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Ajahar Ali and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 343 of 1955
Judge
Reported inAIR1956Cal157,1956CriLJ532
ActsCalcutta Suburban Police Act, 1866 - Section 38A(2); ;Code of Criminal Procedure (CrPC) , 1898 - Section 517
AppellantAjahar Ali and anr.
RespondentThe State
Appellant AdvocateNarendra Nath Banerjee, Adv.
Respondent AdvocateSatyendra Chandra Sen, Adv.
Excerpt:
- .....whether section 38a(2), calcutta suburban police act puts out of commission the provisions of the code of criminal procedure as respects disposal of property. complaint is made on behalf of the petitioner that the learned magistrate did not give him proper opportunity of being heard in the matter as respects the question of disposal of the property, viz., the cycle rikshaw.it is true that the magistrate who tried the charge held that he had lost seisin of the case and consequently he bad no power left to decide the claim put forward by the petitioner, to the ownership of the vehicle. apart from the general question that a suitor has a right to be heard before an order adverse to him is made, it seems necessary to consider whether the words of section leave any discretion to the.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This revision petition is directed against an order of a Magistrate at Alipore forfeiting a cycle rikshaw under Section 38A, Calcutta Suburban Police Act (Bengal Act 2 of 1866).

2. One Narendra Nath was convicted under Section 38A of the Bengal Act 2 of 1866 for having as alleged plied a rikshaw without a licence. Upon conviction the rikshaw was forfeited by the learned Magistrate by an order dated 30-10-1954. Thereafter on 12-11-1954 an application was made by the petitioner for return of the cycle rickshaw of which he claimed to be the owner.

The Magistrate declined to make an order on the ground that he was not in seisin of the case and therefore he could not any longer pass any orders with respect to the cycle rikshaw. This application was presumably treated as one under Section 517, Criminal P. C., and the petitioner being dissatisfied with the Order of the Magistrate, took an appeal to the Sessions Judge of 24-Parganas who however by an order dated 31-1-1955 dismissed the appeal. The petitioner then applied to this Court and obtained the present Rule.

3. The only question that arises in this case is whether the proceedings before the Magistrate under Section 38A, Calcutta Suburban Police Act resulting in an order of confiscation of the cycle rikshaw were proceedings to which Section 517 of the Code and those that follow it can be made applicable.

4. Section 38A gives power to the Commissioner of Police to prohibit the use or the driving of certain types of vehicles in streets or public places. It reads as under :

'38A(1) With the Previous sanction of the Provincial Government, the Commissioner of Police may, from time to time, by notification in the official gazette prescribe the types of vehicles which shall not be driven or used in streets or public places without such limits as may be specified in this behalf by the Commissioner of Police in the said notification.

38A(2) Whoever uses or drives in a street or public place without the limits as specified under Sub-section (1), a vehicle of a type the use or driving of which has been prohibited under that sub-section, shall be liable to a fine which may extend to Rs. 500/- and the vehicle in respect of which the offence has been committed shall be forfeited to the Crown.'

5. Regard being had to the closing words of Sub-section (2) that upon conviction in circumstances envisaged in the section, question arises whether any option is left to the Court trying an offence under that section to make an order which would allow of the use of the Magistrate's discretion in disposing of property in any circumstance in respect of which the offence has been committed.

In other words, the question is whether Section 38A(2), Calcutta Suburban Police Act puts out of commission the provisions of the Code of Criminal Procedure as respects disposal of property. Complaint is made on behalf of the petitioner that the learned Magistrate did not give him proper opportunity of being heard in the matter as respects the question of disposal of the property, viz., the cycle rikshaw.

It is true that the Magistrate who tried the charge held that he had lost seisin of the case and consequently he bad no power left to decide the claim put forward by the petitioner, to the ownership of the vehicle. Apart from the general question that a suitor has a right to be heard before an order adverse to him is made, it seems necessary to consider whether the words of section leave any discretion to the Magistrate to make such order as he thinks fit upon the conclusion of an enquiry or trial as respects disposal of property in regard to a claim made by a third party.

It would be useful in this context to recall the words of Section 517, Criminal P. C., which occurs in Chapter 43 of the Code dealing with the question of disposal of property. Sub-section (1) of Section 517 provides as follows :

'When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in the custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.'

The other sub-sections attached to the section are not material to the immediate purpose.

6. Section 520 provides that any Court of appeal, reference or revision may direct any order under Section 517 passed by a Court subordinate thereto to be stayed pending consideration by the former Court and may modify, alter or annul such order or make any further orders that may be just.

7. It thus falls to be considered whether the general provisions contained in Chap. XLIII are completely sealed off by Section 38A(2). Calcutta Sub-urban Police Act which provides that upon conviction a vehicle in respect of which an offence has been committed shall be forfeited to the State.

8. On behalf of the State it has been strenuously concerned that this is an absolute direction which cannot be ignored or even modified by the Magistrate trying an offence described in Section 38A, of the Police Act. In other words, the contention is that the duty to forfeit cast upon the Magistrate is imperative and the performance of it cannot in any sense be avoided even by reason of considerations arising out of the claims of a third party.

In plain language Section 517 does not control Section 38A(2) and consequently a Magistrate is bound in every case to confiscate straightaway the offending vehicle when a charge of contravention of Section 38A has been proved before him.

9. The Calcutta Police Act is a special Statute enacted for the better regulation of the police in the suburbs of the town of Calcutta which by that Act are excluded from the general police districts of Bengal. The main purpose of the Act seems to be to provide for the proper regulation of the police force, as respects their conduct and duties within the suburbs of Calcutta.

Many of the provisions of the Act are directed to prescribe the duties of the police, the discipline of the force, its direction, control and management. There are of course other provisions which create offences, just as there are others again which give power to the Commissioner of police to control the exercise of certain trades and professions by means of grant of suitable licences.

No useful purpose will be served by referring to the provisions in the Act which are designed to define the powers, duties, responsibilities of the force in general and the prevention or punishment of certain types of offences which infractions of the different provisions entail. But there is nothing in this Act which warrants the view that it creates a special code for the trial of offences and no special procedure has been devised for dealing with offences created under the Act.

In such circumstances the offences under the Calcutta Suburban Police Act must be tried or otherwise dealt in accordance with the Code of Criminal Procedure. Section 5, Criminal P. C., provides that all offences under any law other than the Indian Penal Code shall be investigated, enquired into, tried or otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force 'regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences.'

It is therefore clear that in the absence of any specific provisions in the Act the procedure laid down in the Code will have to be followed. As I have already indicated the Calcutta Police Act does not devise any kind of special procedure for trial of offences or otherwise dealing with them under that Act with the result that the procedure indicated in the Code is attracted by reason of the provisions of Section 5 of the Code.

It is needless to say that if there was any special procedure provided by the Act itself that procedure would have prevailed by reason of the provision of Sub-section (2) of Section 5 of the Code.

10. Section 38A contemplates punishment of a type of offence under the Calcutta Suburban Police Act. It also enjoins on the Magistrate the duty of making an order of confiscation in respect of a vehicle which has been used in contravention of a notification issued in the official gazette regulating the use of particular types of vehicles in streets or public places within a specified limit.

Sub-section (2) provides that upon conviction the offending vehicle will be forfeited. The manner of forfeiture, the preferring of claims and objections by third parties are not at all dealt with or even referred to in the Police Act. It is not inconceivable that there should be claims or objections to the forfeiture by a person other than the person charged; but the legislature did not think it necessary to provide a different or special type of machinery for dealing with such claims or objections arising out of orders of forfeiture made under the Police Act

The result is that one is thrown back upon the provisions contained in Section 517, Criminal P. C. and the subsequent sections for the purpose of guidance as to how a claim made or an objection preferred with respect to a property has to be dealt with and disposed of. Section 517 is, in my view, quite wide and it permits disposal of property by destruction, confiscation or delivery to any person claiming to be entitled to possession of it.

It is to be observed that confiscation is considered to be a form of disposal of property and that being so it finds mention as one of the several ways in which property may be disposed of after the conclusion of a trial held by a criminal court. That being so, the mere fact that Sub-section (2) of Section 38A of the Police Act provides that the offending vehicle shall be forfeited need not necessarily mean and imply that the power given to a criminal court under Section 517, Criminal P. C. was intended to be taken away, abridged or abrogated even when a claim is preferred by a third party.

Confiscation is a mode of disposal and Section 517 of the Code appears to be attracted since confiscation has been expressly mentioned as one of the several ways in which disposal of property may be effected under that section.

11. If Section 517 of the Code is to be held as controlling the provisions of of Section 38A(2), Calcutta Suburban Police Act where claim is made by a third party as in my view it must be so held, then I do not see how the Magistrate could have declined to consider the petitioners application for consideration of questions which properly fell to be considered under Section 517 of the Code.

The learned Magistrate seems to be of the view that he has lost seisin of the case under the Police Act and that being so, it was no longer open to him to make an order with regard to the disposal of the property. It is not said that the special provisions of Section 38A(2) did not leave him any discretion for exercise of power under Section 517.

I think therefore in the circumstances it would be wrong to hold that Section 517 is not attracted merely because the court is given the power under Section 38A(2) of the Police Act to make an order forfeiting the offending vehicle. As respect loss of seisin of the case, Section 517 of the Code contemplates exercise of power only upon conclusion of a trial or inquiry.

12. There can be no doubt that the petitioner's application for return of the offending vehicle was not considered on the merits. It is desirable that he should be given an opportunity of belling heard in support of his application and the Magistrate enabled to make a suitable order under Section 517 of the Code.

13. In view of the conclusion which I have reached I do not think I need go into other questions raised before me as respects the duty of a court to give opportunity to a person before making an order adverse to him. That is a well-known principle to which recourse may be had in all circumstances; but it is not necessary for me to rely upon that general principle in the present case in view of the conclusion I have reached that Section 517 did confer a power on the court in this case to make a suitable order and the making of such order would necessarily involve Riving the party claiming property a right of audience.

14. My conclusion therefore is that where a specific provision for forfeiture has been made in a special law, the general provisions contained in Section 517 of the Code cannot be called in aid to order forfeiture. But where, as here, a third party lays claim to property directed to be forfeited, I do not think there can be any bar to a judicial determination of the claim in accordance with the general provisions of the Code which are not ousted by any specific provision in the special law.

15. In the result this rule is made absolute: the orders complained of are set aside and the matter is remitted to the Magistrate for reconsideration of the petitioner's application on the merits and disposal in accordance with the law.


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