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Ajaib Singh and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 651 of 1951
Judge
Reported inAIR1953P& H222
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439, 523, 523(2), 524 and 524(2)
AppellantAjaib Singh and ors.
RespondentThe State
Appellant Advocate Amar Nath and; Grover, Advs.
Respondent Advocate Yashpal Gandhi, Adv. for;Adv. General
DispositionRevision dismissed
Excerpt:
.....- no order forfeiting seized property to government can be passed except under section 524 which comes into play only after the claimants have failed to substantiate their claim, or if no claimants at all have come forward......nobody at the moment claimed the horses or the gold lace and they were kept by the police as unclaimed property. on the 15th of march four persons, who are the petitioners before us, made five different applications to a magistrate at amritsar claiming that the gold lace and the horses belonged to them and praying for the restoration of these things. the magistrate called for a report from the police and took evidence in support of the claim made by the petitioners. the police were also allowed to produce witnesses. after considering the evidence produced by both parties the magistrate came to the conclusion that the claim of the petitioners had not been substantiated. he, therefore, ordered that the horses and the gold lace should be forfeited to government. the concluding portion.....
Judgment:

Khosla J.

1. This case was referred to this Bench by my brother Soni for a consideration of the point whether a revision petition is competent in the circumstances.

2. The facts briefly are that on 9-3-1951, a Police party patrolling the area near the Indian border in Amritsar District took into possession a quantity of 'tilla' (gold lace) and four horses from a deserted place near a house. The Police party suspected that the gold lace had been collected at this place with the object of its. being smuggled out to Pakistan and the horses were intended for the persons who were to smuggle the gold lace to Pakistan. Nobody at the moment claimed the horses or the gold lace and they were kept by the Police as unclaimed property. On the 15th of March four persons, who are the petitioners before us, made five different applications to a Magistrate at Amritsar claiming that the gold lace and the horses belonged to them and praying for the restoration of these things. The Magistrate called for a report from the Police and took evidence in support of the claim made by the petitioners. The Police were also allowed to produce witnesses. After considering the evidence produced by both parties the Magistrate came to the conclusion that the claim of the petitioners had not been substantiated. He, therefore, ordered that the horses and the gold lace should be forfeited to Government. The concluding portion of his order reads as follows :

'Therefore, the property in question is unclaimed and must be forfeited to the Government. Accordingly it is ordered that the four horses and the 'Tilla' in question are forfeited and shall be auctioned in due course and the amount to be deposited in the Government Treasury. But the forfeited articles, i.e. the horses and 'Tilla', are to remain as they are till the time for appeal against this order has expired.'

No appeal was preferred against this order by the petitioners who were obviously the aggrieved parties, but a revision petition was presented directly to this Court, and the question at once arose whether in view of the wording of Section 524, Criminal P. C., which provides for an appeal, a revision petition lies directly to this Court.

3. Mr. Grover, who appeared on behalf of the petitioners, contended that the order of the trial Magistrate was not an order under Section 524, Criminal P. C., but an order under Section 523, and as orders under Section 523 were not appealable, the only way in which their correctness could be challenged was by way of revision. Another argument raised by him was that the Magistrate had been guilty of a material irregularity of procedure & that, therefore, even though an appeal lay against the final order a revision petition was competent in order to set right the procedural irregularity.

4. Under Section 523 any property which is 'found under circumstances which create suspicion of the commission pf an offence' may be seized by a Police officer and the seizure reported to a Magistrate. Thereupon the Magistrate may make such order as he thinks fit respecting the disposal of such property. If no one entitled to the possession of the property can be found the Magistrate may pass an order respecting the custody and production of the property. But if such a person is known the Magistrate may order the property to he delivered to him. When the person entitled to its possession is not known the Magistrate is required to issue a proclamation requiring any person who may have a claim to the property to appear before him and establish his claim within six months. If he succeeds in establishing his claim the property is to be handed ever to him, but if within the period of six months no cue appears or can establish his claim the Magistrate is required under Section S24 to order its forfeiture. Such property may be sold and the proceeds credited to Government. An order of this type is appealable under Section 524 (2). Therefore under Sections 523 and 524 when any property is found by the Police in circumstances which give rise to a suspicion that an offence has been or is about to be committed the following procedure is to be adopted-

1. Seizure of the property by the Police.

2. Report to a Magistrate. If the Magistrate knows of any one who is entitled to the possession of the property he may award it to him. If he does not, he must

3. issue a proclamation under Sub-section. 2 of Section 523, and within six months of the proclamation any person claiming the property can come forward and claim it. If no one claims it, or if the person claiming it is unable to prove his claim, the Magistrate will

4. order the property to be forfeited to Government.

5. The contention of Mr. Grover is that since the Magistrate did not issue a proclamation his order forfeiting the property to Government was illegal. It is, however, clear that the object of Sections 523 and 524 is to give an opportunity to a claimant to appear before a Magistrate and prove his claim. A proclamation is necessary only where no one conies forward to claim the property or the Magistrate does not know the identity of the claimant. Where a person comes forward of his own accord and makes a claim to the property seized by the Police no question of a proclamation can arise, and in such cases a stranger to the proceedings, who has not come forward to make a claim, may have a grievance. In the present case the aggrieved parties are the petitioners who did actually appear before the Magistrate and tried to prove their claim. They cannot say that the omission to issue a proclamation has in any way injured them or prejudiced their case. The sole object of issuing a proclamation is to inform possible claimants of the seizure of the . property. Where the seizure is actually known to the persons who claim the possession of the property and who. actually come forward to substantiate their claim no proclamation is necessary. Under Section 523 the only order which a Magistrate can pass is an order dealing with the temporary custody of (he property or an order handing over possession to the rightful claimants. No order forfeiting seized property to Government can be passed except under Section 524 which comes into play only after the claimants have failed to substantiate their claim, or if no claimants at all have come forward. Therefore it is clear that the order of forfeiture passed in this case was an order passed under Section 524, Criminal P. C., and against this order an appeal lay. The petitioners did not choose to appeal and in the circumstances it will be improper to entertain a revision petition.

6. With regard to the argument of Mr. Grover that the non-issue of a proclamation is! an irregularity which can be agitated in a revision petition, the answer must be that the omission to issue proclamation was not in this case an irregularity, and even if it were so the legality of the final order can be questioned in an appeal and so procedural irregularity does not entitle the aggrieved party to file a revision petition instead of an appeal. I am, therefore, of the view that in the present case it would be improper to entertain a revision petition, as the petitioners were entitled to file an appeal against the order under revision.

7. This revision petition must, therefore, be dismissed and I would dismiss it.

Soni, J.

8. I agree.


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