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State of Mysore Vs. Laxmi Trading Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1963CriLJ269
AppellantState of Mysore
RespondentLaxmi Trading Co. and ors.
Excerpt:
.....of section 516-a of the criminal procedure code and (2) that the order quoted above clearly indicates that there has been an interference by the court at the stage of investigation by the police into a cognizable case......sen gupta v. the state : air1957cal379 , wherein it was held as follows;the proceedings before the police investigation are proceedings over which the police alone have full control, and neither the magistrate nor even the high court has power to interfere with such proceedings.following the above decisions i hold that the order of the j learned magistrate amounts to an interference in the investigation of the case and therefore on that ground also it is liable to be set aside.8. before leaving this matter it is proper for ma to mention that the investigation of this case has taken years and years. that appears to be a very unsatisfactory state of affairs. trust that after this order is passed the investigating officers will complete the investigation at the shortest time possible and.....
Judgment:
ORDER

Mir Iqbal Husain, J.

1. An application was filed before the District Magistrate of Bellary in Criminal Misc. Petition No. 8 of 1961 by two petitioners (1) Sree Lakshmi Trading company represented by its partner T. Hanumanna and 2. R. Shankarappa, under the provisions of Sections 516-A, 517 and 523 of the Cr.P.C. praying that the sandalwood billets that are kept in custody and seized as per order of the District Magistrate in November, 1960 be ordered to be handed over to them. They relied on certain documents in proof of their contention that they had the requisite permission from the Forest Authorities as well as the Revenue Authorities for cutting those billets from patta lands which the first petitioner purchased. An unregistered sale deed dated 1-8-1960 by which the second petitioner Shankarappa sold all his rights in 345 sandalwood trees standing on the patta lands in favour of the first petitioner, viz., Sree Lakshmi Trading Company for a sum of Rs. 15.000/-was also produced,

2. Proceedings in respect of these sandalwood trees were taken by the Forest Authorities as early as 11-11-1960. The Conservator of Forests, Bellary Circle filed an application for the issue of a search warrant against the second respondent Shankarappa on the ground that there were suspected cases of billets of sandalwood cut from the Government Forest and kept in his house. The District Magistrate issued a search warrant and further ordered seizure of the billets. The report of the Forest Range_ Officer dated 16-11-1960 indicates that these billets were' seized. On 17-11-1960 the Forest Range Officer of Hospet made a report to the Magistrate concerned indicating that forest offences were committed in respect of those billets, and prayed for their detention. By the order of 20-11-1960 the prayer of the Forest Range Officer was granted and the billets were detained in safe custody pending investigation of the case. This is the previous history leading to this petition. When years thereafter no action was taken by the authorities in respect of those billets, an application was filed for the return thereof, before the District Magistrate, Bellary.

3. The District Magistrate enquired Into the matter and found that the relevant provision that applied to the facts of the case was Section 516-A of the Criminal Procedure Code. He found that the investigation of the case had taken years for completion. According to him 'the retention of the property pending investigation does not mean the retention of the property for any number of years'. Therefore in his opinion that was a fit case where an order was called for as follows:

I, therefore, order that period of three months is given to the respondents to send up the case or to submit a final chargesheet against the accused if they have committed an offence and in case the respondents do not send up any case within that period, the property will have to be returned to the petitioners, and I further order that the property which are seized by the respondents shall be returned to the petitioners within three months if no case is sent up against the accused.

4. The validity of this order is challenged before me by the learned Government Pleader. He contends (1) that no such order could be passed under the provisions of Section 516-A of the Criminal Procedure Code and (2) that the order quoted above clearly indicates that there has been an interference by the Court at the stage of investigation by the police into a cognizable case. Per contra the learned advocates for the respondents support the order of the learned Magistrate and urge in particular that in the circumstances of the case when there had been such undue delay it is but right that there should be an interference by the Magistrate for safeguarding the rights of the private individuals.

5. Section 516-A runs as follows:

When any property 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.' (The underlining (here into) is by me.)

The point for consideration is whether there has been an inquiry or a trial, already started. Only if such an inquiry or trial has started the Magistrate will have jurisdiction under Section 516-A otherwise not. Inquiry is defined in Section 4(k) as follows:

'Inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.

As contrasted to this, Section 4(1) deals with investigation and that is defined as follows:

'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Investigation is to be done by the police and they are the proper authorities to conduct the same. It is their duty to ascertain the facts and circumstances of the case, collect the evidence, arrest the suspected offender, etc. All these pertain to their jurisdiction. After the investigation is completed, the next stage starts, viz., the stage of inquiry or trial which takes place before the Magistrate. From the records, it is abundantly clear that the stage of inquiry much less trial has not been reached in this case. The decision of the Bombay High Court in Ramchetsing Arjunsing v. Deoji Kalyanji AIR 1942 Bom 42, lays down that the investigation by the police under Section 202 is not an inquiry within the meaning of the Code, and therefore when the Magistrate forwards the complaint to the police for investigation and report under Section 202 there is no inquiry or trial pending.

6. The next point is whether the learned Magistrate is right in giving orders to the police who are investigating the case 'to send up the case or to submit a final chargesheet against the accused if they had committed an offence and in case the respondents do not send up any case within that period the properties will have to be returned to the petitioners.' As stated previously the Jurisdiction of the Magistrate starts after the investigation. It is then that the need for him, to pass any proper order as the merits of the case call for, arises. To pass an order before the investigation is complete to my mind appears to be improper and premature. It amounts to interference in the investigation of the case which completely falls within the functions of the police. Such an interference by the court is not called for.

7. Reliance was placed by the learned Government Pleader on a decision of the Privy Council in the case of Emperor v. Nazir Ahmad . In that case also the matter was pending investigation by the police. An application under Section 561-A was filed in the meanwhile. The High Court granted that application. Their Lordships of the Privy Council held that interference can be made only when a charge is preferred before the court. This is how their Lordships put it.-

Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.

This case had been followed by the Calcutta High Court In the case of Parul Bala Sen Gupta v. The State : AIR1957Cal379 , wherein it was held as follows;

The proceedings before the police investigation are proceedings over which the police alone have full control, and neither the Magistrate nor even the High Court has power to interfere with such proceedings.

Following the above decisions I hold that the order of the J learned Magistrate amounts to an interference In the Investigation of the case and therefore on that ground also it is liable to be set aside.

8. Before leaving this matter it is proper for ma to mention that the investigation of this case has taken years and years. That appears to be a very unsatisfactory state of affairs. trust that after this order is passed the Investigating Officers will complete the investigation at the shortest time possible and put up the case before the Magistrate as early as possible. The learned Government Pleader also gives an assurance that this matter will be expedited and the investigation will be completed early.

9. In the result this petition is allowed.


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