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Balaji Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ1461
AppellantBalaji
RespondentState of Andhra Pradesh
Excerpt:
.....the provisions of this code and such property is not produced before a criminal court during an enquiry or trial' now employed in section 457 of the new code. the requirements namely the non-production of the property, during enquiry or trial should be satisfied so as to enable the magistrate to exercise the power under section 457. 22. if section 457 corresponds to old section 523 the very same wording as employed in section 523 could have been provided without any additions or alterations in section 457 of the new code. it has been said that one of the safest guides to the construction of sweeping general words which are hard to apply in their full literal sense is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them and..........to produce the property seized by any police officer in connection with any offence during trial or enquiry and the question of keeping it in his possession without producing the same before the magistrate during enquiry or trial does not arise at all and hence section 457 should be deemed to be a provision corresponding to section 523 of the old code which deals with the power of the magistrate to pass orders of disposal of the property even during the stage of investigation or before the enquiry or trial is started. i do not find any force in this contention. it is not incumbent upon the prosecution to produce the property seized by the investigating officer in every case. if the investigating agency would come to know after investigation that the properties seized by him do.....
Judgment:
ORDER

Punnayya, J.

1. In this revision the scope and ambit of the provisions of Section 457 (new) Cr. P.C. require consideration.

2. A car ADY 3893 was seized by the Investigating agency from the possession of the accused. The State filed a case which was exclusively triable by a Sessions Judge and the abovementioned car, according to the prosecution, serves as a piece of evidence for the prosecution as it was piloting the lorry that was transporting the illicit liquor and the accused obstructed the investigating officer from intercepting the lorry and as such the investigating officer had to open fire and the bullets had hit the dicky and the petrol tank of the car and thus the car provides important material in support of the prosecution case,

3. The petitioner claiming himself as the owner of the car filed a petition before the Magistrate on whose file the case is pending as P.R.C. for the delivery of the car to him on the ground that the car shall be spoiled if it is not in use, that the investigating agency has wrongly seized the car, that it was not seized at the place of offence and that the petitioner undertakes to produce the car as and when required by the Court for the purpose of identification.

4. The learned Magistrate held that he had no jurisdiction to hold preliminary enquiry under the new Code before committing the case to the Sessions Court and as such he has no jurisdiction to pass any order for delivery of the property and the provisions of Section 457, Cr. P.C. have not given the power to the Magistrate who has no power to hold enquiry or trial to order for delivery of the property that was seized and hence the petition is not maintainable.

5. Sri Rama Sarma, learned Counsel for the petitioner, assails this order. He contends that Section 457 corresponds to Section 523 (old). According to him, the Code has given power to the Magistrate under Section 523, Cr. P.C. to deliver the property seized by the police even before the enquiry or trial and hence the Magistrate is given the same power under Section 457 of the new Code and as such the Magistrate committed error in holding that he has no power under Section 457 to pass orders for delivery of property or that the petition is not maintainable.

6. Sri Srinivasa Rao, the learned Public Prosecutor, contends that the provisions of Section 457, Cr. P.C. will be applicable if the property seized by the police is not produced before the Magistrate during enquiry or trial and as the Magistrate in this case has no power to hold enquiry or trial except committing the case to the Sessions Court without any such enquiry, he has no power to pass any order of disposal of the property under Section 457, Cr. P.C.

7. In order to appreciate the scope and ambit of the provisions of Section 457 of the new Code it is necessary to examine the relevant provisions of the old Code that deal with the disposal of the properties involved or appear to be involved in a criminal proceeding.

8. Chapter XLIII of the Old Code deals with the disposal of the property at various stages. Section 516-A deals with the power of the Magistrate to pass order as to who is the person that is competent to have the custody of the property involved or appears to be involved in any criminal case pending the conclusion of enquiry or trial if it was produced before the Criminal Court during enquiry or trial on the ground that the property is subject to speedy or natural decay or that it is otherwise expedient so to do. In such a case, the Court after recording such evidence as it is necessary may order it to be sold or otherwise disposed of.

9. Section 517 deals with the power of the Magistrate after the enquiry or trial is concluded to dispose of the property. This section gives the power to the Magistrate after the enquiry or trial is concluded to make such order as he thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of the property produced before him or in his custody in respect of which any offence appears to have been committed or which has been used for the commission of offence.

10. Section 523 gives the power to the Magistrate to make such order as he thinks fit respecting the disposal of the 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, where the seizure, by any police officer, of property taken under Section 51 or suspected to have been stolen, or found under circumstances' which creates suspicion of the commission of any offence shall be forthwith reported to the Magistrate.

11. Thus the provisions of the above three sections give the power to the Magistrate to dispose of the property involved or appears to be involved in any criminal proceeding at three different stages: Firstly, before the enquiry or trial if the property was seized by the investigating officer (under Section 523, Cr. P.C.), Secondly, during the enquiry or trial before the Magistrate if the property is produced before the Court (under Section 516-A, Cr. P.C.) and thirdly, after the enquiry or trial is concluded if the property was produced before it or was in its custody (under Section 517, Cr. P.C.).

12. Now the relevant provisions under the new Code that govern the matters and the stages relating to the disposal of the property may be examined.

13. Chapter XXXIV deals with the disposal of the property involved or appears to be involved in a criminal proceeding. Section 451 deals with the power of the Court for custody or disposal of the property if it was produced before the court during enquiry or trial and the Magistrate is given the power under this section to make such order as he thinks fit for the proper custody of such property pending the conclusion of enquiry or trial, if the property is subject to speedy or natural decay or if it was otherwise expedient so to do and in such a case the Court may after recording such evidence as it thinks fit necessary and order it to be sold or otherwise disposed of.

14. Section 451 therefore, corresponds to Section 516-A of the Old Code. There is no difference between these two sections either about the stage or about the property or about the manner in which the disposal has to be ordered.

15. Section 452 of the new Code deals with the power of the Magistrate for disposal of property after the conclusion of the trial. Under this section the Magistrate can order for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to the possession thereof or otherwise of any property produced before him or in his custody if it was involved or appears to be involved in any offence after the enquiry or trial is concluded.

16. This section is analogous to Section 517 of the old Code. In between these two sections (Sections 452 and 517) there is no difference either about the stage or about the property or about the manner in which the disposal has to be ordered.

17. Section 457 of the new Code deals with the power of the Magistrate for the disposal of the property when the seizure of the property by any police officer is reported to the Magistrate and such property is not produced before the court during enquiry or trial.

18. If the police officer keeps in his possession the property seized under Section 51 or 102 and does not report to the Magistrate about the seizure of such property the Magistrate cannot pass any order of disposal under Section 457, Cr. P.C. If, on the other hand, the police officer reports to the Magistrate about the seizure of such property, but keeps in his possession without producing it before the Magistrate even during enquiry or trial, the Magistrate can pass under this section orders of disposal. Under Section 523 of the old Code if the police officer seizes the property under Section 51 or the property alleged or suspected to have been stolen or found under the circumstances which creates suspicion of the commission of the offence, he is under legal obligation to report to the Magistrate forthwith and then only the Magistrate exercises the power given to him under Section 523 to pass orders of disposal. In Section 457 of the new Code, no such legal obligation is imposed on the police officer even if he seizes any property under Section 51 or even if he seizes the property alleged or suspected to have been stolen under Section 102. There is this difference between the old section and the new section. The other difference is that in the old section, the Magistrate has power to pass orders of disposal even before the enquiry or trial of the offence in respect of which the property was seized, after the police officer reported to the Magistrate about the seizure, while in the new section the Magistrate has no power to dispose of the property before enquiry or trial even if the report is made to the Magistrate by a Police Officer about such seizure of the property: There is yet another difference: under Section 457 of the new Code, the Magistrate has the power to pass orders of disposal in case of a property seized by the police officer and reported to the Magistrate about such seizure but keeps it in his possession without producing it before the Magistrate during enquiry or trial while no such power was given to the Magistrate under Section 523 of the old Code.

19. Those differences can be clearly seen from the expression 'whenever a seizure of the property by any police officer is reported to a Magistrate under the provisions of this Code and such property is not produced before a Criminal Court during an enquiry or trial' now employed in Section 457 of the new Code. The presence of this new expression in Section 457 and the omission of the same in Section 523 of the old Code gives rise to the conclusion that Section 457 of the new Code does not correspond to Section 523 of the old Code.

20. Sri Rama Sarma, the learned Counsel for the petitioner, contends that it is incumbent on the part of the prosecution to produce the property seized by any police officer in connection with any offence during trial or enquiry and the question of keeping it in his possession without producing the same before the Magistrate during enquiry or trial does not arise at all and hence Section 457 should be deemed to be a provision corresponding to Section 523 of the old Code which deals with the power of the Magistrate to pass orders of disposal of the property even during the stage of investigation or before the enquiry or trial is started. I do not find any force in this contention. It is not incumbent upon the prosecution to produce the property seized by the investigating officer in every case. If the investigating agency would come to know after investigation that the properties seized by him do not relate to the offence of which the trial was going on, the investigating agency can keep them in his possession without producing them before the Magistrate even during enquiry or trial.

21. When the expression 'and such property is not produced before a Criminal Court during enquiry or trial' as provided in Section 457 of the new Code it should be understood that the power of the Magistrate for disposal of the property is restricted to the property not produced during enquiry or trial. The requirements namely the non-production of the property, during enquiry or trial should be satisfied so as to enable the Magistrate to exercise the power under Section 457.

22. If Section 457 corresponds to old Section 523 the very same wording as employed in Section 523 could have been provided without any additions or alterations in Section 457 of the new Code. When this expression 'whenever the seizure of the property by a police officer is reported to the Magistrate and such property is not produced before a Criminal Court during enquiry or trial' is purposely added in Section 457 by the Legislature, Is clear enough to show that Section 457 deals with the power of the Magistrate to pass orders of disposal with regard to the property about which the police officer reported to the Magistrate after seizure but not produced before him during enquiry or trial.

23. Maxwell in hie Treatise on the Interpretation of Statutes (12th Edition) at page 58 states on the subject 'Beading words in context: The Statutory Aspect' that:

Passing from the external aspects of the statute to its contents, it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself. It has been said that one of the safest guides to the construction of sweeping general words which are hard to apply in their full literal sense is to examine other words of like Import in the same instrument, and to see what limitations must be imposed on them and if it is found that a number of such expressions have to be subjected to limitations and qualifications, and that such limitations and qualifications are of the same nature, that circumstances form a strong argument for subjecting the expression in dispute to a like limitation and qualification, (i) Individual words are not considered in isolation but may have their meaning determined by other words in the section in which they occur.

24. It is therefore, clear that all the words provided in Section 457 should be considered and appreciated with reference to the language used in the old Section 523. Hence the non-production of the property during enquiry or trial as provided in Section 457 of the new Code assumes much importance while considering the difference between the provisions of Sections 457 and 523. Thus I have no hesitation to hold that Section 457 is different from Section 523.

25. It is true that there is no provision in the new Code corresponding to Section .523 of the old Code. That is a lacuna in the new Cr. P.C. since the Magistrate cannot pass an order of disposal in cases of the properties during the stage of investigation though such power was given to the Magistrate under Section 523 of the old Code. It is for the Legislature to consider this lacuna and add a provision analogous to Section 523. In view of the marked difference between the new section, and the old section the court cannot hold that what was applicable to Section 523 of the old Code is applicable to Section 457 of the new Code. While in the old Code there is no provision giving power to the Magistrate to pass orders of disposal of the property seized by the police officer, but not produced before the Court during enquiry or trial though the police officer reports to the Magistrate after seizure and that lacuna is not rectified by inserting the provision of Section 457 in the new Code, the new Code again suffers from the infirmity when a provision corresponding to Section 523 is not provided.

26. Sri Rama Sarma cited a decision of the Kerala High Court in State v. C.K. Assainar : AIR1969Ker151 . In that case it was held that:

Under Section 5 (1) of the Code of Criminal Procedure, all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code. The expression 'otherwise dealt with' occurring in this sub-section evidently includes disposal of property under Chapter XLIII of the Code. The same expression 'otherwise dealing with', occurs in Sub-section (2) as well; and that expression can only have the same meaning as in Sub-section (1). Therefore, if a special statute makes provision for the disposal of the property involved in an offence under that statute, such provision must displace the relevant provisions of the Code, The Criminal Procedure Code is a general Code laying down the procedure in criminal cases generally; and if by a special statute an offence is created and provision is also made for the disposal of the property involved in such offence, there cannot be any objection for that provision being applied to the property involved in that offence. Therefore, the view of the Munsif-Magistrate that Section 523 of the Code applies can hold good only if there are no provisions for disposal of property in the Essential Commodities Act and the Kerala Rice (Regulation of Movement) Order.

27. I do not think that this decision applies to the case on hand, in view of the facts and legal position mentioned above.

28. Sri Rama Sarma also cited a decision of the Supreme Court in Bhim Sen v. State of U.P. : 1955CriLJ1010 . The Supreme Court held:

The Jurisdiction of the Criminal Courts under Section 5, Criminal P. C. is comprehensive. That section enjoins that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with 'according to the provisions hereinafter contained.' To the extent that no valid machinery is set up under the U. P. Panchayat Raj Act for the trial of any particular case, the jurisdiction of the ordinary criminal court under Section 5, Criminal P. C. cannot be held to have been excluded. Exclusion of jurisdiction of a Court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where there is no adequate machinery for the exercise of this jurisdiction in a specific case, it cannot be held that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.

29. That decision was given while dealing with a case where the trial of the case was barred by the ordinary Criminal Court, and in that context their Lordships gave that decision. Hence this decision also does not help the petitioner,

30. Sri Rama Sarma also cited a decision of this Court in Venkateswara Reddy v. Narasamma (1974) 2 Andh WR 153. My learned brother Venkatrama Sastry, J. has considered the scope and application of Sections 516-A, 517 and 523 of the old Code. He did not have the occasion to consider the scope and effect of Section 457 of the new Code in the said decision though he has considered particularly the scope and effect of Section 523. I have given reasons for my finding that Section 457 is not analogous to Section 523 and hence this decision also does not help the petitioner.

31. In the case on hand we have to consider whether the Magistrate has committed any error in holding that he has no jurisdiction to pass order of disposal on the ground that the has no power to hold enquiry or trial since the offence is exclusively triable by a Sessions Judge though he has got the power to commit the case to the Sessions Court.

32. There is no dispute on the question that the Magistrate has no power to hold enquiry or trial under the new Criminal Procedure Code though he has got power to commit the ease to the Sessions Court In such a case he is not given the power to invoke the provisions of Section 457 of the Code in this case and pass orders of disposal in view of the requirements of Section 457 of the new Code mentioned above. Thus I find no difficulty to hold that the Magistrate IB not given the power to dispose of the property since under Section 457 he has no power to hold enquiry or trial in the case in which the property is involved and the offences are exclusively triable by a Sessions Judge and as such he cannot hold any enquiry or trial except that he has got the power to commit the case to the Sessions Court. Under these circumstances, I am not able to agree with the contentions raised by Sri Rama Sarma, learn. ed counsel for the petitioner. Thus the finding given by the Magistrate that he has no jurisdiction under Section 457, Cr. P.C. to dispose of the property involved in this case and the petition is therefore not maintainable is perfectly correct, proper and legal and the has not committed any error of law in passing such an order. Thus I find no merits in the petition. The petition is, therfore, dismissed.


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