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Judgment
[1] Heard Mr. B.K. Bhagawati, learned counsel for the petitioner and Mr. P.P. Borthakur, learned counsel for the respondent No. 1. Also heard Mr. K.K. Parasar, learned Addl. Public Prosecutor, Assam, appearing for the State respondent No. 2.
[2] The instant criminal revision petition has been preferred by the petitioner under Section 397 and 401 Cr.P.C. read with Article 227 of the Constitution of India challenging the impugned order dated 25.05.2023, passed by the learned Special Judicial Magistrate, Assam, Guwahati, District- Kamrup (Metro), in Dispur P.S. Case No. 1020 of 2015 dismissing the application for zimma filed by the present petitioner.
[3] The case of the petitioner, in brief, is that on 03.04. 2015, the opposite party approached the petitioner to take on hire a readymade steel hanger and its accessories for putting up a pendal at Aizwal, Mizoram for the purpose of “NE Trade Expo” and accordingly the petitioner agreed for such hire. The petitioner gives such steel hanger pendal to the prospective hirer and the opposite party very often used to take such pendal on hire basis from the petitioner on the agreed terms and conditions. The petitioner handed over the steel hanger to the opposite party on 05.04.2015 and the said hanger consisted of Tripal/ clothes etc. with steel structure, measuring 15,000 Sq. Ft. The Trade Expo was conducted by the Organizer and the opposite party installed the said steel hanger from 12th to 29th April, 2015 which was extended to 10th May, 2015 at Aizwal. There was huge storm and rain which resulted damage to the said steel hanger accordingly the opposite party come back to Guwahati alongwith the steel hanger structure and demanded compensation etc. Otherwise, he would retain the said readymade hanger. The hired materials steel hanger was to be unloaded in the temporarily go-down of the petitioner but some of the materials i.e. boxes numbering 8 were unloaded at that place but the opposite party refused to unload the other steel structures and wanted to forcefully take it but the petitioner tried to resist the same. Then the opposite party assaulted the petitioner and forcefully took away the hanger materials in the same truck. The petitioner had no option but to lodge FIR before the Dispur P.S. 1015/2015 on 23.05.2015 and it was registered U/S 385/325 of I.P.C.
[4] The petitioner had filed a zimma petition in Dispur P.S. Case No. 1020 of 2015 which was registered on the basis of an FIR lodged by the present respondent. It may be mentioned that during investigation of the Dispur P. S. Case No. 1020 of 2015 instituted by the respondent, the I.O. had handed over zimma of the iron frame structure weighing 2400 kgs which were seized by seizure list dated 23.05.2015 vide M.R. No. 455 of 2015 to the respondent/ informant, Shri Ranjan Barpatra Gohain.
[5] The accused person had filed another petition bearing No. 4921 before the Magistrate seeking the zimma of the said seized articles. The Court after procuring a report from the Investigating Officer in this regard, rejected the petition vide order dated 20.04.2016 by observing that as the Investigating officer had already handed over the seized articles under Section 102 of the Cr.P.C., the seized articles are no more in custodia legis, i.e., in custody of the Court.
[6] The accused person thereafter preferred a revision petition against the said order dated 20.04.2016. The revisional Court, i.e., the Court of Additional Sessions Judge No.3, Kamrup Metro, Guwahati vide order dated 16.10.2017, observed that as the I.O. has submitted Final Report (F.R.) in this case holding that the dispute between the parties is civil in nature and the FR is yet to be accepted by the Court, the petitioner, i.e., the accused person is at liberty to move a fresh petition before the concerned Magistrate seeking zimma of the articles seized by the I.O. during investigation at the time of taking up of the case record by the Eleka Magistrate for consideration of the Final Report.
[7] Thereafter, on 31.10.2017, the accused person filed a zimma petition before the Magistrate and on 29.04.2019, the informant filed an objection against the said petition. In the meantime, on 12.12.2018, the informant filed objection against the F.R. submitted by the police and prayed for directing the police to investigate into the case afresh.
[8] It is submitted Inter alia on behalf of the petitioner/accused person that the FIR of the instant case was lodged by the informant falsely claiming that he purchased the steel hanger and its accessories from the petitioner, whereas, the petitioner never sold such items nor the accused person could show any such sale letter etc. Instead, he forcefully took away the steel structure and illegally retained it from the petitioner/owner and lodged an FIR making various false statements. The police without investigation allowed the informant Ranjan Borpatra Gohain to retain the same and submitted a report before the Court to the effect that the police seized the steel structure and gave the possession of the same to the informant.
[9] It is submitted on behalf of the petitioner/ accused person that the on 05.04.2015, petitioner had actually handed over the seized article, i.e. the steel hanger along with other accessories on hire to the informant for organizing an event at Alzawl, Mizoram, namely "NE Trade Expo". As stated by the opposite party/ informant, there was a huge storm and rain which resulted in damage to the steel hanger structure and as such he demanded compensation, otherwise, he would retain the same. As agreed to, the hired materials were to be unloaded in the temporary go-down of the petitioner but only some of the materials, i.e., 8 boxes could be unloaded at that place as the opposite party refused to unload the steel structure and wanted forcefully to take it but the petitioner resisted the same. The opposite party assaulted the petitioner and forcefully took away the hanger materials. The petitioner had no option other than to lodge an FIR before the Dispur PS which was registered as Dispur PS Case No 1015/2015.
[10] Though, the FIR was lodged on 23.05.2015, yet the police manipulated the date and showed it to be registered on 27.05.2015. Thereafter, in Dispur P. S. Case No. 1015/2015, the petitioner moved a petition claiming zimma of the hanger and its accessories, however, the Court disposed of the same vide order dated 19.01-2016 stating that the articles seized in Dispur PS Case No. 1015/15 have already been given in zimma to the petitioner.
[11] It is further submitted on behalf of the petitioner that petitioner has submitted enough documents to prove his title and ownership of the seized article namely the steel hanger. On the other hand, the opposite party has merely claimed that he purchased the same from the petitioner but he could not submit any document to that effect. Therefore, he has illegally retained the said article in collusion with the police.
[12] The learned Magistrate after taking note of the fact that despite submission of the informant/ present petitioner that he has enclosed various documents, no such document was found in the case record, finally, disposed of the zimma application by holding as follows:-
“ Dispur P.S. Case No. 1020/2015.
Date. 25.05.2023.
Now coming back to the zimma petition, as already discussed, the petitioner/accused person has prayed for the article which was already given on zimma to the informant by the police. The petitioner/accused person has claimed its ownership, but perusal of the FIR shows that the informant has himself stated that the accused person is the original owner of the seized article and has also stated that later on it was sold to him by the accused. Thus, It is seen that both the petitioner/accused person and the opposite party/informant have claimed ownership over the concerned seized article. To decide the ownership, a full-fledged trial is required and the matter is purely civil in nature. Furthermore, as the Final Report is accepted, at this stage, there is no scope of trial in this case and owing to the reasons stated above and considering the fact that adverse claim by both parties being a civil dispute, the prayer made by the accused person In petition No. 2510 is rejected and the said petition is disposed of accordingly.
However, the accused person is at liberty to approach the appropriate forum with regard to his claim.”
[13] The learned Magistrate by the said order also rejected an application filed by the informant/ respondent for further investigation and accepted the final report submitted by the I.O. in the aforesaid case i.e. Dispute P.S. Case No. 1020 of 2015. Since the learned Magistrate had accepted the final report (F.R.) filed by the I.O. after rejecting the application of the informant/ respondent for further investigation, the inquiry had come to an end and therefore, the provisions of section 452 Cr.P.C. would come into play.
[14] The said section reads as follows
“452. Order for disposal of property at conclusion of
trial.-(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to the entitled to possession thereof or otherwise, of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2)………………………………………………………………………………
(3)…………………………………………………………………………………..”
[15] From the above, it appears that the essential ingredients of the offence are that (i) the inquiry or trial is concluded, (ii) the property or document in question must be produced before the court or is in the custody of the court or regarding which any offence appears to have been committed or which has been used for the commission of any offence. Therefore either the property /document must be produced before the court or should be in its custody or some offence must appear to have been committed in respect of such property/ document or the same has been used for the commission of any offence.
[16] In the present case, the I.O. after seizing the property, in question, handed over custody of the same to the informant/ respondent and therefore, the provisions of section 102 of Cr.P.C. applies which reads as follows:-
“102. Power of police officer to seize certain property.- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may found under circumstances which create suspicion of the commission of any offence.
(2)Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
[(3) Every police officer acting under sub-section (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 [or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation], 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.]
……………………………………………………………………………….”
[17] From a plain reading of sub-section (3) of Cr.P.C. above, it is clear that the custody of the property even though seized under section 102 Cr.P.C. continues to remain custodia legis i.e. in the custody of the Court. Once the ingredients of section 452 Cr.P.C. are satisfied and a party approaches the Magistrate seeking custody of the property which claim is opposed by the opposite party/ by another party, the Magistrate cannot wash his hands off by simply stating that the matter is purely civil in nature.
[18] It is true that to decide ownership, a full-fledged trial may be required, as held by the learned Magistrate. But the learned Magistrate failed to appreciate that it was not the ownership of the property that was required to be decided by the Magistrate but only as to who was best entitled to the custody of the property.
[19] By rejecting the zima petition of the petitioner, without entering into the merits of his claim, the learned Magistrate had effectively granted or confirmed the custody of the property in favour of the opposite party which was granted to him by the police, without however a semblance of material in support of the custody in favour of the opposite party. Such approach is bound to cause injustice to the person who claimed custody and who approached the Magistrate claiming custody of the property, in question.
[20] The said impugned order had the effect of merely, rubber-stamping the action of the I.O. in handing over the custody of the property to the opposite party/ respondent without exercising proper jurisdiction under section 452 Cr.P.C.
[21] In view of the above, the impugned order cannot be sustained and is accordingly set aside and the learned Magistrate is directed to consider the matter afresh on the basis of materials that have been submitted by the parties.
[22] Since the matter is a very old pending one, it is expected that the said exercise will be completed by the learned Magistrate as expeditiously as possible, preferably within a period of (1) one month from the date of receipt of a copy of this order.
[23] With the aforesaid observation, the criminal revision petition stands disposed of.