S. Sivaperumal vs B. Gopal and State

Pratap Singh, J.—The complainant in Crime No. 717 of 1989 on the file of the second Respondent has filed the Crl. O.P. Nos. 298 to 303

of 1991 praying to set aside the order in Crl. M.P. Nos. 211 to 216 of 1990 on the file of the XI Metropolitan Magistrate who has passed a

common order holding that Petitioner (first Respondent therein) is entitled to the sum of Rs. 69,000/- in Indian Overseas Bank, Kayalpatnam,

standing in his name in R.D. and directing release of the said sum on the Petitioner therein executing a bond for Rs. 70,000/- for immovable

property with one surety for a like sum on condition that he should produce the amount as and when directed by the court.

The first Respondent herein is the accused in the cases arising out of Crime No. 717 of 1989 on the file of the second Respondent. He is the

Petitioner in Crl. M.P. Nos. 211 to 216 of 1990. The Petitioner herein is the first Respondent and the Sub-Inspector, Central Crime Branch is the

third Respondent in that petition and Public Prosecutor is arrayed as second Respondent. On perusal of the common order in Crl. M.P. Nos. 211

to 216 of 1990 the following factors emerge:

According to the Petitioner herein who is the complainant in Crime No. 717 of 1989 the first Respondent herein, who is the Petitioner before the

court below, was employed under him and during the course of his employment he had misappropriated large amounts and has deposited the same

in Indian Overseas Bank, Kayalpatnam and that amount should not be given to the first Respondent. According to the 1st Respondent, while he

was under the employment of the Petitioner, he had made savings and deposited the amount in Indian Overseas Bank, Kayalpatnam, to the

knowledge of the Petitioner himself and so that amount should be given to him.

The Sub-Inspector who had investigated the case has stated that he has arrested the first Respondent on 28-7-89 and seized Rs. 50,000/- and

the pass book of Indian Overseas Bank under mahazar and has remanded the same in court. He has further stated that during the course of

investigation, he came to know that the first Respondent has deposited amount in Indian Overseas Bank, Kayalpatnam and under an impression

that the said amount may be concerned with the alleged misappropriated amount, he had freezed that amount and at that time the investigation was

not over and now he has got no objection for releasing that amount in favour of the first Respondent.

It is seen from the order of court below that the amount in deposit in Indian Overseas Bank, Kayalpatnam to a tune of Rs. 69,000/- was freezed

u/s 102 of Code of Criminal Procedure. But that fact was not intimated to the court by the investigating officer. As per Section 102(1), Code of

Criminal Procedure, any police officer may seize any property which may be alleged or suspected to nave been stolen, or which may be found

under circumstances which create suspicion of the commission of any offence. As per Section 102, Sub-section 3 every police officer acting under

Sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction. In this case, no such report has been sent by the Sub-

Inspector to the Court. As per the order of the Court below, only after the filing of the petition in Crl. M.P. Nos. 211 to 216 of 1990, the freezing

of this amount u/s 102, Code of Criminal Procedure was reported to the Court. The Court below has observed as follows:

While so, petition was filed u/s 451, Code of Criminal procedure by the first Respondent herein, in Crl. M.P. Nos. 211 to 216 of 1990 praying for

release of the freezed amount. The learned Magistrate has passed order u/s 457, Code of Criminal Procedure.

In para 7 of the order, the court below has stated as follows:

Then the learned Magistrate has passed the order as I have stated at the outset.

The learned Counsel appearing for the Petitioner contended that u/s 457(1) Code of Criminal procedure 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 and

in this case, the seizure of the property by the police officer was not reported to the Magistrate under the provisions of the Code and hence the

Magistrate has no jurisdiction to pass an order directing release of the amount to the first Respondent. In the case before me, admittedly the police

Officer has not reported the freezing of the amount to the Magistrate u/s 102(3), Code of Criminal Procedure. That has been mentioned by the

Court below in its order itself and I have reproduced the relevant portion in the earlier portion of my judgment. Only in the Counter, the Sub-

Inspector who investigated the case had informed that fact, which is subsequent to the filing of these petitions in Crl. M.P. Nos. 211 to 216 of

1990. That cannot be characterised as a report to the concerned Magistrate under the provisions of the Code of Criminal Procedure. The learned

Counsel appearing for the Petitioner relied upon the ruling reported in Administration of Dadra and Nagar Haveli v. C.B. Shah 1986 Cri. L.J.

1087 In it, it was held that Section 457 of the Code can be invoked only when three facts are established, that firstly there must be seizure of the

property, secondly that seizure must be by the police officer and thirdly that seizure must be reported to the Magistrate under the provisions of the

Code. In the case before me, the third requisite is absent. He further relied upon the ruling reported in Shivcharan v. State and Anr. 1990 (3)

Crimes 597. In it, it was held that a plain reading of the language of Section 457, Code of Criminal Procedure also makes it clear that regarding the

seizure of the property by any police Officer, it must be reported to the Magistrate and thereupon the Magistrate acquired the jurisdiction to pass

suitable orders whether the property seized was produced before him or not, but it is not so when the seizure is not reported to the Magistrate.

These rulings apply to the facts of the case before me. The ruling reported in Ram Parkash Sharma Vs. State of Haryana, has also been placed

before me. In it, the question of jurisdiction of the Magistrate to pass an order Section 457, Code of Criminal Procedure did not come up for

consideration. At the risk of repetition, I would like to point that the reporting of the seizure or freezing of the amount as the case may be, must

under the provisions of the Code of Criminal Procedure. Regarding seizure u/s 102(1), Code of Criminal Procedure, the reporting of the same to

the Magistrate is provided u/s 102, Sub-section 3 of the Code of Criminal Procedure. That has not been done in this case. As such, order passed

u/s 457, Code of Criminal Procedure by the Court below is erroneous and without jurisdiction and has to be necessarily set aside.

In the result, these petitions are allowed setting aside the order passed in Crl. M.P. Nos. 211 to 216 of 1990 on the file of XI Metropolitan

Magistrate, Saidapet.