Nanoo Mal and Others vs Sher Mohammad Khan

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure.

According to the facts stated in the application a report under Sections 147, 420 and 341 IPC was lodged by opposite party No. 2, son of opposite party No. 1 against the Applicant and others on 11-6-75 at police station Hasanpur. The police thereafter seized truck No. USN 5873 along with the trolley from the possession of the Applicant on the same day (11-6-75). Aft, application was filed by opposite party No. 1 on 17-6-75 in the court of the 2nd Additional Munsif Magistrate, Moradabad for the release of the said tractor and the trolley in his favour. The application was allowed by the learned Magistrate on 18-7-75 and the truck and the trolley were released in favour of opposite party No. 1. The Applicant filed a revision in the court of the Additional District & Sessions Judge, Moradabad against the aforesaid order of the Magistrate which was dismissed on 7-8-75.

It may be mentioned that charge-sheet was filed against the Applicant and others on 14-11-75 in the court of the V Additional Munsif Magistrate, Moradabad on the basis of the report lodged against the Applicant and others by opposite party No. 2 on 11-6-75. The main question that requires determination is whether the Magistrate had jurisdiction to pass an order on 18-7-75 during investigation regarding the release of the tractor and the trolley under the Code of Criminal Procedure, 1973.

The seizure of the truck and the trolley from the possession of the Applicant was obviously u/s 102(1) Code of Criminal Procedure, 1973. Section 451 Code of Criminal Procedure, 1973 is applicable only to cases where the property is produced before any criminal court during the pendency of any inquiry or trial and Section 452 Code of Criminal Procedure 1973 applies to the stage when such an '' inquiry or trial is concluded. It is obvious that neither u/s 451 nor u/s 452 Criminal Courts are given the power to pass orders'' during the pendency of the investigation regarding the disposal of the property seized u/s 102(1) Code of Criminal Procedure.

Section 457(1) Code of Criminal Procedure, 1973 runs 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.

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 can not 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 ease. 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 a 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 dated 18-7-75 releasing the truck and the trolley in favour of opposite party No. 1 when the charge-sheet had not been filed against the Applicant and the investigation was still pending is therefore clearly without jurisdiction.

This application is accordingly allowed. The order of the 2nd Additional Munsif Magistrate, Moradabad, dated 18-7-75 and the order of the 1st Additional District & Sessions lodge, Moradabad dated 7-8-75 are set aside.

The record of the case shall be sent back to the court below at an early date.