

2. These petitioners were tried for offences punishable under Section 5 read with Section 39 of the Karnataka Money-Lenders Act, 1961 and Section 3 read with Section 18 of the Karnataka Pawnbrokers Act 1961 for carrying on money-lending and pawn broking business without possessing licences. When the accusation was read out these petitioners pleaded guilty. The Magistrate accepted the plea of guilt as voluntary and spontaneous and convicted them for the said offences and sentenced them to pay fines and in default to undergo certain period of simple imprisonment. Further the Magistrate directed the return of articles involved in those offences to the concerned owners after ascertaining the ownership from the records and other circumstances, and after the expiry of the appeal period. Aggrieved by this order of disposal of property the petitioners filed appeals before the Sessions Judge. The appeals were dismissed and the orders passed by the Magistrate were confirmed.

3. The only contention of Mr. Deshpande, learned Advocate for the petitioners, is that in view of the provisions of Section 4(e) of the Karnataka Debt Relief Ordinance, 1975, the proper order that was required to be passed by the Magistrate was, to direct the Sub-Divisional Magistrate to return the pledged articles to the pawn who pledged them. In this view of the matter it is argued that the Magistrate was in error in exercising the general power of disposal of property conferred on him under Section 452 of the Criminal Procedure Code of 1973.

4. Mr. A.M. Farooq, learned High Court Government Pleader, pointed out that these accused were convicted and sentenced for offences under the Karnataka Money-Lenders Act and the Karnataka Pawnbrokers Act. He urged that those enactments do not contain any provision for disposal of the properties involved in the offences under the provisions of those enactments. Therefore, he contended that the Judicial Magistrate who tried the cases has rightly exercised jurisdiction under Section 452 of the Criminal Procedure Code regarding disposal of properties. I agree with the contention of Mr, Farooq.

5. Chapter XXXIV of the Criminal Procedure Code, 1973 deals with the provisions relating to disposal of property. Sections 451, 452 and 457 appear in the said Chapter. As provided under Section 4(2) of the Criminal Procedure Code, 1973, all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is not disputed that in both the enactments in question there is no provision made with regard to disposal of properties involved in the offences under those enactments. If the enactments do not provide for disposal of properties involved in the offences committed under them the Magistrate gets jurisdiction to pass orders of disposal in one of the modes as laid down in Sections 451, 452 and 457 of the Criminal Procedure Code. 1973. In the instant case the learned Magistrate has exercised jurisdiction under Section 452 of the Criminal Procedure Code, 1973. Therefore, it is not possible to say that the orders passed by the Magistrate are orders passed without jurisdiction. Therefore the learned Sessions Judge has rightly affirmed the orders passed by the Magistrate and the orders passed by the learned Sessions Judge do not call for interference. All these revision petitions are therefore, liable to be dismissed rejecting the contention of Mr. Deshpande, that provision of Section 4(e) of the Karnataka Debt Relief Ordinance, 1975 is applicable.

6. In these revision petitions a further point arises for consideration. The learned Magistrate has passed the following order in respect of disposal of articles seized in these cases and it reads as under:

The seized articles in this case be returned to the concerned owners after ascertaining their ownership from the records and other circumstances, after the expiry of the appeal period.

By the above order the. Magistrate has delegated his power to some unspecified authority. It is not in accordance with law. Section 452 of the Criminal Procedure Code, 1973, which is attracted in these cases lays down that when an inquiry or trial in a criminal Court is concluded the court may make such order as it thinks fit for the disposal by delivery to any persons claiming to be entitled to possession thereof. Sub-section (3) of Section 452 of the Criminal Procedure Code, 1973, provides that delegation is available to a Court of Session and not to any subordinate criminal court. Therefore, the order of disposal of properties passed by the learned Magistrate is contrary to the provision of Section 452 of the Criminal Procedure Code, 1973. The learned Sessions Judge has failed to notice the legal infirmity in the orders passed by the Magistrate. Since the Magistrate is required to find out persons to be entitled to possession of the properties in question and this power cannot be delegated to any one else, the orders under revision are modified and that the Magistrate is directed to take the cases on file and ascertain the persons entitled to possession and order disposal by delivery to such persons.

7. With the above modification in the order under revision all these criminal revision petitions are dismissed.


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