Ajai Singh vs Nathi Lal and Another

J.P. Chaturvedi, J.—These are three connected cases. Cr. Revision No. 1253 of 1977 is by Ajai Singh against an order of the learned ill Additional Sessions Judge, Agra, dated 24th August 1977 setting aside the order of the Magistrate dated 2nd August, 1977 releasing truck No. U.P.U. 2645. Misc. Case No. 3861 of 1976 is an application by Ram Naresh Singh u/s 482 Code of Criminal Procedure, while Misg. Case No. 1169 of 1977 is an application by Abdul Razzaq under Sections 482 and 483 Code of Criminal Procedure. In these three cases & common question of law arose and, therefore, they were referred to us.

The facts concerning Cr. Revision No. 1253 of 1977 are that truck No. U.P.U. 2645 was seized by Hari Parwat police during investigation of a murder case. Ajai Singh applicant moved an application for release of the truck. This application was allowed by the Magistrate and the truck was released in favour of the applicant on his furnishing two sureties each of an amount of Rs. 10,000/-with a personal bond in the like amount. Nathi Lal opposite party filed a criminal revision in the court of the Sessions Judge, Agra. The revision was heard and decided by the learned III Additional Sessions Judge, Agra on 24th August, 1977. The revision was allowed and the order of the learned Magistrate releasing the truck in favour of the applicant Ajai Singh was set aside. Ajai Singh, therefore, filed a revision in this Court.

The facts relating to Cr. Misc. No. 3861 of 1976 are that tractor No. U.S.M. 3558 belonged to Ram Naresh Singh. On the night between 27th and 28th May 1976 the tractor was seized by the police of Kachhwa police station as some dacoits who had committed dacoity on the same night at 11.00 P.M. in the house of Lalta Prasad in village Ramapur, police station Kachhwa were travelling by it. An application was moved for release of the tractor by Ram Naresh Singh before the Magistrate on 4th June, 1976. It was dismissed on 9th June 1976. It is against the order of the Magistrate dated 9th June, 1976 that the application u/s 482 Code of Criminal Procedure was moved in this Court.

Cr. Misc. Case No. 1169 of 1977 relates to truck No. U.P.I. 505. Abdul Razaq applicant claimed to be its owner. It was seized by the police in connection with an offence u/s 457/380 IPC. It was alleged that 31 bags of cotton yam which were stolen property had been transported by the truck. The applicant Abdul Razzaq moved an application for release of the truck before the Metropolitan Magistrate, Kanpur who rejected it. The applicant filed a revision in the court of the learned Sessions Judge, Kanpur. The revision was disposed of by the learned VII Addl. Sessions Judge Knpur it was dismissed. It was against the order of the learned VII Additional Sessions Judge, Kanpur that the applicant Abdul Razzaq moved an application u/s 482 Code of Criminal Procedure.

The impugned orders in all the three cases were based on the authority reported in Nannoo Mal v. Sher Mohammad Khan 1976 AWC 251. In that case the police seized a truck along with its trolley from the possession of the applicant Nannoo Mal in connection with a case under Sections 147, 420 and 341 IPC. Sher Mohammad Khan made an application for release of the truck and the trolley in his favour. The Magistrate allowed the application and released the truck and the trolley in favour of Sher Mohammad Khan, Nannoo Mal filed a revision in the court of Sessions. The Additional Sessions Judge who heard the same dismissed. The revisionist Nannoo Mai thereupon made an application under the provisions of Section 482 Code of Criminal Procedure, 1973 which was heard by Hon''ble Katju, J., who was of the view:

A plain reading of Section 457(1) Code of Criminal Procedure, 1973 clearly shows that it is applicable only when the property seized is not produced before a criminal court during an inquiry or trial. A magistrate under this section can make an order regarding the seized property only after the inquiry or trial is concluded and the seized property is in fact not produced in the inquiry or trial. He cannot make an order regarding the seized property under this section during the investigation of the case. u/s 523(1), Code of Criminal Procedure, 1898 it was open to a Magistrate to pass orders regarding the disposal of seized property during the investigation of the case. There is however no provision in the Code of Criminal Procedure, 1973 similar to Section 523(1), Code of Criminal Procedure, 1898. A Magistrate has therefore, no jurisdiction to pass orders regarding the disposal of seized property during the investigation of case under the Code of Criminal Procedure, 1973. There appears to be a lacuna in the Code of Criminal Procedure, 1973 in this regard. It is however, well settled that courts cannot correct mistakes of legislatures and fill in lacuna in statutes. This has obviously to be done by the legislature itself. The order of the Magistrate and of the I Additional District and Sessions Judge were accordingly set aside.

At the time of admission of Misc. Case No. 1169 of 1977 Hon''ble H.N. Kapoor, J. doubted the correctness of the decision in the case of Nannoo Mal v. Sher Mohammad Khan 1976 AWC 251 and he was of the view that the matter required reconsideration by a larger Bench. Accordingly he made a reference in that case. Similarly a reference was also made in Cr. Revision No. 1253 of 1977 and Misc. Case No. 3861 of 1976. The question for determination in these three cases is, therefore, regarding the import of the provisions of Section 457(1) Code of Criminal Procedure, 1973 and it is to be seen whether the decision reported in Nannoo Mal v. Sher Mohammad Khan 1976 AWC 251 is a correct statement of law or not.

Section 457(1) Code of Criminal Procedure 1973 provides as follows:

Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a criminal court during an inquiry or trial the Magistrate may 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 457 is one of the provisions in Chapter XXXV of the Code of Criminal Procedure entitled as ''Disposal of property''. There are two other Sections - Sections 451 & 452 - On the same subject which have some bearing on the interpretation of Section 457. Section 451 empowers the Court to order for the interim custody or disposal of the property produced before it during any inquiry or trial. Section 452 gives jurisdiction to a Criminal Court to order for disposal of property produced before it during any inquiry or trial at the conclusion of the Inquiry or trial. "Section 457, on the other hand, deals with property seized by any police officer but ''not produced before a Criminal Court during an inquiry or trial.'' It is more or less a residuary provision dealing with property not covered by Sections 451 and 452 and is applicable when (1) the property has been seized by a police officer; (2) such a seizure is reported to a Magistrate under the provisions of the Code of Criminal Procedure; and (3) the property so seized is not produced before a Criminal Court during an inquiry or trial. The ambit of the last condition depends upon the meaning of the words is not produced before a Criminal Court during an inquiry or trial."

The cardinal principle of interpretation of statutes is that, words should be read in their ordinary, natural and grammatical meaning unless such a reading leads to absurdity. If the words are susceptible of another meaning, the court may adopt the same. In the expression ''such property is not produced before a Criminal Court during inquiry or trial'' the legislature has used present indefinite tense in passive voice. As such it is not permissible to interpret them to mean ''may not be produced in Court in an inquiry or trial at any time'' or as ''will not be produced in an inquiry or trial.'' So that the Magistrate has to wait until an enquiry or trial is held by a Criminal Court and the property is actually not produced in that Court. The words is not produced etc'' have reference to the point of time when the Magistrate to whom seizure has been reported is called upon to make an order for disposal of such property. At the relevant time i.e., when he has to make an order for disposal of property the Magistrate has to ascertain if the property is produced of not in a Criminal Court during an inquiry or trial. If it is produced, he will have no jurisdiction to deal with it. In case it is not produced before a Criminal Court during an inquiry or trial, he will make an order for its disposal in the prescribed manner.

A Magistrate may have to exercise jurisdiction u/s 457 in different situations and circumstances. A person whose property has been seized may apply to the Magistrate for its release while the investigation is still in progress and as such before the commencement of an inquiry or trial and before an occasion to produce the seized property before a Criminal Court arises. Such a situation arose in the case reported in Ambika Roy Vs. The State of West Bengal, . A Division Bench of the Calcutta High Court held:

On a consideration of the relevant provisions of the Code and in the light of the principles of interpretation of statutes, it is abundantly clear that Section 457 of the Code of Criminal Procedure, 1973 is in the context of the earlier provisions laid down in Chapter XXXIV and should not be construed bereft of such context. The words "such property is not produced before a Criminal Court during an inquiry or trial" merely refer to the stage of investigation and not the stage of inquiry or trial. If the property is produced in the Criminal Court during an inquiry or trial, Section 451 of the new Code would apply and not Section 457. The words relied upon by the Chief Metropolitan Magistrate, Calcutta, therefore do not constitute a bar but a condition precedent not a disqualification but a qualification; and not an exception but an essential ingredient forming the mainspring of such application. The learned Chief Metropolitan Magistrate, Calcutta, has misconstrued the said words to find ultimately that "in this case there is non-production but the non-production is not during trial but prior to trial". The learned Magistrate proceeded on the purported footing that the inclusion of the aforesaid words in the statute required in the first place the non-production of such property as opposed to production; and secondly that the factum of such non-production must be during an inquiry or trial. It is abundantly clear, however, that ultimately there is no cloud and the legislature In Its wisdom merely used the said words in order to differentiate the various stages, viz., the stages of an inquiry or trial, completion of trial and that of investigation etc. In this particular case it appears from the records, that the conditions precedent enjoined in Section 457 of the Code of Criminal Procedure, 1973 have been duly fulfilled viz., that the factum of seizure has been reported to a Magistrate under the provisions of this Code and that the property produced has not been produced during an inquiry or trial but at the stage of investigation.

Similar are the facts of the case reported in M.S. Jaggi Vs. Subaschandra Mohapatra, . Relying upon the authority reported in Ambika Roy''s case it was held that the expression "and such property is not produced before a Criminal Court during an inquiry or trial" in Sub-section (1) of Section 457 refers merely to a stage of investigation and not the stage of inquiry or trial.

Again there may be a case where the police after completing the investigation submitted a final report u/s 169 Code of Criminal Procedure, an aggrieved party might approach the Magistrate although the stage is prior to commencement of an inquiry or trial.

A third case may be where one may approach him during an enquiry or trial in respect of property not produced before the court holding enquiry or trial.

Again an application may be made for release of property seized, but not produced in court, after conclusion of inquiry or trial.

We find nothing in the language of Section 457 Code of Criminal Procedure to restrict its application only to the last category of cases, and take away the jurisdiction of the Magistrate until trial or inquiry is held and the property is actually produced in the Court or during investigation of the case. The provision might be availed of in other situations also. In our view, therefore, the statement of law made in Nannoo Mal''s case is not accurate, being too narrow.

Cr. Revision No. 1253 of 1977 is allowed, the order of the learned III Additional Sessions Judge, Agra dated 22nd August 1977 is set aside and the order of the Magistrate is restored.

Application in Cr. Misc. Case No. 3861 of 1976 is also allowed and the order of the Magistrate dated 9th June 1976 is set aside. The property has already been released by this Court. The Magistrate may, however, pass such an order as may be necessary in the circumstances of the case regarding its disposal and security.

Application in Cr. Misc. Case No. 1169 of 1977 is also allowed and the order of the Metropolitan Magistrate, Kanpur and of the VII Additional Sessions Judge, Kanpur are set aside. The property has already been released by this Court. However, the Metropolitan Magistrate, Kanpur may pass such order as to its disposal and security as is warranted by the circumstances of the case.