State vs Surain Singh Langeh

State is aggrieved by Order dated 10.3.2005 passed by Judicial Magistrate First Class (Forest Cases), Jammu, whereby a shop/ office situated

at Second Floor at K.C. Plaza, Jammu allegedly purchased by Surain Singh Langeh, has been ordered to be released on the Supurdnama of the

applicant, who in terms of the order has been directed to furnish an undertaking that he shall not dispose of the property by any mode of transfer to

any person, firm, corporation or company.

2, The State of Jammu and Kashmir questions the order impugned in the revision petition, interalia, on the ground that the order is without

jurisdiction and tantamounls to interfering with the investigation, which was being monitored by Hon'ble High Court in OWPNo.496/2003.

3, Sh. B. S. Salathia, learned Additional Advocate General, appearing in support of the revision petition submits that F.I.R No.9/2001, under

Sections 420, 406, 120B of the Ranbir Penal Code, stands registered by Crime Branch, Jammu against M/s Endowment Investment India

Limited. The Finance Company has looted thousands of depositors of their hard earned money and the petitioner is not a bonafide purchaser and,

as such, is not entitled to the release of the property in his favour.

4, Sh. K. S. Pathania, learned counsel for Surain Singh Langeh, on the other hand, submits that the seizure of immoveable property by Police was

itself illegal. Police has authority and power to seize only movable property and that immoveable property cannot be seized during the investigation

of any case.

5, Sh. K. S. Pathania further submits that he is a bonafide purchaser of the property and no fault can be found with the order of the learned

Magistrate, who has directed release of property on Supurdnama and has not passed any final order of release of property in his favour.

Sh. Pathania refers to Mrinal Kant Malik and Ors v. State of U.P and anr, reported as 1 (1999)CCR163.

6, Sh. B. S. Salathia, learned Additional Advocate General, urged in rebuttal that the expression ""property"" occurring in Section 5 and Chapter

XLIII of the Code of Criminal Procedure Svt. 1989, would not necessarily mean moveable property. According to the learned counsel

immoveable property is not excluded from the operation of the aforementioned Chapter and Section 51 of the Code of Criminal Procedure Svt.

1989. Learned Counsel refers to State of Maharashtra v. Tapas D. Neogy, reported as (1999) 7 SCC 685.

7, I have considered the submissions of learned counsel for the parties and have gone through the records, as also relevant provisions of the Code

of Criminal Procedure.

8, Application filed by Surain Singh Langeh for the release of shop/office situated at Second Floor at K.C.Plaza, Jammu, was resisted by the

Investigating Officer, Central Investigation Team, Headquarter Crimes and Railways J and K, Jammu, on the premise that certain documents were

seized from the property situated at K. C. Plaza, Jammu and after seizing documents the premises was sealed in F.I.R No. 9/2001 under Sections

420, 406,120B of the Ranbir Penal Code.

9, The Code of Criminal Procedure does not contemplate sealing or taking possession of immoveable property except by the orders of a

Magistrate. The scheme of the Code vests powers of search of immoveable property in the Police officers, but that too in accordance with the

provisions of the Code.

10, No specific provision of law has been brought to the notice of the Court, under which, power may be conceded to a Police officer to seal or

take possession of the immoveable property. The scheme of the Code does not permit any Police officer to deal with IMMOVEABLE Properties

and such power has been vested only in the Magistrates, who may consider attachment or otherwise of immoveable properties, in accordance with

the provisions of the Code.

11, Chapter XLIII of the Code of Criminal Procedure envisages various situations where a Magistrate/Criminal Court/s may deal with the release

of property seized by Police, during the investigation of the case or the property regarding which offence appears to have been committed or is

found to have been committed. There is only one provision in this Chapter, which deals with the restoration of possession of immoveable property

and that is contained in Section 522 of the Code of Criminal Procedure. Rest of the Sections in the Chapter deal only with ""moveable properties"".

The release of moveable properties under this Chapter include the release of those properties, which are seized under Section 51 or regarding

which offence appears to have been committed or is found to have been committed.

12, The expression property used in this Chapter barring Section 522 would, thus, in my opinion, mean only ""moveable properties' and not

immoveable properties"" as canvassed by Sh. B. S. Salathia, learned Additional Advocate General.

13 I am not inclined to agree with Sh. B. S. Salathia that section 51 empowers the police to seize or seal imoveable property/s if it is found that

purchaser of the property is not a bonafide purchaser.

14, Reliance placed by Sh. B. S. Salathia on the judgment of Hon'ble Supreme Court in which it has been held that the Police has authority to stop

the operation of the Bank accounts and seize bank accounts, is not of any help to the learned counsel because bank accounts do not fall within the

definition of immoveable property and mere is no indication in the judgment that Section 102 would be attracted in case of seizure of moveable

properties also.

15, The view which I have taken is supported by the judgment cited by Sh. K. S. Pathania.

16, I, therefore, hold that the Police agency had acted without jurisdiction in sealing the property alleged to have been purchased by the

respondent. The question as to whether or not the respondent is a bonafide purchaser of the property: is foreign to the scope of the present

investigation and FIR and in that view of the matter, the respondent was entitled to release of property in his favour.

17, I, therefore, do not find any irregularity or illegality in the order impugned in the revision petition. This revision petition, therefore, fails and is.

accordingly, dismissed. Interim order, if any, shall stand vacated.