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Ghulam Nabi Mir Vs. Mohammad Ayub Khan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1978CriLJ1225
AppellantGhulam Nabi Mir
RespondentMohammad Ayub Khan
Cases Referred & K) and Sardar Singh Kohli v. Swastik Financial Corporation
Excerpt:
- .....the order of munsiff judicial magistrate, 1st class, anantnag, refusing to hand over the interim custody of a truck, seized by the police, on a complaint filed by respondent against the petitioner.2. on dec. 20, 1977 the respondent filed a complaint against the petitioner, alleging therein, that he had purchased one truck bearing no. 6883 jkb from the petitioner on may 16, 1977, and had paid to him rs. 55,940/- on that account, and further, that the respondent obtained possession of the truck also, but the same was stolen from his custody by the accused. he therefore, made a prayer in the complaint, that recourse to section 202, cr. p.c. be taken, and the truck seized from the custody of the accused. the magistrate, on taking cognizance of the offence, recorded the statement of the.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This revision petition is directed against the order of Munsiff Judicial Magistrate, 1st Class, Anantnag, refusing to hand over the interim custody of a truck, seized by the police, on a complaint filed by respondent against the petitioner.

2. On Dec. 20, 1977 the respondent filed a complaint against the petitioner, alleging therein, that he had purchased one truck bearing No. 6883 JKB from the petitioner on May 16, 1977, and had paid to him Rs. 55,940/- on that account, and further, that the respondent obtained possession of the truck also, but the same was stolen from his custody by the accused. He therefore, made a prayer in the complaint, that recourse to Section 202, Cr. P.C. be taken, and the truck seized from the custody of the accused. The Magistrate, on taking cognizance of the offence, recorded the statement of the complainant on the same day, and proceeded to pass the following order:

SHO concerned to enquire under Section 202, Cr. P.C. and report. Put up on Jan. 4, 1978.

It appears, SHO Anantnag on receipt of the aforesaid order of the Court, seized the truck from the petitioner's driver on 29-12-1977. On 30-12-1977, the petitioner made an application to the Magistrate, that he was the real owner of the truck and in possession thereof, with which the respondent had no concern, as such, the custody of the truck be given to him. This application was marked by the Magistrate on the same day to the SHO for report. The SHO in turn made a report on the same day i.e. Dec. 30, 1977, stating therein that the investigation conducted till then had revealed, that the truck had been purchased by the respondent, but as according to the SHO, further enquiry had to be made in the case, final report could be submitted only later on. On the following day, i.e. Dec. 31, 1977, the respondent also put forth a similar application for the temporary custody of the truck, repeating therein, the claims thereto which he had earlier made in his complaint. Both these applications were adjourned to Jan. 4, 1978 for consideration. By Jan. 4, 1978, the Magistrate was also in possession of the final report, which was submitted to him by the SHO in the meantime. It appears, the Magistrate found himself unable to come to a conclusion, as to whether or not any offence was prima facie made out against the petitioner. He therefore, passed an order in Urdu, the translation whereof reads thus:

4-1-1978. Counsel for the complainant present. Complainant present. Report has been received. The earlier report has been perused. Whether or not any offence is prima facie made out against the accused, the learned Counsel for the parties want to argue. Put up on Jan. 12, 1978.

The Magistrate, however, heard the learned Counsel for the parties at length on their applications for temporary custody of the truck, and being of the opinion, that the claims of the parties were evenly balanced, held that it was not desirable to hand over the custody of the truck to either of them. He therefore, dismissed both the applications and allowed the truck to remain in the custody of the SHO till further orders. It is this order of the Magistrate, which has been challenged in this revision petition.

3. I have heard the learned Counsel for the parties at length, who also produced before me original documents pertaining to their respective claims, in respect of the seized truck.

4. Mr. S. T. Hussain, appearing for the respondent, has tried to defend the order of the Magistrate, on the grounds:

1. that, the order of the Magistrate, was not covered by any of the provisions of the Cr. P.C. and was purely an administrative order, which was not amenable to the revisional jurisdiction of the High Court;

2. that, even if Section 523, Cr. P.C. applied to the facts of the case, no order for temporary custody was envisaged under the said section; and

3. that, there was no compelling reason to disturb the finding of fact arrived at by the Magistrate, on appreciation of the evidence produced before him, that the claims of the parties were evenly balanced.

Elaborating his first ground, Mr. S. T. Hussain has invited my attention to Section 516-A, Cr. P.C. which reads thus;

516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if, the property is subject to speedy or natural decay or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

5. According to the learned Counsel, this section has no application, unless the Court passing the order is holding any enquiry or trial in a criminal case. There being, according to him neither any enquiry nor trial pending before the Magistrate, the impugned order was not covered by Section 516-A. He has also drawn my attention to Section 517, Cr. P.C. and argued that this section too did have no application, as the same would apply only to a case, where any enquiry or trial in any criminal Court is concluded. The only other section applicable would according to him, be Section 523, Cr. P.C. which again did not envisage an order handing over temporary custody of the property. He has not, however, disputed the proposition, that in case Section 516-A applied, the Magistrate was competent to pass any order respecting the interim custody of the truck seized. The crucial question, which therefore falls for determination is, whether or not, any enquiry was pending before the Magistrate, when the impugned order come to be passed; there being, of course, no question of a trial pending before him, when even the process was yet to be issued against the accused.

6. A combined reading of Sections 200 to 204, Cr. P.C. shows, that whenever a Magistrate takes cognizance of an offence, under Section 190(a), Cr. P.C., he is bound to examine the complainant, and the witness, if any, upon oath, and reduce the substance of such examination to writing, to be signed by the complainant, the witness, as well as by the Magistrate. Examination of the complainant may be dispensed with, in a case in which the complaint has been made by a Court, or by a public servant, acting or purporting to act, in discharge of his official duties. If the Magistrate, on such examination, is not able to come to a conclusion, as to whether, the complaint is true, or false, he may, postpone the issue of process to the accused, and make further enquiry into the case himself, or. direct such an enquiry to be made, either by a Magistrate subordinate to him, or refer the case to a Police Officer or any other person for investigation. The Magistrate or a Police Officer, to whom the case is made over for enquiry or investigation shall exercise all the powers conferred by the Code upon an Officer-in-Charge of a Police Station, which powers inter alia include, power to arrest the accused, and power to make search and seize the property in respect of which the offence is alleged to have been committed. Any other person, who has been authorised by the Magistrate, to investigate into the case, may also exercise all such powers, except the power to arrest the accused without a warrant. As such, whereas a Police Officer may seize the property and arrest the accused without a warrant from the Magistrate is a cognizable case, no other person, except the Magistrate shall have power in any case, whether cognizable or non-cognizable, to arrest the accused without obtaining a warrant from the Magistrate. Furthermore, neither a Police Officer, nor any other person, except a Magistrate enquiring into the case under Section 202 can examine any witness on oath. If after consideration of the statement of the complainant and the witness, if any, recorded Under Section 200 and the result of the investigation or enquiry under Section 202, there is, in his opinion, no sufficient ground for issuing process to the accused, he shall dismiss the complaint, and briefly record his reasons for doing so. If, on the other hand, there are sufficient grounds for proceeding against the accused, or, in other words if he finds a prima facie case made out against the accused, he shall issue process to him. On a plain reading of Section 202 therefore, whenever a Magistrate before issuing process to the accused, wants to ascertain the truth or falsehood of the complaint, he may make further enquiry, either himself, or, through any Magistrate subordinate to him, or through a Police Officer, or, any other person. This enquiry may be by way of recording the statements of witnesses, stated to be acquainted with the facts of the case, or, by otherwise collecting evidence in the case. Clauses (g) and (h) of Section 4, Cr. P.C. which define 'inquiry' and 'investigation' respectively are reproduced as below:

(g) 'Inquiry' - 'inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court;

(h) 'Investigation' - 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

7. From a careful reading of these two clauses, it transpires, that whereas an enquiry can be made only by a Court, or, a Magistrate, a Police Officer, or, any other person, not being a Magistrate, who is authorised by the Magistrate, can conduct investigation under Section 202. Whether it be an enquiry by a Magistrate, or, investigation by a Police Officer or any other person, the primary object of this exercise is to collect oral or documentary proof pertaining to the commission of the offence, or the seizure of the property itself in respect of which the offence has been committed etc. etc. All this is required to facilitate the enquiry by the Magistrate, culminating into a prima facie conclusion, whether or not, the offence has been committed. It cannot be therefore gainsaid, that from the stage the Magistrate takes cognizance of an offence under Clause (a) of Section 190 till the stage he arrives at a tentative conclusion, whether or not any offence is made out against the accused person, he is engaged in a process of making enquiry into the case. Merely because he entrusts investigation into the case to a Police Officer or any person other than a Magistrate, he cannot be deemed to have ceased holding enquiry in the case, for the simple reason, that he retains complete seisin over the case, till he passes an order, either under Section 203 dismissing the complaint, or under Section 204 issuing process against the accused. The Police Officer, whom a Magistrate may authorise to investigate a case under Section 202 may even register a case under Section 154, Cr. P.C. and put up a report under Section 173, Cr. P.C. if the offence is a cognizable one. Nevertheless, the Magistrate is not bound to accept the report, and hold a prima facie case established against the accused. He has still a right to examine such report, along with the statement of the complainant or any witness recorded on oath by him under Section 200 in order to find out, whether or not, a prima facie case has been made out against the accused. If in his opinion, no such case Is made out, he shall dismiss the complaint under Section 203. This may not be, however, true where the Police report under Section 173 is based upon any proceeding instituted on a report recorded by the Police under Section 154. That proceeding under Section 202 tantamounts to an enquiry is amply borne out from the definition of the term 'inquiry', as given In Clause (g) of Section 2, which includes every inquiry other than a trial conducted under the Code, An inquiry, according to this definition, has a wide connotation and includes, not only inquiry into an offence, but also inquiry Into other matters which are not offences, e.g. inquiries under Chapters VIII, X, XI and XII of the Cr. P.C.

8. In the instant case, the Magistrate, as soon as he took cognizance of the offence under the complaint made by the respondent, he recorded the statement of the respondent, and referred the case for enquiry to SHO Anantnag under Section 202, Cr. P.C. It cannot be denied, that the Magistrate was seized of the case till the impugned order came to be passed, as he had yet to pass an order, either dismissing the complaint under Section 203 or issue process against the accused under Section 204, He was therefore, holding an enquiry into the case, within the meaning of Section 516-A and was fully competent to pass an order in regard to the interim custody of the truck.

9. Having come to the conclusion, that Section 516-A was applicable to the present case. I am relieved of expressing my opinion on the ambit and scope of Section 523, Cr. P.C. The only question, which now remains to be determined, is, whether or not, the impugned order passed by the Magistrate was correct, legal and proper.

10. As would also appear from the order of the Magistrate, documents i.e. certificate of fitness, certificate of insurance, route permit and certificate of registration, issued by the Transport department, stand in the name of the petitioner. This has not been disputed even by the respondent. It is also the admitted case of the parties, that the truck has been seized from the possession of the petitioner. These documents are undoubtedly presumptive proof of the ownership of the truck. There is at present neither any proof, nor any presumption of ownership, in favour of the respondent, as the sale-deed dated May 16, 1977 set up by the respondent is yet to be proved; the same having been denied by the petitioner. There is also no proof as yet, as to whether, the respondent ever came into possession of the truck, before the same was allegedly stolen, nor is there any such finding of the Magistrate, enquiring into the complaint. In these circumstances, therefore, propriety demanded, that the interim custody of the truck was made over to the petitioner, who was the presumptive owner as well as possessor of the same, on the basis of the aforesaid documents (See Mohd Yousuf v. Abdul Ahad 1972 Cri LJ 1613 (J & K) and Sardar Singh Kohli v. Swastik Financial Corporation (1964) 2 Cri LJ 492) (Pat).

11. For the foregoing reasons, the revision petition is allowed, and the order of the Judicial Magistrate Anantnag dated Jan. 4, 1978 set aside. The Magistrate is directed to hand over the Interim custody of the truck to the petitioner accused, after obtaining report from an expert, in regard to its condition, fitness, etc. on thorough check, and subject to the petitioner's furnishing security, in the amount of Rs. 50,000/- to the effect, that he shall produce the truck m the Court, in the same condition, in which it has been handed over to him, as and when required by the Court to do so.


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