Mohan Singh vs State and Another

L.N. Chhangani, J.—This is a reference by the Sessions Judge. Bharatpur, recommending that the order of Munsiff Magistrate, Bbaratpur dated the 31st January, 1963, for recording evidence before passing order as to the disposal of the stolen property consisting of a pair of oxen, be set aside and that the Munsiff-Magistra''e be directed to return the pair of oxen to the petitioner, Mohan Singh.

The facts which have given rise to this reference may be briefly stated as follows--The opposite party Samla lodged first information report with the Police Station. Sewar, on 29th of May, 1962, accusing the petitioner Mohansingh of an offence of theft in respect of a pair of oxen. A case against the petitioner for an abence u/s 380, Indian Penal Code, was registered by the police and investigation was commenced After the completion of the investigation the police submitted a final report in the case on 1st November, 1962 saying that no offence was committed by the accused. On 3rd November, 1962 the petitioner Mohan Singh submitted an application before tile Munsiff-Magistrate praying for the return of the pair of oxen to him oil the ground that the pair of oxen was taken from his possession

On the application of the accused a notice was directed to issued to the complainant to show cause why the property be not returned to the accused-petitioner. It may be stated here that even before receipt of the negative final police report the complainant had filed a complaint against the accused-petitioner accusing him of an offence u/s 380, Indian Penal Code. The Magistrate had taken cognizance of that report and had ordered a preliminary enquiry u/s 202, Criminal P.C. Consequently, when the complainant received notice of the petition of the accused-petitioner praying for the return of the pair of oxen, he opposed the delivery of the pair of oxen to the accused. The Magistrate by his order dated the 3lst of January, 1963, proceeded to record evidence of the parties before passing any order for the disposal of the pair of oxen.

The accused-petitioner went in revision to the Court of Sessions Judge, Bharatpur. The Sessions Judge has expressed the opinion that an enquiry was not at all called for in the facts and the circum-stances of this case. According to him Sub-section, (I) of Section 523, Criminal P.C. does not contemplate an enquiry and the Magistrate is competent to order delivery of the property to the person entitled to the possession thereof. Sub-section (2) of Section 523 contemplates an enquiry only when the person entitled to possession is not known. The Sessions Judge appears to have taken the view that since the possession of the pair of the oxen was taken from the petitioner and since the police submitted a negative report, the person entitled to possession cannot be said to be unknown and, consequently, direction ought to have been made for the delivery of the property to the petitioner and that no enquiry was necessary.

Mr. Soral for the complainant has opposed the reference. Mr, Rastogi for the accused-petitioner has supported the order of reference. Mr. Sampat Raj Singhi appearing for the State has also opposed the reference.

The first question calling for determination is: whether in the absence of any specific provision Section 523, Criminal P.C. can be invoked for disposing of property seized by the police during investigation when after investigation the police submits a final report of the negative character stating that no offence has been committed ? On this point there is conflict of judicial opinion. In Purshottam Das Banarsidas Vs. State, a learned Single Judge of the Allahabad High Court held that Section 523, Criminal P.C. cannot be attracted to such a case. The reasoning which weighed with the learned Judge in coming to this conclusion was as follows--

That in order to attract Section 523, Criminal P.C. the seizure of the property must be u/s 550, Criminal P.C. The learned Judge observed that "though Section 5S3 does not specifically refer to Section 550, it refers to those circumstances of seizure which are mentioned in S 550." He further observed that Seizure of property u/s 550 must be reported at once to a Magistrate who is bound to pass orders for its disposal" and further expressed an opinion that the final report of the police seeking directions for disposal of the property is not the same thing as reporting the seizure, The eventual conclusion of the learned Judge was expressed in the following terms:

The Code contains no provision for disposal of property seized during the investigation which results in a final report; evidently it leaves it to the police to dispose of it. A Magistrate has nothing to do with it. The order of disposal is intended by the Code to be an executive order of the police. It is open to the police to seek directions from a Magistrate and if the Magistrate chooses to give certain directions, he does not act under the Code and the directions given by him are not open to challenge In any superior Court

A contrary view has been taken by the Madhya Pradesh High Court in Ganeshi Lal Ranchhoddas Mahajan and Another Vs. Satya Narain Tiwari and Another, According to the learned Judge who decided the case Section 523 Criminal P C refers to the seizure of the property by police u/s 51, Criminal P.C. as also to property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence. The learned Judge further observed "though Section 550 empowers a police officer to seize property alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence it is significant that there is no reference to Section 550 as there is to Section 51 in Section 523, Criminal P.C. The learned Judge took the view that Section 523, Criminal P.C. will also include cases where the property was seized by the police during investigation. According to him, Section 523, Criminal P.C. is intended to deal with oases of property seized by the police of its own accord as distinct from property seized under a warrant of a Court. On the reasoning of the learned Judge it is clear that Section 523, Criminal P.C. is attracted to a case where the police submits a negative report stating that no offence has been made out.

There are other cases where a similar view has been taken. Reference may be made to Sulleman Haji Ellias v. Emperor AIR 1942 Sind 89 and Bhupati Bayen and Others Vs. The State,

After considering the language of Section 523, Criminal P. C and scrutinising the reasoning of the various cases, I have no hesitation in coming to the conclusion that Section 523, Criminal P.C. should be liberally construed so as to be applicable to all cases where there has been no enquiry or trial and consequently, where the police submits a final negative report stating that no offence has been made out, the Magistrate is competent to pass appropriate orders for the disposal of the property u/s 523, Criminal P.C. I see no adequate justification for limiting the language of Section 523, Criminal P.C. to the seizure u/s 51 and Section 550, Criminal P. C., particularly when Section 523, Criminal P.C. avoids to make reference to Section 550, Criminal P.C. It also appears to me improper to permit the police authorities to dispose of the property according to their own discretion.

The next question which then emerges for consideration is : whether the Magistrate could order an enquiry in a case of the present type?

It is true that u/s 523, Criminal P.C. the Magistrate can pass an order for the disposal of the property without an enquiry if the person en. titled to the possession of the property can be ascertained on a consideration of the materials appearing from the police record. However, the expression ''''person entitled to possession" is significant and it should not be equated with the expression "the per. son from whose person the property was taken." It may be that in determining the question as to who should be considered entitled to possession, the fact that the property was recovered from the possession of a particular person during investigation may be very relevant and a weighty consideration but it cannot always and necessarily be conclusive. Consequently, even when it may be ascertainable that the property was recovered from the possession of a certain person, still the jurisdiction of the Magistrate to direct an enquiry to ascertain the person entitled to possession cannot be barred.

Examining the present case in the light of the principle enunciated above, I may observe that the application of the accused petitioner was being opposed by the complainant who had already filed a complaint on which the Magistrate had already taken cognizance. In these circumstances, if the Magistrate directed an enquiry and thought it proper to record evidence before passing a final order for the disposal of the pair of oxen the Magistrate could not be said to have acted without jurisdiction and the Sessions Judge was hardly justified in making a reference at this stage.

I may at this stage take note of one more submission made by Mr. Rastogi, appearing for the accused. It was contended by him that the complainant having filed a complaint the Sessions judge''s recommendation should be treated as one amounting to an order of disposal of property u/s 516-A, Criminal P.C. The Sessions Judge has indicated in the order of reference that the Magistrate could have imposed conditions while ordering the delivery of the property to the accused requiring him to produce the property in Court as and when required.

I am unable to accept this contention for the following reasons--

That the complainant''s complaint has not yet been registered and the accused has not yet been summoned.

The property has not been produced in Court in connection with that complaint.

Although the Session? Judge referred to the competence of the Magistrate to impose condition, he has not made any such recommendation in the operative part of the order,

In the light of the foregoing discussion, the reference is rejected. The Magistrate will now proceed to decide the question as to who is entitled to the pair of oxen after such enquiry as he deems fit to make. The Magistrate will also consider the question whether the complainant having filed a complaint the pair of oxen should be got produced in connection with that complaint and be dealt with u/s 5X6-A, Criminal P.C. as an interim measure. In case he directs the production of the pair of in connection with the complaint, he will finally dispose it of u/s 517, Criminal P.C. on the conclusion of the trial of the complaint.