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Haru and ors. Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1980CriLJ762; 1979MPLJ616
AppellantHaru and ors.
RespondentState of Madhya Pradesh
Cases ReferredBadaku Joti v. State of Mysore
Excerpt:
.....known to them, appeared before the magistrate and claimed that the stock of wheat which was recovered from their possession should be returned to them because it belonged to them. in the present case, since the seizure was not by any police officer, the provisions of section 457 were inapplicable and the entire proceeding taken by the magistrate were bad in law being beyond jurisdiction and, as such, non est......exercise of the powers conferred on the sdo (c) by virtue of the provisions of the madhya pradesh wheat stock requisitioning order, 1973, made by the state government by virtue of the powers under the essential commodities act. the provisions of the control order referred above authorised the sdo(c) to requisition the stock of wheat which may be in excess of 20 quintals. at the time of seizure of the respective portions of the stock from their possession, each of the applicants made a clear statement before the sdo (c) that the said stock of wheat did not belong to them and actually belonged to one baijnath who had kept the same in their house. it appears that in order to avoid the requisitioning and the consequences of breach of the control order, baijnath. when asked by the sdo (c).....
Judgment:
ORDER

J.P. Bajpai, J.

1. The unusual and peculiar facts giving rise to this revision are that the Sub-Divisional Officer (Civil)', Pichhore. happened to seize the total stock of 101 quintals of wheat from the possession of the present applicants. The seizure was effected in exercise of the powers conferred on the SDO (C) by virtue of the provisions of the Madhya Pradesh Wheat Stock Requisitioning Order, 1973, made by the State Government by virtue of the powers under the Essential Commodities Act. The provisions of the control order referred above authorised the SDO(C) to requisition the stock of wheat which may be in excess of 20 quintals. At the time of seizure of the respective portions of the stock from their possession, each of the applicants made a clear statement before the SDO (C) that the said stock of wheat did not belong to them and actually belonged to one Baijnath who had kept the same in their house. It appears that in order to avoid the requisitioning and the consequences of breach of the control order, Baijnath. when asked by the SDO (C) found it convenient to say that the said stock of wheat did not belong to him. Being faced with this situation that the persons from whose possession it was recovered did not own the same and Baijnath, the person, who was pointed out by them to be the real owner, also disowned the huge stock of wheat, the officers of the Revenue Department reported the matter to the Collector. In earlier proceedings it was held that no action could be taken in respect of the aforesaid stock of wheat in accordance with the provisions of Section 6A of the Essential Commodities Act. Under these circumstances, the Collector thought it proper to direct the SDO (C) to deal with the property as unclaimed property. The SDO (C) made a report to the Magistrate having jurisdiction in the local area purporting to be one under Section 457 of the old Code for necessary directions to keep the property at the disposal of the State Government, if there was no claimant of the same. The Magistrate entertained the said report made by the SDO (C) and issued a proclamation as required by the provisions of Section 457(2) of the Code, On issuance of the proclamation, the present applicants, for the reasons best known to them, appeared before the Magistrate and claimed that the stock of wheat which was recovered from their possession should be returned to them because it belonged to them. The Magistrate directed that the stock of wheat be returned to them. The Magistrate totally ignored the vital circumstances that earlier all these very applicants had denied the ownership of the stock of wheat before the SDO (C) in their statement recorded by him and specifically stated that the wheat belonged to Baijnath. Baijnath also did not claim the wheat to be his own either before the SDO (C) of during the proceeding taken by the Magistrate in accordance with the provisions of Section 457/458 of the Code.

2. Being aggrieved by the said order, the State preferred an appeal purporting to be one under the provisions of Sub-section (2) of Section 458 of the Code before the Sessions Court. The sessions Court took into consideration the undisputed relevant and vital circumstances that these very applicants had already denied the ownership of wheat. They had made false claim according to their convenience before the Magistrate by saying that the wheat belonged to them. Under these circumstances, the Sessions Court set aside the order made by the Magistrate and since Baijnath also had not claimed the stock of wheat, passed an order that the property shall remain at the disposal of the state.

3. It would be significant to mention that since the property involved was stock of foodgrains subject to speedy and natural decay, the same had already been sold by auction and the amount had been deposited in the Government Treasury. Thus, by virtue of the order made by the Sessions Court in the appeal, the applicant could not get the amount of the price recovered on disposal of the stock of wheat. Being aggrieved by the same, the applicants have preferred this revision before this Court.

4. During the course of hearing it was pointed out by the learned Counsel appearing for the State and also by the learned Counsel of the applicants themselves that actually speaking the entire proceeding taken before the Magistrate and the consequent appeal before the Sessions Court were without jurisdiction inasmuch as the provisions of Section 523 of the old Code were undisputedly not applicable to the present case. The reason shown was that since In the present case, admittedly, the property was not seized by any police officer, the provisions of Section 457 of the new Code were not attracted and the Magistrate had no jurisdiction to any Inquiry and to pass any order regarding the disposal of the stock of wheat merely on the report of the SDO (C). It was not disputed that the property had been seized by the SDO (C) and was not a seizure by any police officer under any provision of the Code. It is also not disputed that the property in question did not form the subject matter of any Inquiry or trial In a criminal prosecution before a criminal court.

5. The expression 'Police officer' used in Section 523 of the old Code or in Section 457 of the new Code cannot be construed so as to include officers of other department e. g. the SDO (C) in the present case, despite the fact that such officers might have been conferred with certain powers of a police officer in accordance with the provisions of the control order of the Essential Commodities Act in the matter of search and seizure. The conferral of such powers under a particular enactment is for certain specific purposes. The same does not make the officer concerned a police officer.

6. The observations made by the Supreme Court in the case of Wazir Chand v. State of Himachal Pradesh : 1954CriLJ1029 , support the aforesaid view about the applicability of the proceedings under Section 523 of the old Code corresponding to Section 457 of the new Code. In the aforesaid case, their lordships observed that where the seizure was not covered by Sections 51, 96, 98 and 165 of the Code of Criminal Procedure then in force, the provisions of Section 523 of the Code were not attracted. It was further observed that since the fundamental rights of the person concerned were involved, relief could be given by involving the writ jurisdiction. Similarly, in the context of deciding the applicability of Section 25 of the Evidence Act the Supreme Court had an occasion to deal with the meaning of the term 'Police officer' for deciding whether the customs officer could be a (Police officer) for the purposes of the said section in the case of State of Punjab v. Barkat Ram : [1962]3SCR338 . Their lordships observed, that though the word 'police officer' may not be construed in a narrow sense but the expression (police officer) however, could not have such a wide meaning so as to include the officers of the department on whom certain police powers, are conferred.

It was also observed that the duties of the Customs Officers were very much different from those of the police officers, and their possessing certain powers, which may have similarity with those of police officers for the purpose of search and seizure would not make them police officers. Similar was the view taken in the case of Badaku Joti v. State of Mysore : 1966CriLJ1353 .

7. It is apparent that the Magistrate who passed the original order had not received any charge-sheet. The property in question was not produced or reported to him in connection with any prosecution as a subject matter of inquiry or trial for any offence. Under these circumstances from the proceedings taken by the Magistrate, it is also apparent that the Magistrate issued a proclamation as contemplated by Section 457(2) of the new Code, held an inquiry as provided by Section 458 and made the order purporting to be one under Section 458 of the Code. The provisions of Section 457 refer to only such property which had been mentioned in that section. In the present case, since the seizure was not by any police officer, the provisions of Section 457 were inapplicable and the entire proceeding taken by the Magistrate were bad in law being beyond jurisdiction and, as such, non est. Consequently, the proceedings in appeal before the Sessions Court also suffer with the same defect.

8. This revision, is therefore, disposed of by setting aside the order of the Magistrate and also that of the Sessions Judge. The applicants are left to pursue and prosecute their remedy before the appropriate forum according to law, if so advised. The amount which had been recovered on disposal of the stock of wheat and credited into the Government treasury shall be held by the State Government till the applicants or any other claimant get their rights established for the return of the property or refund of the price thereof by a competent Court.


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