Razia Sultan vs Romesh Kumar Verma

Sanjay Dhar, J

1) The petitioner has challenged order dated 03.04.2018 passed by Judicial Magistrate, 1st Class (Sub Judge), Baramulla, whereby the learned Magistrate has released JCB machine No.JK14C-1146 in favour of the respondent.

2) It appears that respondent had filed a complaint against the petitioner alleging commission of offence under Section 406 RPC. In the complaint, it was alleged that the respondent had assigned the work of laying underground OFC/4G cables from Keran Post to Gujjar Road, Kupwara, to the petitioner and handed over the JCB machine in question to her with a condition that after the execution of the work, she shall hand over the JCB machine to him. It was further alleged that after the execution of the work, the petitioner refused to hand over the JCB machine to the respondent and, as such, she has misappropriate the said property and committed criminal breach of trust.

3) Upon receipt of the aforesaid complaint, the learned Magistrate, it seems, recorded the preliminary statements of the complainant and his witnesses, whereafter he deferred the issuance of process and directed SHO, Police Station, Baramulla, to undertake investigation in terms of Section 202 of the Cr. P. C. The record further shows that the SHO concerned conducted the investigation and submitted his report before the learned Magistrate. In his report, SHO has submitted that the respondent had handed over the JCB machine in question to the petitioner who retained the same even after the execution of the work as accounts between the parties were not settled. As per the report of the police, there is some misunderstanding between the parties who are levelling allegations against each other. The police during investigation of the case seized the JCB machine and kept it on the suparadnama of the petitioner.

4) It appears that the respondent moved an application before the learned Magistrate seeking release of the seized JCB machine which was resisted by the petitioner by filing a reply thereto. The learned Magistrate, after hearing the parties, has passed the impugned order, whereby he has directed that the interim custody of the JCB machine be given to the respondent/complainant as he happens to be the owner of the machine.

5) The petitioner has challenged the impugned order on the ground that no offence is made out against her and, as such, it was not open to the learned Magistrate to release the JCB in question in favour of the respondent. It is contended that the transaction between the parties is purely of civil nature and the criminal court had no jurisdiction to hand over the interim custody of the JCB machine to the respondent.

6) I have heard learned counsel for the parties and perused the material on record including the trial court record.

7) Learned counsel for the petitioner has contended that it was not open to the learned Magistrate to assume jurisdiction and pass the impugned order without issuing process against the petitioner in the main complaint. According to the learned, since there was no material on record before the learned Magistrate that would, prima facie, show that any offence was made out against the petitioner, as such, neither the machine in question could have been seized nor its interim custody could have been allowed in favour of the respondent.

8) Learned senior counsel appearing on behalf of the respondent, on the other hand, has contended that, admittedly, respondent happens to be the owner of the machine in question, as such, the learned Magistrate was fully justified in granting interim custody of the seized machine in his favour. According to the learned counsel it is a settled law that interim custody of a vehicle has to be given in favour of its owner. The learned senior counsel has further submitted that even before issuance of process against the accused, it was open to the learned Magistrate to pass the impugned order. In this regard, learned senior counsel has relied upon the judgment of this Court in the case of Abdul Rashid Keena vs. Sakeena, 1994 S.L.J 430.

9) The short question which arises for determination in this case is as to whether the learned Magistrate was justified in passing the impugned order whereby the seized machine has been released in favour of the respondent, even prior to issuing process in the main complaint. In order to answer this question it would be apt to refer to the provision contained in Section 516-A of the J&K Cr. P. C, which provides for disposal of property pending trial of a case. It reads as under:

516-A. Order for custody and disposal of property pending trial in certain cases.—When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay or if it is otherwise expedient so to do, the Court, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

From a bare perusal of the aforesaid provision, it is clear that an order for custody and disposal of property can be made by a Criminal Court during any inquiry or trial. However, the condition precedent for passing such an order is that it should appear to the said Court that the property in question has either been used for commission of an offence or any offence should have been committed regarding the said property.

10) Another provision of the J&K Cr. P. C, which is required to be noticed in this context, is Section 23 of the Cr. P. C. It reads as under:

Procedure by police upon seizure of property taken under section 51 or stolen.—(1) The seizure by any police officer of property taken under section 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 entitled to the possession thereof or if such person cannot be ascertained respecting the custody and production of such property.

(2) Procedure where owner of property seized unknown.—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. 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.

A perusal of the aforesaid provision reveals that when seizure of a property is effected by a police officer either upon personal search of an arrested person or the property in question is suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence and the same is reported to a Magistrate, he gets jurisdiction to pass an order regarding disposal of such property.

11) From a perusal of both the aforesaid provisions, it becomes clear that a Magistrate, before passing an order of disposal of a property seized by the police, either during investigation, inquiry or trial or even in a case where the seizure of the property has been reported to the Magistrate in terms of Section 523 of the J&K Cr. P. C, he has to satisfy himself that an offence appears to have been committed regarding such property or the same has been used for commission of an offence or the same has been found under circumstances which create suspicion of commission of any offence or the same is stolen property or seized during search of an arrested person. In the instant case, the police report does not at all indicate as to whether any offence has been committed in respect of the JCB machine in question or whether the same has been found under circumstances which create suspicion of commission of any offence. Even the learned Magistrate, while passing the impugned order, has not anywhere indicated in the said order that the JCB machine in question has been either found in the circumstances which create suspicion of commission of an offence or the same has been used for commission of an offence or any offence has been committed in respect of the said JCB. The fact that the learned Magistrate has not issued the process in the main complaint against the petitioner makes it clear that he has yet to make up his mind whether any offence is disclosed from the material on record.

12) The ratio laid down by this Court in the case of Abdul Rashid Keena vs. Sakeena (supra), which has been relied upon by learned counsel for the respondent, does not apply to the facts of the instant case as in the said case, the police, in its inquiry report, had categorically reported to the Chief Judicial Magistrate that if the seized property is left with the petitioner therein, the same would be misappropriated. Thus, in the said case, the police report clearly indicated that there is apprehension of commission of an offence in respect of the seized property. In the instant case, no such apprehension has been expressed by the police in its report. In fact, the Investigating Officer has, after seizing the vehicle, kept it on the suparadnama of the petitioner herself, which means that the police is not apprehending commission of any offence in respect of the JCB machine in question. Even the learned Magistrate has not indicated any such apprehension in the impugned order.

13) For the foregoing reason, the impugned order passed by the learned Magistrate is without jurisdiction as the learned Magistrate has not indicated in the impugned order anything to suggest that there is apprehension of commission of any offence in respect of the seized JCB machine. The same, therefore, deserves to be quashed.

14) Accordingly, the petition is allowed and the impugned order passed by the learned Magistrate is set aside. However, it shall be open to the learned Magistrate to pass a fresh order after considering the material on record and recording satisfaction as to whether any offence appears to have been committed in respect of the seized property.

15) A copy of this order be sent to the learned Magistrate for information and compliance.