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Union of India (Uoi) Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Customs
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition No. 215 of 1981
Judge
Reported in1983(13)ELT895(Raj); 1982WLN(UC)247
ActsGold (Control) Act, 1968 - Sections 8, 10(2), 16, 71, 79, 84, 85, 97(2), 110 and 110(2); Code of Criminal Procedure (CrPC) - Sections 392, 397 and 482; Code of Criminal Procedure (CrPC) , 1898; Indian Penal Code (IPC) - Sections 380, 411, 424, 454 and 457; Defence of India Rules - Rules 124, 127 and 128
AppellantUnion of India (Uoi)
RespondentState of Rajasthan and ors.
Appellant Advocate R.R. Vyas, Adv.
Respondent Advocate S.S. Bhandawat, Public Prosecutor and; N.N. Mathur, Adv. for Non-Petitioner No. 2
Cases ReferredR.L. Kaparia v. Munilal Charan Dass
Excerpt:
.....criminal procedure code - section 482 and gold control act, 1968--section 110(2)--mandate to police officer to act in a particular method--no mandate to court & powers of criminal court are not curtailed.;section 110(2) of the act points out the method to be adopted by the police officer. it cannot be said to be mandate to the magistrate to act in a particular way so as to curtail his powers under the code regarding the disposal of the property involved in the case.;the omission of casting duty on the magistrate in section 110(2) of the act indicates that the exercise of powers by criminal courts regarding disposal of property as per provisions of the general enactments was not meant to be curtailed by the provisions of this act.;petition dismissed - - the principle..........gold with her. section 110 of the act read as under :-'procedure in respect of gold sized by the police officers. -(1) where any police officer seizes any gold which is alleged or suspected to have been stolen or which is found under circumstances which create suspicion of the commission of an offence, such police officer shall forthwith report the seizure of such gold to the nearest gold control officer or above the rank of a superintendent of central excise.(2) notwithstanding anything contained in the code of criminal procedure, 1898 (5 of 1898), in every case referred to in sub-section (1) the police officer shall immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, as the case may be, cause such gold to be conveyed and delivered to the.....
Judgment:

Kanta Bhatnagar, J.

1. This petition under Section 482 Cr.P.C. arise out of the order passed by the learned Additional Civil Judge and Judicial Magistrate, Udaipur dated 28-3-81.

2. The matter relates to a criminal case instituted against four accused viz., Gangsingh, Nandlal, Ramesh Chandra and Gehrilal, regarding the theft of gold and other articles said to be belonging to Yogeshwari Devi from a room in Shiv Niwas Palace. On the charge-sheet being filed against the aforesaid persons, the learned Munsif Mag. charge-sheeted Gangsingh and Nandlal for the offences under Sections 454/457 and 380 I.P.C., and the other two accused for the offences under Sections 411 and 424 I.P.C. Gangsingh pleaded guilty to the charges and was convicted and sentenced by the judgment dated 7-7-75. Trial proceeded against the remaining three accused and they were held guilty and sentenced by the judgment dated 28-3-81. The learned Magistrate heard the parties regarding the disposal of the property. The learned counsel for the complainant and the learned Assistant Public Prosecutor prayed that the articles recovered during the course of investigation may be returned to the complainant. On the other hand on 11-3-82, an application under Section 110 of the Gold (Control) Act, 1968 (hereinafter referred to as the Act) was filed by the Customs Department with the request that the Gold may be entrusted to the Custom Department for disposal according to the provisions of the Act and be not returned to the complainant. The learned Magistrate after hearing the parties and looking to the material produced on behalf of the complainant rejected the application filed by the Customs Department and ordered that the recovered gold may be returned to the complainant with a further order that in case Customs Department considers it necessary, separate proceedings in that regards may be initiated. It is in grievance to that order for the disposal of the gold involved in the case that the Union of India has come to this Court for relief under Section 482 Cr.P.C. read with Section 392 Cr. P.C. which has been registered as Original Misc. Petition under Section 482 Cr. P.C.

3. At the commencement of the arguments, learned counsel for the respondent No. 2 raised a preliminary objection regarding the maintainability of the petition under Section 482 Cr. P.C. on the ground that when there are provisions of appeal in the Act and revision also could have been filed, there arises no question of invoking the inherent jurisdiction of this Court. According to the learned counsel Section 482 Cr. P.C. is attracted only in cases where there is no express provisions in the Code or any other Act.

4. Controverting these contentions, the learned counsel for the petitioner submitted that the provisions of appeal are not applicable to the present case, when without there being any authority to do so, the learned Magistrate has ordered for return of the gold to the complainant. The learned counsel referred to certain authorities to substantiate his argument that even in case when other remedy is available, Courts have not declined to exercise inherent powers to cure the abuse of the process of the court by subordinate courts.

5. Section 84 of the Act deals with appeal against any order made under this Act. It relates to the decision or the order made by a Collector of Central Excise or of Customs or a decision or order made by any Officer below the rank of Collector of Central Excise or Customs. That provision therefore, does not cover a case in which an order has been passed by a Judicial Magistrate in a trial. In order to decide the preliminary objection, it will be profitable to look into the principle enunciated in certain authorities.

6. In the case of Madhu Limaye v. State of Maharashtra, A.I.R. 1978 S.C. 47, the question for consideration before their Lordships was whether High Court can exercise its inherent powers to quash an interlocutory order. Discussing the principle relating to the exercise of inherent powers of the High Court, their Lordships were pleased to opine that the High Court must exercise the inherent powers very sparingly. The question for determination in that case was, whether in view of the ban under Section 97(2) Cr. P.C. the High Court could interfere in the impugned order under Section 482 Cr. P.C. or not. Their Lordships were pleased to hold that the ban under that Section will not operate to prevent the abuse of the process of the Court or and to secure the ends of justice. The principle enunciated in that case was that, in case the impugned order clearly brings about a situation which is an abuse of process of the Court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary.

7. In the case of Ganesh Nand Chela v. Swami Dayanand, 1980 Cr. L.J. 1036, the question arose in Delhi High Court as to whether a petition under Section 482 Cr. P.C. for quashing the complaint without filing revision against an order summoning the petitioner to stand for trial was permissible or not. In view of the finding that the cognizance offence being against mandatory provisions of the Code was illegal. His Lordships was pleased to quash the impugned order in exercise of the powers under Section 482 Cr. P.C.

8. In the case of Raj Kapoor and Ors. v. State (Delhi Administration) and Ors., A.I.R. 1980 SC 258, their Lordships were pleased to propound that, the inherent power of the High Court under Section 482 Cr. P.C. does not stand repelled when the revisional power under Section 397 overlaps. It was further observed that, nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. While attracting importance to the position that where specific provision is made, easy report to inherent power is not right except under compelling circumstances, their Lordships were also of the opinion that there is no total ban on the exercise of the inherent power where abuse of the process of the court or other extra-ordinary situation excites the Court's jurisdiction. According to their Lordships the limitation is self-restraint, nothing more.

9. The petitioner has come with a case of inherent lack of jurisdiction of the Court for passing the impugned order. This being the position, even the availability of alternative remedy by way of appeal or revision petition under the Code or any other provision would not act as an impediment in entertaining the petition Under Section 482 Cr. P.C.

In view of the principles enunciated in the above referred cases and the facts and circumstances of the case, the preliminary objection raised by the learned counsel for non-petitioner No. 2 is ruled out.

10. Coming to the merits of the case, Mr. Vyas learned counsel for the petitioner emphatically aruged that provisions of Section 110 of the Act are mandatory in nature and it is obligatory for the trial court to deliver the gold to the nearest Gold Control Officer. Mr. Vyas referred to the various provisions of the Act to substantiate his contention that despite the order of the Court for delivery of gold, involved in the case to the complainant, it would not be possible for the complainant to keep the gold because that would amount to an offence. To substantiate the contention he referred to Section 8 of the Act which imposes restrictions regarding acquisition, possession and disposal of gold. Section 16, requires declaration as to articles or ornaments of gold. Section 71 dealing with the provisions of confiscation of gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being or is attempted to be contravened and Section 85, providing punishment for illegal possession etc., of gold. According to Mr. Vyas unless the Gold Control Officer, after investigating the matter arrives at a conclusion that the Gold in question belongs to the complainant and she was really authorised to keep the same having complied with all the formalities necessary for that purpose the possession of the gold by the complainant would amount to an offence. On the other hand, the contention of the learned counsel for the non-petitioner No. 2 is that the trial court has passed the impugned order after looking into various documents, such as declaration by the complainant; the conversion of ornaments into the throne (Sinhasan) of the deity alongwith the receipt of the goldsmith. The list filed in the Income Tax Department, in 1974 describing the ornaments melted for the throne and taking into consideration the fact that in the Income Tax return for the year 1975-76 the factum of theft was mentioned and, therefore, there can be no hurdle in the way of the non-petitioner keeping the gold with her. Section 110 of the Act read as under :-

'Procedure in respect of Gold sized by the Police Officers. -(1) Where any Police Officer seizes any gold which is alleged or suspected to have been stolen or which is found under circumstances which create suspicion of the commission of an offence, such Police Officer shall forthwith report the seizure of such gold to the nearest Gold Control Officer or above the rank of a Superintendent of Central Excise.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), in every case referred to in Sub-section (1) the Police Officer shall immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, as the case may be, cause such gold to be conveyed and delivered to the nearest Gold Control Officer or of above the rank of a Superintendent of Central Excise.'

It is Sub-section (2) which is relevant for the present purpose. Two questions emerge for determination. First, whether the provisions are mandatory or directory and second, whether mandate or direction, what-so-ever it be, is only for the police officer or for the Court as well.

11. According to Mr. Vyas in whatever situation the gold seized, after the dismissal of the complaint or conclusion of the enquiry or trial, the only way open for the police or the Magistrate is to convey or deliver it to the nearest Gold Control Officer. On the other hand, Mr. Mathur's emphasis is that this provision does not curtail the powers of the Magistrate to proceed according to the provisions relating to the disposal of the property involved in a criminal case. Mr. Mathur also contended that in the judgment against co-accused Gangsingh, passed on 7-7-75, also there was the order for the return of the property involved to the complainant and no proceedings have been initiated by the Customs Department in that concern till now. According to the learned counsel even if proceedings are initiated and notice according to the provision of the Act is issued now the same would be time barred. To substantiate his case he referred to the case of Ramesh Chandra v. The Superintendent Customs and Anr.-1975 Cr. L.J. 239, wherein the notice regarding the seized gold suspected to be smuggled, was considered to be invalid because it was not given in time prescribed under Section 79 of the Gold (Control) Act. This argument needs no consideration, at this stage because question of limitation would arise only when notice if any, would be issued.

12. The main point in the case is the interpretation of Section 110 of the Act. The question of interpretation of this Section came for consideration before the Punjab & Haryana High Court in the case of R.L. Kaparia v. Munilal Charan Dass 1978 C.L.J. (P & H) 54. The case under Rules 124, 127 and 128 of the Defence of India Rules was registered against one Munilal and two others. During the investigation of the case ornaments of considerable value were seized from them. The case of the respondents was that the ornaments were the property of various persons to whom they had advanced loan. The investigation by the police concluded in the untraced report which means that those persons were not found to have committed the offence for which they were sought to be hauled up. Police recommended the return of the properties to the respondents. The Judicial Magistrate passed the order for return of the property to the respondents from whom it was recovered after their furnishing securities. An application was thereafter filed by the Superintendent Central Excise and Customs, Moga, purporting to be one under Section 110 of the Act, contending therein that the property in question has been kept by the respondents in contravention of the Act. The learned Magistrate dismissed that application. Against that order revision petition has got dismissed as the appeal was already there. The appeal was however dismissed by the Sessions Judge as being barred by time. While deciding the revision petition against the order of the learned Sessions Judge, his lordship was pleased to opine that the use of the words 'Notwith standing anything contained in the Code of Criminal Procedure, 1898 in Section 10(2) of the Act, does not connote that either the ordinary powers of the Judicial Magistrate to pass orders for the return of the case property in accordance with the Code have been taken away or that the police officer is invested with the authority to disregard such order, if passed. According to his Lordship all that Section 110(2) of the Act enacts is the procedure which the Police Officer should follow in the absence of any specific direction having been made by the Court. His Lordship further expressed that if the intention of the legislature was different subsection (2) would have been differently worded and there could have been no difficulty to use any other clear phraseology, for example 'Nothwithstanding any orders passed by the Court under the Code of Criminal Procedure, 1898.' His Lordship considered the provisions more or less directory also in view of the fact that there is no provision under the Act for any remedy in case of non-compliance of the direction contained in Sub-section (2). According to His Lordships the object of the provision is merely to keep the Gold Control Authorities in touch with case in which any item of gold is recovered by the police so that, if necessary they may examine the matter from the point of view of any violation of the provisions of the Gold (Control) Act. In view of those findings, the order passed by the Judicial Magistrate for returning of the case property to the persons from whom it was recovered was not held to be without jurisdiction. His Lordships declined to interfere with the order of the learned Sessions Judge dismissing the appeal as being barred by time. His Lordships also took into consideration the fact that no prosecution whatsoever had been launched against the respondent under the Gold (Control) Act and in fact, not even the usual show cause notice has been issued to them. The argument about the lack of jurisdiction of the Magistrate to pass such an order, was considered to be untenable on the ground that if the Magistrate had really no jurisdiction to act in the matter, no relief could be prayed or granted to the petitioner under the Act.

13. The case in hand stands on a still weaker footing than the case referred to above. Here the learned Magistrate has ordered the return of the property to the complainant after examining the case in the light of the material produced by the complainant. As evident from the judgment the A.P.P. has also prayed for the property to be returned to the complainant, just as the police report in the Punjab & Haryana case recommended the return of the property to the respondents.

14. Section 110(2) of the Act points out the method to be adopted by the police officer. It cannot be said to be mandate to the Magistrate to act in a particular way so as to curtail his powers under the Code regarding the disposal of the property involved in the case. To think otherwise would amount to reading in between the lines.

15. Mr. Vyas next contended that even if the provisions of Section 110 (2) of the Act are considered to be applicable to the police officer still it would not make any difference because he is to cause the gold to be conveyed and delivered to the nearest Gold Control Officer, and this duty he can discharge by obtaining order to this effect from the Court. The argument has no force, especially in the given circumstance of the case that as stated earlier the A.P.P. had prayed for the return of the property to the complainant.

16. I am in perfect agreement with the observation of His Lordship in the Punjab & Haryana case (supra) that, had the intention of the legislature been to make these provisions directory or mandatory for the Court also then the language of the Section would have been different. The omission of casting duty on the Magistrate in section 110(2) of the Act indicates that the exercise of powers by criminal courts regarding disposal of property as per provisions of the general enactments was not meant to be curtailed by the provisions of this Act.

17. In view of the above discussion regarding the facts and the circumstances of the case and the relevant law on the point, I am inclined to hold that the impugned order suffers from no illegality or infirmity, nor can it be said to be the abuse of the process of the court, so as to call for any interference by the court in exercise of its inherent power, specially when the learned Magistrate has left the course open to the Customs Department to initiate separate proceedings if considered necessary. There is thus no impediment in the exercise of the power of Custom Authorities, the petition having no merits is dismissed.


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