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Suraj Mohan Babu Mishra Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 21 of 1966
Judge
Reported inAIR1967Guj126; 1967CriLJ767; (1966)GLR974
ActsBombay Prohibition Act, 1949 - Sections 98(1), 98(2) and 99; Code of Criminal Procedure (CrPC) , 1898 - Sections 516-A, 517, 523 and 523(1); Code of Civil Procedure (CPC), 1908
AppellantSuraj Mohan Babu Mishra
RespondentState of Gujarat
Appellant Advocate K.J. Sethna, Adv.
Respondent Advocate H.M. Chokshi, Govt. Pleader
Excerpt:
.....- first information report - sections 66 and 81 of bombay prohibition act, 1949 and section 523 of code of criminal procedure, 1898 - certain person arrested in respect of offences under section 66 (b) and vehicle seized - applicant made prayers before judicial magistrate (jm) seeking release of vehicle truck - prayers rejected - revision application before high court - police authorities obliged to report matter of seizure to magistrate - no inconvenience or hardship should be caused to any bona fide owner of seized vehicle - jm duty bound to inquire into matter - order passed by jm set aside. - - the first is before the charge-sheet in any criminal case is received by the court, and such a matter may well be covered under s. then it has been further observed that all the..........the magistrate was then moved by the complainant to direct the police to send up a chalan. the police reported that the were no grounds on which they could send up a chalan. the led him to put an application for the restoration of the horse to him and after making some inquiry, the magistrate passed n order on 16th may 1942 that the horse should be made over to the complainant, namely the respondents and referred ghulam ali, petitioner , to the civil court if he had any objection. in the meanwhile, the horse was made over by the police to the petitioner as originally directed by the learned magistrate. the petitioner then went in revision to the learned sessions judge against the subsequent order of the magistrate who holding the order of the magistrate to be one under s.517......
Judgment:
ORDER

(1) On 27-12-65 on Suraj Mohan Banu Mishra of Billimora made an application in the Court of Judicial Magistrate, First Class at Navsari, stating inter alia about one Baburao Raghojirao having been arrested by the Navsari police in respect of the offences under Ss. 66(b) and 81 of the Bombay Prohibition act, and that a motor truck No. GTA 3093 belonging to him has been seized at that time by the police. He has then stated that his income for livelihood depends upon the use of his motor truck. It has been lying idle at the Police Station and for want f use etc. It would get spoiled. So saying he has prayed for the return of the said truck to him and for which he was prepared to give suitable security as demanded by the Court. That application was heard on 30-12-65 and it came to be rejected by the learned magistrate saying that no report from, the police under S. 523, Criminal procedure Code, was received by him in that respect, and that, therefore, no order under s. 523 of the Criminal Procedure code can be passed. It is against that order that the applicant has come to this court invoking the revisional jurisdiction of this Court inter alia contending that no sooner it has been brought to the notice of the learned magistrate about the seizure of a truck in connection with an offence - which has been registered as C.R. No.997 of 1965, at the Police Station, it was necessary for the learned Magistrate to make an inquiry and pass suitable orders under S. 523 of the Criminal Procedure Code.

(2) When this matter came up for admission on 16-1-1966, while issuing rule, an order was passed for obtaining a report from the learned magistrate to know whether any such report from the Navasri Police Station in respect of the truck seized in connection with the Prohibition offence has been received by him so far, as contemplated under S. 523 of the Criminal Procedure Code. From this report dated 20-1-66, it is clear that no such report from the P.S.I. Navsari has been received by him - though the first information report about the offence in respect of which presumably the motor truck was seized has been received by that Court. Mr. Choksi, the learned govt. Pleader, resists the petition inter alia contending that unless the report was received by the learned magistrate, the Court cannot be said to have any jurisdiction to pass any order under S. 523 of the Criminal Procedure Code. That would, in his view, amount to usurpation of the powers of the investigating officer. It was, besides urged that the applicant has made no request to the learned magistrate for having any such report from the police called for and in absence of any such request, the learned Magistrate was justified in rejecting the application. It does not therefore, call for any interference by this court in revision and more so, when he has come directly to this Court and not thorough the Court of the Sessions Judge of the District of Bulsar.

(3) Now it is clear that under C1 2 of S. 98 of the Bombay Prohibition Act, whenever any offence punishable under the provisions of the Bombay prohibition Act has been committed, any receptacle, package or covering in which any of the articles liable to confiscation under sub-section (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article shall likewise be liable to confiscation by the order of the Court. Then under proviso to S. 99 of the Act, no animal, cart, vessel, vehicle or other conveyance shall be confiscated, if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of the offence. The Bombay Prohibition act are cognizable offences and any conveyance used in carrying any such articles can be seized by the police, the question of confiscation of any such conveyance ultimately has to be decided by the Court.

(4) Chapter XLIII of the Criminal Procedure Code, deals with the orders that may have to be passed with regard to the disposal of the muddemal property in any criminal case. There are three stages in a matter in which the Magistrate may be required to pass orders regarding custody or disposal of any such property. The first is before the charge-sheet in any criminal case is received by the Court, and such a matter may well be covered under S. 523 of the Criminal Procedure Code. Then the Court may have to pass orders relating thereto during the pendency of the inquiry or rail and that can be done under S. 515-A of the code. Then comes S. 517 which requires the Court to pass orders in that respect when the trail is concluded. In the case before us, we have to consider the effect of S. 523 of the Criminal Procedure Code, and that covers the first stage - which obviously is prior to any proceeding before the Court. Now S. 523 provides certain procedure to be followed both by the police and the Magistrate with regard to any property seized by the police subsection (1) thereof runs thus:

' The seizure by any police -officer of property taken under S. 61 or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a magistrate, who shall make such order as he thinks fit respecting the disposal of such 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'.

Then comes sub-section (2) which says that if the person so entitled is know, the Magistrate may order the property to be delivered to him on such condition, if any, as the magistrate thinks fit. Then it refers to certain procedure where the owner of property seized is not known. It was urged by Mr. Sethna, the learned advocate appearing for the applicant, that the motor truck bearing GTA. 3093 belonging to the applicant has come to be seized by the police in respect of some offences alleged to have been committed by one Baburao Raghojirao, such as carrying prohibited articles under the provisions of the Bombay Prohibition Act. There is, therefore no dispute that the property can be said to have been seized under such circumstances which create suspicion of the commission of any offence at that stage, and consequently, the police has to follow the procedure as laid down under Sub-section (1) which says 'that it shall be forthwith reported to a Magistrate'. These words have a two-fold significance. The first is that the provision gives a clear direction to the police -making it obligatory to report the seizure of any such property to the Magistrate/ The second direction is that it shall be reported forthwith. The use of the word ' forthwith 'is something more forceful than immediately or soon after the seizure of the property. It contemplates no loss of time. The idea behind it appears to be that no in convenience or hardship should be caused to any bona fide owner of any such property, and the matter can immediately be considered by the Magistrate having jurisdiction to deal with any such matter. No discretion is allowed to the police in that respect as would justify him to delay in making any such report - and if the police required the same for the purpose of any investigation it has got to move the Magistrate for the same. At any rate, the fact about its seizure has to be reported forthwith to the Magistrate. That in a way serves as a check on the police in dealing with any such property seized from any person. The police is thus bound to send a report there and then as it were, about any such seizure, to the Magistrate, as required under S. 523 (i) of the Code.

(5) Now in the present case, though the motor truck has been seized by the police at any rate before 27-12-65, when the application by its real owner has been made to the learned Magistrate and as his report shows, no intimation or report as required under S. 523 of the Criminal Procedure Code has been received by him from the police which seized that property, till 20-1-1966. When such is the case, whether the Court has jurisdiction and authority to act - on any such application given by the owner of the property in respect thereof, is a point to be considered in this petition. The learned Magistrate thought that unless actually a report from the Police Officer seized that property is received he cannot act. According to him, he cannot even call for his report, much less deal with that property.

Mr. Chokshi referred to me a decision in a case of Ghulam Ali v Emperor, AIR 1945, Lah 47, where it was held that 'from a strict reading of S. 523, it was clear that the order could be passed not on the application of a party but on a report by the police. The facts of that case were that the police acting on some information, recovered from petitioner's possession a horse on 10-9-41. The police did not report the seizure thereof to the Magistrate as they should have done. But the petitioner himself approached the Magistrate who passed n order on 15-9-41 directing the police to hand over the horse to him on security of Rs.400. The Magistrate was then moved by the complainant to direct the police to send up a chalan. The police reported that the were no grounds on which they could send up a chalan. The led him to put an application for the restoration of the horse to him and after making some inquiry, the Magistrate passed n order on 16th may 1942 that the horse should be made over to the complainant, namely the respondents and referred Ghulam Ali, petitioner , to the Civil Court if he had any objection. In the meanwhile, the horse was made over by the police to the petitioner as originally directed by the learned magistrate. The petitioner then went in revision to the learned Sessions Judge against the subsequent order of the Magistrate who holding the order of the Magistrate to be one under S.517. Criminal Procedure Code, remanded it for further inquiry. On a matter taken to the High Court in revision, it was held that as there had been no inquiry or trial in the case, section 517 could not come into operation, and the order of the Magistrate could not come within S. 517 of the Criminal Procedure Code. It was further observed that the Magistrate had no right to review his own order, as the first order passed by him must be presumed to have been passed under S. 523 of the Criminal Procedure Code. Even the learned Sessions Judge was found to have erred in assuming jurisdiction for there is no right of appeal to, or revision by the Sessions Judge under S. 528 of the Code of Criminal Procedure. Then it has been further observed that all the proceedings in the case, except the original order making over possession of the horse to the petitioner were bad in law and must be set aside. Then come the pertinent observations - relied upon by Mr. Chokshi, the learned Government Pleader for the State they ran thus:

'Even that order is not free from defect, because it would appear from a strict reading of the section that order should be passed not on the application of the party but on a report by the police. It seems to me, however, that though there should have been such a report in this case the absence of it has not occasioned any failure of justice. There are, therefore, no grounds for interference in revision with that order'.

With respect, I am unable to agree with that view if it is taken to hold that it is only on a police report and not on any application of any party affected by seizure of any such property, that the Court can pass the order under S. 523 of the Criminal Procedure Code. Apart from there being any such specific limitation imposed on the Magistrate exercising his powers on being moved by any such party, a power go call for a report, on such information given to him is implicit in the power given to him to deal with such property seized by the police. If that were not so, the effect of S. 523 would be meaningless, and even the provisions contained therein may be turned nugatory if the police officer so took in his head not to report about any such seizure for any length of time. No power is given to the police to deal with such property. A liberal construction has to be given to a provision like this and the spirit and substance behind such a provision has to be considered, so as not to frustrate the purpose behind it. There is no question of usurpation of the powers of the police - as none are given to them for disposal thereof after it is seized. The power is conferred to them to seize the property and it extends no further to deal with it as S. 523 immediately comes in effect and requires the Police Officer to report forth with about such seizure and the Magistrate becomes entitled to deal with it as he thinks fit.

In my opinion, it would be perfectly open to the learned Magistrate to take note of the fact about any such truck having been seized by the police officer and while he may not act upon it at once, it would be his duty to inquire from the police officer and have his report obtained if the police officer so desires to send. It is possible that the police officer may have forgotten to send such a report, and on an intimation form the Magistrate on any such information received from the owner of the property involved, the police officer may send a report, and the Magistrate would then be justified in passing the order as he thinks fit with regard to the disposal of any such property or the delivery of such property to the person entitled to the possession thereof - under S. 528 of the Code. It however, the Police Officer does not choose to send in spite of an intimation sent to him the party claiming the property cannot be made helpless having no remedy by reason of the fault or default on the part of a police officer in making a report which he was bound to make forth with on seizing the property under S. 523 (1) of the Criminal Procedure Code. If the Magistrate was powerless to do so as is sought to be urged, it may well happen that the police would retain it till at any rate the charge sheet happens to be sent in the particular case to the Court of the Magistrate, and thereby cause considerable hardship to the rightful claimant, and even the property would suffer damage by remaining unused for any indefinite time. The Police Officer has no power or authority to deal with it any manner and it is therefore that the legislature required him to report to the Magistrate, so that suitable orders can be passed by the Magistrate under S. 523 (1) of the code. The learned Magistrate has thus failed to exercise the jurisdiction and the authority he had, when it was known to him that this property was seized and when he found that no report, as was required to be sent by the police officer forthwith, was received by him. In fact the Police Prosecutor was informed about it and yet no steps were taken by the police to comply with the provisions contained in S. 523 (1) of the Code.

(6) It was then pointed out by Mr. Chokshi, the learned Government, pleader, that there is no specific request made in the application for calling for the report of the police officer who had seized the motor-truck GTA 3093, and consequently the Court was not required to pass any order on the application. In the application a request is specifically made for passing orders for delivering the said truck to him as it belongs to him and that he was prepared to give any security demanded by the Court. When a such a request is made, it cannot be said that he does not want the Court to call for a report from the police officer or that he does not want any inquiry to be made by the magistrate with regard to the ownership or possession of the said property before ordering its delivery to the rightful claimant. That it a duty cast upon the learned Magistrate, and absence of any such specific words in that respect cannot justify the Court to ignore its own duty under S. 523 of the code, no sooner it came to be known to him. It is not always that the parties are represented by lawyers who can set our proper allegations keeping in mind everything that is required to be mentioned as contemplated in the provisions of law. The Court has to look to the application broadly, and more to the substance an the spirit behind the prayer made by the applicant rather than be so technical as to defeat the purpose behind such provisions contained in S. 523 (1) of the Criminal Procedure Code. In the present case the police officer appears to have ignored the provisions of S. 523 (1) of the code and instead of sending the report forthwith after seizure has not chosen to send it till 20-1-66 i.e. more than three weeks after the property is seized. As observed in a case In re, Ratnalal Rangidas, (1893) ILR 17 Bom 748, under S. 523 of the Code of Criminal Procedure a Magistrate is bound to institute an inquiry before making any order touching the right not of property, but of possession to the property, seized by the police. Instead of doing the same, the order passed by the learned Magistrate outright denies any remedy to the applicant by not calling for a report from the Police Officer if he thought it was so necessary, before holding any inquiry and passing orders on the application.

(7) It was then said that the applicant has not gone to the Session Court against an order passed by the learned Magistrate and has come directly to this Court,. Ordinarily it is true that the High Court is reluctant to entertain any petition in revision directed against any order passed by the Magistrate. But even if he had gone to the Sessions Court it was not possible for it to pass any adequate orders, and it would have been required to refer the matter to the High Court for having suitable orders in the matter. That would have taken good lot of time and the purpose behind the claim in the petition would obviously be frustrated. There is no bar under any provision of law, saying that an application in revision cannot lie directly to the High Court and that an application in revision cannot lie directly to the High Court and that it must always come through the Sessions Court. Since S. 523 does not give any right of appeal or of revision by the Session Court against any order passed under that section, in my opinion, it would be perfectly competent to entertain and pass suitable orders in revision by this Court provided the order passed by the learned Magistrate has clearly occasioned failure of justice. Now apart from what I have said above, with regard to the authority of the magistrate under S. 523 of Criminal Procedure code, it is clear that the police has not chosen to send a report for such a long time viz., about a month or so, and having regard to the nature of the property seized by the police with regard to the offence under the Prohibition Act said to have been committed by some other person, there was bound to be failure of justice for the simple reason that for the fault or default of the police officer in complying with the mandatory provisions under S. 523 of the Code, he would have to suffer. Not only, that, but the inaction on the part of the Magistrate in not even choosing to call for any such report so as to enable him to make an inquiry with regard to the application made to him was bound to occasion failure of justice. When any such failure of justice is brought to the notice of this Court, it can certainly interfere and see that justice is done to the party, as apart from revisional jurisdiction it can exercise against any such order, as observed in a case of Pranab Kumar Mitra v State of West Bengal : 1959CriLJ256 , in hearing and determining cases under S. 489 of the Code, the High Court discharges its statutory function of supervising the act, ministration of justice on the criminal side.

(8) I therefore, set aide the order dated 30-12-1965 passed by the learned Judicial Magistrate, First Class, Navsari, and direct that in case no such report with regard to the seizure under S. 523 (1) of the Criminal Procedure Code is received from the Police officer, Navsari, within three days of the intimation being given to him for submitting his report in that respect, he shall, in absence of any such report, proceed with the inquiry required to be made under S. 523 of the Criminal Procedure Code before passing any orders with regard to the said property. A notice to the Police Officer, Navsari shall also be sent before any inquiry is made by him.

(9) Order accordingly.


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