AI Structured Summary
Not yet generated for this judgment
Judgment
Y.P. Nargotra, Judge
During investigation of FIR No. 100/2002 Police Station Bandipora a cow, a calf and one samawar and a Huqa came to be seized from the
possession of the accused. Both the complainant and accused applied before the Judicial Magistrate Bandipora for release of the seized property.
Ld. Magistrate has released the property in favour of the accused on superdnama on the following observations:
This court is not a Civil Court and has no power to decide any dispute about the title to the property even the section does not authorise a
Magistrate to decide which party is rightful owner of the property. Here the enquiry is limited to finding which party is entitled to possession of the
property. In considering the question as to who be entitled to possession of the property, there is always a presumption that the person actually in
possession of the property is the owner, thereof. The claim of the applicant is supported by the maternal uncle of the parties and also the accused
has not objected that he has not taken property forcibly from the applicant/complainant. He stressed on this point that he is the owner of the
property alongwith his sister. Therefore, I deem it proper that at this stage the interim custody is given to the applicant/complainant on Superdnama
on the following conditions:
That he shall not sell the same property and shall not change the shape of the same.
That he shall produce the same property before this court if and when required by this Court.
The complainant has come up in revision. Ld. counsel for the petitioner submits that Ld. Magistrate was not justified in releasing the property in
favour of the accused who had forcibly taken the property from the rightful owner. In support she relied upon 1987 Cri 12 (3) Guhati and AIR
1962, Bom but none of them lays down the proposition that the property cannot be released in favour of an accused. The person from whom a
property is recovered and seized can be presumed to hold the entitlement to posses the same until otherwise proved. Ld. Trial Magistrate has for
cogent reasons kept the property on the Superdnama of the accused and therefore no interference is warranted with the exercise of such discretion
by the Ld. Magistrate especially when the seized property has not been released finally but only as an interim arrangement. Therefore there is no
merit in the petition which is dismissed.