Mian Jalaluddin, J.
1. The learned Sessions Judge Baramulla has made this reference in the following circumstances:
1. In a criminal case State v. Ghulam Nabi Mistri offence under Section 304 (A), R. P. C. the police Baramulla seized certain documents including the driving licence of the accused. When the challan was laid before the Judicial Magistrate Baramulla an application for interim custody of the driving licence was made by the accused to enable him to pry his vehicle. It was found by the court that the police had not sent the driving licence along with the challan, but had, on the other hand, forwarded it to the licencing authority for its cancellation. The learned Magistrate, after being satisfied that the document was not a material piece of evidence in the case, passed an order on 9-7-1974 directing the police to hand over the driving licence to the accused on his executing the Superdnama. But before the driving licence could be restored to the accused it had already been cancelled by the licencing authority under Section 15 of the Motor Vehicles Act. The Public Prosecutor moved the Sessions Court against the order of the Judicial Magistrate. It was contended before him that the Judicial Magistrate could not have passed the order directing the police to hand over the driving licence to the accused as the matter was sub judice. Grievance, on the other hand, was made of the fact on behalf of the accused that the police could not move the licencing authority for the cancellation of the licence in terms of Section 15 of the Motor Vehicles Act when the document had been seized during investigation and it had become the property of the court. The police could not deal with the document in any manner except with the leave of the Court.
2. Two questions have been raised by the learned Sessions Judge in this reference; (1) whether it was competent for the judicial Magistrate to pass an order in regard to the interim custody of the driving licence which the police had seized during investigation; and (2) whether it was proper and legal on the part of the Superintendent of Police to have taken away the seized driving licence from the officer in charge of Investigation and forward the same to the licencing authority for its cancellation without the authority of the Court. The learned Sessions Judge has observed that it was within the power of the Judicial Magistrate to make an order of interim custody of the document in exercise of power vested in him under Section 523, Criminal P. C. It was the court alone that had the authority to pass an order with regard to the disposal of the document seized by the police during investigation. Further, the police investigating agency or for the matter of that even the Superintendent of Police had no authority to pass on the driving licence to the licencing authority for its cancellation without the leave of the court. In a matter pending adjudication before a court of law it was not competent for the licencing authority to record a finding against the accused that he had used the vehicle for the commission of a cognizable offence which matter was still sub judice. Such an observation of the licencing authority could be premature and might ultimately be found inconsistent with the finding that the court may arrive in the case. According to the learned Judge proceedings initiated by the Police militated against the very principle enshrined in Section 523 of the Criminal P. C. He has therefore sought that this Court may pass appropriate orders in the case.
3. Appearing for the State the Additional Advocate General has not supported the reference. According to him it was within the power of the licencing authority to cancel the driving licence of the accused when he had found that the plying of the vehicle by the accused could endanger public safety and this he could do under Sub-clause (3) of Section 15 of the Motor Vehicles Act. The order passed by the licencing authority was made in pursuance of Sub-clause (3) of Section 15 of the Motor Vehicles Act and it did not therefore in any way interfere with the proceedings pending before the court. It was wrong, it is submitted, on the part of the Judicial Magistrate to have ordered the delivery of the driving licence to the accused at the interim stage when the case had not as yet started and the matter was sub judice.
4. M/s. N. K. Ganjoo and A. G. Lone appearing for the accused respondent have, on the other hand, supported the reference. They submitted that the questions raised before the court related to the vindication of the principle whether the investigating agency or for the matter of that the licencing authority could deal with the property seized during investigation at their choice and liking without seeking the necessary orders of the court. According to the learned Counsel such a course was not warranted by law. It was the court and the court alone that could deal with the property or document seized during investigation and the police had no authority to act unilaterally on their own in the matter. My attention has been invited to the provisions of Sections 51, 165 and 523 of the Criminal P. C.
5. The reference involves the consideration and determination of important points of law as regards the powers of the police/Court to deal with the property/document seized in the course of investigation, also the power of the court to pass an order as regards the interim custody of such property/document. There can be no dispute with the proposition of law that the appropriate section applicable to the case before us is Section 523, Criminal P. C. That section provides:
(1) The seizure by any police officer of property taken under Section 51, 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.
Section 517 of Criminal P. C. provides that when the enquiry or trial in a case is concluded the court will pass orders with respect to property/document produced before it by way of confiscating, destroying, or delivering it to the person found entitled thereto. Sub-clause (iv) of the Section gives power to the court to pass interim orders in respect of such property/document.
6. On a plain reading of the above provisions it is quite manifest that the power to dispose of the property or deal with it even at the interim stage is given to the Criminal Court. Section 523 applies not only to the property seized by the police in pursuance of Section 51, Criminal P. C. but also to the property seized by the police in the course of investigation of crimes. In this view of mine I am fortified by : AIR1970Ker191 . This section makes it obligatory on the police investigating agency to forthwith report to a Magistrate who shall make such order as he thinks fit respecting the disposal or delivery of the property to the person entitled to its possession. Thus according to the section it is the court and the court alone which has got statutory authority to pass interim or final orders in respect of such property and the police cannot deal with it in any manner except with the leave of the court. In the case before us it is found from the seizure list annexed with the challan that certain documents including the driving licence of the accused respondent were seized as piece of evidence during the course of investigation by the police. In this circumstance the driving licence should have been produced forthwith with the challan. Section 523 left no discretion with the police to deal with the document unilaterally and to send the same to the licencing authority for its cancellation. This observation of mine may not, however, be construed to mean that I deny the power of the Licencing authority to cancel the licence of a driver whose case would fall within the purview of Section 15 of the Motor Vehicles Act. But action must be taken according to the well-established principles of procedure and the rule of law. Even Section 15 of the Motor Vehicles Act was not according to the learned Judge followed in letter and spirit. That section required the licencing authority to give an opportunity to the holder of the driving I licence to be heard before an order under that section was passed. This has not meticulously been followed in the present case. If the police really entertained a reasonable apprehension as regards the accused that plying of vehicle by the accused would endanger the public at large, it could refer the matter to the appropriate authority with the leave of the court seized of the case. The police could not by-pass the court and send on the document to the Transport authority without taking the court into confidence. I need not dilate upon the proposition that investigation in criminal cases must be conducted in conformity with the express provisions of law and that the powers of the police must remain subservient to the authority of the courts.
7. I am, therefore, positively of the view that the act of the police in forwarding the driving licence to the licencing authority for its cancellation was not in conformity with the requirement of law and also was not consistent with the propriety as the case was sub judice and the guilt of the accused was yet to be determined by a criminal forum. However, as the order of cancellation of driving licence has been passed by a competent authority whether rightly or wrongly under Section 15 of the Motor Vehicles Act and this Court is not called upon to set aside the order of cancellation as this point is not germane to the reference, therefore it may not be proper for me to expatiate on this aspect of the matter. It will be for the accused respondent to move the appropriate authority, if he has not already done that for setting aside the order of cancellation especially when grievance has been made of the fact that mandatory provisions of Section 15 have not been complied with while passing the said order, but nevertheless it is ordered that the document of the driving licence in its present form shall be delivered to the accused, if not already done, in order to enable him to seek redress in the matter.
8. The second aspect of the question relates to the power of the court to deliver the document to the person from whose possession it was seized. Section 523, as already stated, does confer this power on the court, but if the order is to be made at the interim stage, it is but proper for the criminal court to issue notice to the prosecution and to seek their views in the matter and then decide the question of its delivery. In the present case it appears that the learned Magistrate has passed the order of the interim custody of driving licence without hearing the prosecution. As the document was seized during the course of investigation, it was, therefore, desirable that the Magistrate should have heard the prosecuting agency also before ordering its delivery to the accused respondent.
9. With these observations the reference is otherwise disposed of.