Indrakumar Faredun Irani and vs State of Maharashtra and others

These 23 applications involve similar questions of law and fact and they have been heard together and this judgment disposes of all those cases.

The facts giving rise to these criminal applications are that a large number of cars registered with Delhi Regional Transport Office were stolen during the period from 1981 to 1983 and the owners of those cars lodged reports about the thefts of their cars at the local police-stations having jurisdiction at Delhi. In some of the first information reports the engine numbers and the chassis numbers of the cars were given and of some of the cars the engine numbers and the chassis numbers were found during investigation. The local police station could not succeed in recovering those cars and, therefore, in 1983 the matter was entrusted to the Anti-Auto Theft Squad at Delhi. The police-officers working in that Squad in February 1983 got clue that some of those cars were brought to Bombay and they were disposed of at Bombay under fake registration numbers and the registration numbers were later on got changed. Those officers from Delhi and Chandigarh went through the registers maintained at the Regional Transport Office, Bombay, and from the engine numbers and chassis numbers they were having with them they could trace out the persons who were possessing those cars. They approached the persons who were possessing those cars and they found those cars at the residences of those persons. The cars were inspected and they found that they did bear the engine numbers and the chassis numbers of the stolen cars. From the engine numbers and the chassis numbers the police-officers were satisfied that those cars were the cars stolen from Delhi and they were brought to Bombay and under fake registration numbers they were sold and later on the registration numbers were got changed at the Regional Transport Office, Bombay. Those officers, after preparing the necessary panchnamas giving all the details, seized those cars and handed over copies of the panchnamas to the persons from whom the cars were seized. Thereafter those cars except the car involved in Criminal Revision Application No. 62 of 1983 were taken to Delhi and they were produced before the Magistrate having jurisdiction. The Magistrate having jurisdiction, after considering the claims of the persons who claimed that those cars belonged to them, handed over the custody of some of those cars to the claimants after obtaining necessary bonds from them, obviously under S. 457, Cr.P.C. The present petitioners from whom the cars were seized filed petitions in this Court under S. 482, Cr.P.C.

The contention of the petitioners is that they purchased those cars from Bombay parties, who are respondents Nos. 4 in some of these applications, through brokers and they paid the price thereof. According to them, they are the bona fide purchasers for value without the knowledge of the cars being stolen property. They got the cars registered in their names and also took out insurance policies. The petitioners aver that they apprehended that the respondents-police officers might remove the cars to Delhi and Chandigarh and it would cause grave prejudice to the petitioners. The petitioners submitted that they were willing to co-operate with the Delhi and Chandigarh Police investigating those cases and that the cars should be given in their custody on the terms and conditions this Court deems fit and proper. They sought an injunction restraining the respondents-police officers from removing the cars from Bombay pending the decision of the petition. As stated earlier, all the cars except the car in Criminal Revision Application No. 62 of 1983 have been removed from Bombay to Delhi and Chandigarh.

Avtar Singh, Senior Inspector of Police, North Police-station, Chandigarh Respondent 2 in Criminal Application No. 189 of 1983 filed his affidavit in that application and in other cases Ramulal Meena, Sub-Inspector, Delhi Traffic Police, Delhi; Sukhbir Singh, Inspector of Police, Delhi; and Sitaram, Assistant Commissioner of Police, Delhi, have filed affidavits in the cases respectively investigated by them. In their affidavits they have stated that the owners of the cars stolen from Delhi and Chandigarh had lodged complaints to the local police-stations having jurisdiction. In some cases the engine numbers and the chassis numbers were given by the owners of the cars and in other cases the engine numbers and the chassis numbers were found during investigation. The investigating officers got a clue that some gangs of vehicle lifters were active in Delhi and also further got a clue that the stolen cars in Delhi were sold out in Bombay. On the basis of this information they rushed to Bombay and at Bombay they went to Regional Transport Office and checked the registers and records maintained there and they found that the cars having the engine numbers and the chassis numbers of the stolen cars were sold in Bombay with fake registration numbers. They took out the names and addresses of the persons who had purchased those cars and they seized the cars after preparing the necessary panchnamas and the copies of the panchnamas were given to the persons from whom the cars were seized. They stated that in Criminal Revision Application No. 62 of 1983 the car was given in the custody of the person from whom it was seized after obtaining his bond, as per orders of this Court, and other cars were taken by them to Delhi and Chandigarh and were produced before the concerned Magistrate and the concerned Magistrate in some of those cars passed orders regarding custody of those cars pending investigation and trial.

Mr. Ahmed A. Irani, learned Counsel for the petitioners in some of these applications, contends that the cars seized at Bombay could not have been taken away by the Delhi and Chandigarh Police to those places. According to him, those cars should have been given in the custody of the persons, that is, the petitioners, from whom they were seized. He also submitted that though this Court had passed orders in the matters, the police officers hurriedly removed the cars before those orders were communicated to them. According to the learned Counsel, all those cars should be brought back to Bombay and should be given in the custody of the persons from whom they were seized, after obtaining necessary bonds from them.

The learned Public Prosecutor Mr. M. R. Suryawanshi contends that the police-officers have rightly acted as per the provisions of Sections 102 and 457 Cr.P.C. and this Court cannot exercise powers under S. 482 Cr.P.C. to pass orders regarding the custody of those cars when there are specific provisions in the Code of Criminal Procedure authorising the concerned Magistrates to pass orders regarding custody of the property seized by the police during the investigation of cognizable offences and also during the trial of those cases. According to the learned Counsel, the police-officers in seizing the cars and taking them to the Magistrates having jurisdiction over the areas from which the cars were stolen have not committed any irregularity. According to him, they have perfectly acted as per the provisions of law in the Code of Criminal Procedure vide Sections 102 and 457 thereof and, therefore, the petitions filed in this Court for exercising inherent powers under S. 482 Cr.P.C. are not tenable.

The learned Counsel Mr. Irani in support of his contention that this Court can pass appropriate orders for the custody of the property seized by the police-officers from Delhi and Chandigarh relied on the decision of the Punjab and Haryana High Court in Deo Dutta Sharma Vs. Manohar Lal and Others, . He took me through the whole report of the judgment. The report of the decision clearly shows that it does not support the contention of the learned Counsel. In that case, a case regarding the theft of motor-car No. DLK 1661 was registered at the town of Hapur in Uttar Pradesh. That vehicle was found at and taken into possession in Ambala Cantonment by the police on 20th July 1972, under S. 550 Cr.P.C. On the basis of the information that followed, the respondents were sent up for trial on a charge under S. 411 I.P.C. At an earlier stage the said vehicle had been given on Sapurdari to a resident of Ambala Cantonment, on an application moved by one of the accused-respondents. The prosecution, however, secured the cancellation of the Sapurdari above-mentioned. It was thereafter that the petitioner, claiming to be the registered owner of the vehicle and the holder of its insurance certificate, moved an application for obtaining the custody of the motor-car. On the other hand, one of the accused-respondents also made a similar prayer before the trial Court. The learned Magistrate adverted to the claims of the above two persons to custody and rejected both on the ground that difficult questions of law and fact were involved, as each side was relying on certain documents in their favour. He further observed that the question of the release of the motor-car to either party would be decided at the time of the final decision of the criminal case. Aggrieved by the rejection of his application the petitioner then moved the learned Sessions Judge, Ambala, in revision, who summarily rejected the same with an observation that no fault could be found with the order of the trial Magistrate. Being aggrieved by the rejection of the revision the petitioner moved the Punjab and Haryana High Court. The learned Single Judge of the Punjab and Haryana High Court held that it was inapt to decline to decide the issue of custody merely on the ground that some difficulty was involved in deciding the rival claims of the parties. He has held that it was the duty of the trial Court to expeditiously decide as to who prima facie was entitled to possession and should have entrusted the vehicle to such a claimant, leaving the other parties to their remedies within the civil law. Therefor, the learned single Judge held that it was an erroneous exercise of judicial discretion to causally postpone the issue of a custody of a motor vehicle by the trial Court till the final decision of a case which may take a long time. The learned Single Judge further held that save in exceptional circumstance the issue of the custody of motor vehicles (with sufficient safeguards for the production during the course of the trial) must be expeditiously decided. This decision, relied on by the learned Counsel, does not in any way support the contention of the learned Counsel that the petitioners could rush to this Court for orders regarding custody of the property and this Court, notwithstanding the provisions of S. 457 Cr.P.C. which empowers the Magistrate having jurisdiction, to pass orders regarding custody of the property seized by the police, could pass the orders regarding custody of the property. In the Cr.P.C. 1898, the provisions regarding orders to be passed for custody of the property seized by the police during investigation were to be found in S. 523. The provisions of the said S. 523 were considered by this Court in Husensha Rahimansha v. Mashaksha Mujafarsha (1910) 11 Cri LJ 339. The Divisions Bench of this Court therein held that S. 523 authorised the Magistrate to pass the order regarding delivery of the property. The short judgment recorded therein can be advantageously reproduced. It reads thus :-

"Section 523 of the Cr.P.C. invests a Magistrate acting under it with the power to make such order as he thinks fit respecting the disposal of the property or its delivery to the person entitled to its possession. There is no order respecting the disposal here, because the word ''disposal'' is something different from ''delivery''. Here what the Magistrate did was that he ordered the property, which was in possession of the Police, to be made over to the complainant. S. 523 says that a Magistrate may order its delivery, if he thinks fit, to the person entitled thereto. The Magistrate does not decide the question of title but merely decides the question of possession. The fact that the accused had been in possession of the property when the charge was made is not conclusive. The question is who is entitled to its possession. As was said in In re Ahmed Saheb, (1888) U Cr. C 365, in such a case the Magistrate is bound to institute an inquiry under this section before making any order touching the right, not of property, but of possession to the property seized by the Police. The Magistrate had a discretion governed by the provisions of S. 523. He had to apply his mind to the question as to who was entitled to the possession of the property, and with such materials as were placed before him, he came to the conclusion that the complainant was. We see no reason, under these circumstances, to interfere with the judicial discretion exercised by the Magistrate. We decline to interfere and direct that the record and proceedings be returned."

Section 457 of the Cr.P.C. 1973, is on the lines of S. 523 of the Cr.P.C. 1898. Section 523 reads thus :-

"S. 523. The seizure by any police officer of property taken under S. 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitle to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property."

Their Lordships of the Supreme Court in Anwar Ahmad Vs. State of U.P., , after reproducing the provision of S. 523 observed thus (Para 3) :-

"It would thus appear from a perusal of this provision that the moment a police officer seizes a property suspected to have been stolen or which is the subject-matter of an offence, he has to report the matter to the Magistrate concerned and it is for the Magistrate to pass such orders as he thinks fit regarding the disposal of the property. It is true that this provision read with S. 523 undoubtedly authorizes the police to seize the property and to make a summary order for the custody of the property, but neither S. 523 nor Regn. 165(ii) of the U.P. Police Regulations] authorizes the police officer to take a bond from the person to whom the property is entrusted. The policy of the law appears to be that the execution of the bond involves a civil liability and, therefore, it is in the fitness of things that it should be executed before a Court."

(The square bracketed portion supplied.)

As there was no provision for the police to hand over the property on bond in the custody of the same one without obtaining the orders of the Court, there was always a difficulty in carrying the bulky property from the place where it was seized to a distant place where the Court was situated. To obviate this difficulty S. 102 of the Cr.P.C. 1973, was suitably amended in 1978 and sub-sec. (3) in the following terms was inserted in the said S. 102 :-

"102.(3) Every police officer acting under sub-sec. (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same."

After the said amendment the police-officer could give the custody of property to any person on his executing a bond undertaking to produce the property before the Court. The provisions authorising the Magistrate to pass appropriate orders regarding custody of the property seized by the police are contained in S. 457 of the Cr.P.C. 1973. Those provisions read thus :-

"S. 457. (1) Whenever the seizure of property by any 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.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto to appear before him and establish his claim within six months from the date of such proclamation."

The provisions of S. 457 of the Cr.P.C. 1973, have been considered by the Supreme Court in Ram Parkash Sharma Vs. State of Haryana, . Their Lordships of the Supreme Court at page 1283 (of AIR) : (at p. 1121 of Cri LJ) of the report lay down the law thus :-

"S. 457 (of the Cr.P.C. 1973) covers the facts of the present case. The police have recovered a considerable sum of money from the appellant and the money is stated to be seized in connection with an offence registered against an accused person, namely, Shri Bansi Lal. Whether the appellant himself will be a witness or an accused is not possible to state at the present moment according to the Counsel for the State. Be that as it may, the situation is squarely covered by S. 457, Cr.P.C. However, the fact that the court has power to dispose of property seized by the police but not yet produced before the court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release the seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return."

The decision referred to above clearly show that it is the Magistrate who has to pass the orders for the custody of the property seized during the investigation.

The learned Counsel for the petitioner Mr. Irani in support of his contention that this Court acting under the provisions of S. 482 of the Cr.P.C. 1973, can pass orders regarding the custody of the property during investigation and trial relied on the decision of the Rajasthan High Court in Jai Singh v. State of Rajasthan (1988) 1 Crimes 286. It was a petition under S. 482 against the order of the Sessions Judge, City Jaipur, by which he dismissed the revision petition filed by the petitioner for the return of the motor cycle which was confiscated by the police. The notice of the petition was given to the Public Prosecutor on 23rd January, 1987 and he was directed to produce the case diary. The learned Public Prosecutor on the day when he was to produce the diary stated that he had not received the case diary and he was unable to assist the Court in that regard. Being upset by such reply of the learned Public Prosecutor, the learned Single Judge of the Rajasthan High Court observed thus :-

"This is very sad affair that the State is so negligent and the Investigation officer is so powerful that in spite of the direction of the court, he did not produce the case-diary today. This Court being the highest Court of the State cannot work on the mercy of the Investigating Officer. If the case-diary is not submitted by the Investigating Officer, it is the matter between the Public Prosecutor and the Government of Rajasthan. Court is nothing to do so far as the Administration of the Police Department is concerned. I see no reason to adjourn this case on this ground where the Investigating Officer has disobeyed the order of this Court. Mr. Kaushik, learned counsel for the petitioner, argued that a case under S. 307 I.P.C. was registered at police station Shashtri Nagar and in that FIR there is no allegation against the petitioner Jai Singh as well as no fact has been mentioned that any offence has been committed when this motor-cycle was used. I have perused the order of the learned Sessions Judge who has rejected the revision petition in a very cursory manner. As there is nothing on the record to show that the motor-cycle was any more needed by the Police nor it was argued by the learned Public Prosecutor that the motor-cycle should not be released under such circumstance, it means that this motor-cycle has been unnecessarily keep in custody by the Police. If at all they need this motor-cycle for the purpose of identification by the witnesses, the purpose could be served if a photograph of this motor-cycle showing the clear registration No. be taken and kept on the record. Therefore, the order of the learned Sessions Judge is set aside and this petition is accepted. It is directed that photograph of the motor-cycle, as directed above, be taken immediately and the motor-cycle be handed over to the petitioner on ''Superdagi Nama'' having a surety of Rs. 20,000/- for producing in the same condition as and when desired by the Court. The motor-cycle will be handed over to the petitioner on showing the registration No. the proof of his ownership, before the Investigating Officer."

This case is no authority for the proposition that the persons from whom the police seized the property during investigation, suspecting it to be the stolen property, by passing the Magistrates who are authorised under the Cr.P.C. 1973, to pass appropriate orders regarding the custody of the property, can rush to the High Court and invoke the inherent jurisdiction under S. 482 of the Cr.P.C. 1973, to pass orders regarding the disposal of the property.

In view of the law discussed above, I find that Magistrate having jurisdiction is the proper authority for passing orders under S. 457 of the Cr.P.C. 1973, regarding the custody of the property seized by the police during investigation. The parties cannot directly approach this Court and invoke the powers of this Court under S. 482 of Cr.P.C. 1973, for passing orders regarding the custody of the property pending investigation and trial of a criminal case. It is only when the Magistrate concerned does not exercise the jurisdiction vested in him or exercises it with material irregularity and the Sessions Judge in the revisional powers u/s 399 Cr.P.C. fails to correct the error, that the party can approach this Court and this Court can certainly redress the grievance by using the inherent powers of this Court under the said S. 482. The present petitions directly filed in this Court invoking the inherent powers under S. 482 are not at all maintainable and all of them are liable to be dismissed. At this stage, the learned counsel for the petitioners in some of the applications, Mr. Irani, states that liberty be granted to the petitioners to approach the concerned Magistrate for seeking custody of the cars. They are always at liberty to move the proper forum for redressing their grievance.

In the result, all the petitions are dismissed and the rules granted therein are discharged.

Petitions dismissed.