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Judgment
Petitioner is the registered owner of the Motor Vehicle bearing Registration mark and No. JKD2581. The respondent is alleged to be the Driver
of the vehicle, who drove the vehicle, who drove to Kargil unauthorisely by deception. Petitioner filed a written complaint before Chief Judicial
Magistrate Srinagar on 21.8.96 with incriminating allegation of deception and theft of the vehicle against in the accused respondent. The Judicial
Magistrate (City Munsiff Srinagar) to whose file the complaint was transferred, after recording the statement of complainant and the witness,
referred the matter to concerned Police under Section 202 Cr.P.C. for inquiry. During the enquiry, the vehicle was seized by the police. The
Judicial Magistrate (SubRegistrar) Srinagar released the vehicle on 26.09.1996 to the petitioner on superdnama.
On completion of inquiry under section 202 Cr.P.C. the report was presented before the Judicial Magistrate (City Munsiff) Srinagar. The
Magistrate dismissed the complaint and released the vehicle to accused. This order of 16111996 was challenged in revision before the Court of
1st Addl. District and Sessions Judge, Srinagar. The 1st. Addl. District and Sessions Judge Sringar found the order of dismissal of complaint and
disposal of the truck beyond pale of law and has come to the conclusion that both orders are illegal. The Court of reference has recommended that
the order regarding dismissal of complaint and disposal of property may be quashed. The reference with reasoned order alongwith the entire
record is before the Court.
The respondent is not appearing despite opportunities. In the over all circumstances of the case, the presence of respondent is dispensed with.
Heard learned counsel for the petitioner.
Complaint under section 379/420 R.P.C was transferred to Judicial Magistrate (City Munsiff) Srinagar under section 192 by Chief Judicial
Magistrate, Srinagar. The Judicial Magistrate (City Munisiff) Srinagar, after recording the summary of the statements of the complainant and his
one witness, directed an enquiry to be made by SHO Police Station Khanyar for .the purpose of ascertaining truth or falsehood of the complaint in
terms of Section 202 Cr.P.C.
The S.H.O Police Station, Khanyar submitted the report alongwith connected papers before the Court of Judicial Magistrate (City Munsiff)
Srinagar. The Magistrate on receipt of the report passed an order on 1611996 dismissing the complaint and releasing the vehicle JKD2581 to the
person from whom it was seized (to the respondent). Perusal of this order, on its plain language reveals that the complaint has been dismissed only
on the basis of the enquiry report received from the S.H.O. Police Station Khanyar and while dismissing the complaint, the Magistrate has not
taken into account, considered and applied his mind to the statements of complainant and the witness which he had recorded. Obviously, the
Magistrate has thoroughly infracted the provisions of Section 203 Cr.P.C. which provides that the Magistrate may dismiss the complaint if on
consideration of the statement on oath of the complainant and the witness (witnesses) and the result of the enquiry under Section 202 Cr.P.C., in
the judgment of the Magistrate, no sufficient ground for proceeding is made out. In fact it has to be an order, may be brief, but informed of the
reasons. The Magistrate has breached the provisions of Section 203 of the Cr.P.C by wholly ignoring and side tracking the statement of the
complainant and the statement of the witness, even when the order is read between the lines, it is found that the reasons for the order are
perfunctory and not as per legal and factual requirements of the case. The complainant's statement discloses incriminating allegations which the
Magistrate was under a legal duty to weigh and consider alongwith the report of the SHO before the Magistrate reached a conclusion whether to
take cognizance of the case or to dismiss it. By ignoring and skipping over these aspects of the case, the Magistrate has clearly committed an
illegality and gone beyond mandate of law in passing the impugned order. The order of the Magistrate releasing the vehicle to Respondent Ghulam
Hassan Jafiry, against whom the complaint had been filed by the petitioner regarding theft of the vehicle, while dismissing the complaint, is equally
illegal and in derogation of law.
From record, it is seen that the vehicle JKD2581 is registered as Load Carrier. In violation of Registration certificate and permit and other
documents covering the vehicle, it has been converted into a public transport vehicle (passenger bus). It is seen that regarding the vehicle, Judicial
Magistrate (Sub Registrar) Srinagar, to whom the matter regarding the disposal of the vehicle was entrusted after the complaint was received in
Court, has passed a detailed reasoned order, releasing the vehicle on superdnama of the owner of the vehicle. The complainant is shown as owner
in the Registration certificate of the vehicle. Even, certain conditions were attached to this order restraining transfer or change of vehicle and binding
the Registered owner to produce the vehicle before the Court in terms of the Court directions. The Magistrate while dismissing the complaint as
mentioned earlier released the vehicle to the person from whom it had been seized who is none other than the accused and that too at the
solicitation of the Advocate of the accused.
The question that arises is whether this order of the Magistrate to release the vehicle is covered by any provision of law. The order for disposal
of the truck could be under section 517 Cr.RC which interalia provides that on the conclusion of the enquiry, the Court may pass such orders as it
may think fit for disposal of the property by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or
otherwise of any property or document produced before the court or the custody of such property or document regarding which any offence has
been committed or which has been used for commission of any offence. As the Sub Registrar,(Judicial Magistrate) had already passed an order
keeping the truck on superdnama of its Registered owner there was no occasion at all for the City Magistrate (Judicial Magistrate) to order release
of the truck to accused. It is not the question of the possession, but the claimed possession that has to be decided. As the Magistrate had not taken
the cognizance of the complaint and instead dismissed the complaint under Section 203 of Cr.RC., the accused, and for that matter his counsel,
was not before the court and had no such occasion as to participate in the proceedings. It only suggests that the Magistrate went beyond his
authority to handover the vehicle to accused. Besides, the said Judicial Magistrate (City Munsiff) had no powers to review the orders of
SubRegistrar Judicial Magistrate regarding disposal of the vehicle as such power of review is unknown to the Code of Criminal Procedure. So
seen from any angle, the order appears to be not correct, proper or legal.
For the aforesaid reasons, the reference made by the learned 1st Additional District and Sessions Judge is accepted and the impugned order is
quashed with the direction to the Magistrate to pass fresh orders in the mater in accordance with provisions of law.
The decision be certified to the court below alongwith record.