Orissa High Court
Ramesh Chandra Jena vs The State Of Orissa And Anr. on 17 June, 1992
Equivalent citations: 1992(II)OLR197
JUDGMENT B.N. Dash, J.
1. In this application Under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code'), the sole point for determination is whether after passing of an order Under Section 457 of the Code directing release of a seized property in favour of a person, the Magistrate can direct that person to produce the seized property in Court for the purpose of consideration of an application filed by another person with prayer for return of the seized property to him. The facts giving rise to the filing of the present application may be briefly noted.
2. The motor-cycte bearing registration No. OIU-4222 was seized by the police on 18-1-1992 as an abandoned or unclaimed property. One Ramakanta Jena (opp. party No. ?.) was the original registered owner of the said vehicle. After the seizure, the petitioner Ramesh Chandra Jena filed an application Under Section 457 of the Code, registered as Crl. Misc. Case No. 14/1992, for return of the vehicle on the allegation that the vehicle had been sold by Ramakanta Jena to him on receipt of a consideration of Rs. 18,000/- on 2-10-1991 and he had also sworn an affidavit to that effect on 3-10-1991. On verification of the R.C. book, affidavit and the money receipt produced by the petitioner, the learned Sub-Divisional Judicial Magistrate, Jagatsinghpur passed order on 5-2-1992 directing release of the vehicle in favour of the petitioner on his executing a bond of Rs. 10,000/-with an undertaking to produce the said vehicle as and when required by the Court. Having come to bow about such order, Ramakanta Jena filed an application on 17-2-t992 claiming return of the vehicle to him and after objection thereto was filed by the petitioner, the learned SDJM passed the following order on 9-3-1992 :
"Petitioner files hazira. Stranger Ramakanta Jena is present through his advocate. The petitioner Ramesh Chandra Jena is directed to produce the documents of this vehicle and the vehicle OIC 4222 (typographical mistake for OIU 4222) on 24-3-1992 for consideration of the petition filed by the intervenor, Ramakanta Jena. Call on 24-3-1992."
Being aggrieved by such order the present application challenging its correctness has been filed.
3. Shri J. R. Dash, the learned Counsel for the petitioner con- tends that after passing of an order Under Section 457 of the Code directing release of a seized property in favour of one person, the Magistrate becomes functus officio and so, if after passing of such an order, another application Under Section 457 of the Code is filed by another person, he cannot, legally pass an order directing the party in whose favour he had originally passed the release-order to produce the seized property, Shri A. Mohapatra for the opp. party No, 2, on the other hand, contends that an order Under Section 457 of the Code is an interim order if such order is passed without hearing the party entitled to the possession of the seized property and as such the Magistrate continues to have jurisdiction to alter his previous order to give relief to the party really entitled to the possession of the seized property. ^
4. In view of these rival contentions, it becomes necessary to refer to Section 457 of the Code which is as follows :
"457. Procedure by police upon seizure of property-
(1) Whenever the seizure of property by any police 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 to known, the Magistrate may order the property to be delivered to him on such conditions (it any) as the Magistrate thinks fit and if such person is unknown,. the Magistrate may detain it and shall, in such case issue a. pro- clamation specifying the articles of which sack 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 consideration of the above section indicates that there is no provision for passing of an interim order. The mere fact that security was demanded from the petitioner when the vehicle was handed over to him would not make the order dt 5-2-1992 (original order) and interim-order. As a matter of fact, the word of Sub-section (2) of Section 457 them- selves contemplates- that property can be delivered to a person who is entitled to-it on conditions That being so, if is II able to be held that the order dated 5-2-1992 was a proper and legal order passed Under Section 457 of the Code and such order could not be reviewed by passing the impugned order dated 9-3-1992 whereby the learned Magistrate obviously thought that the subsequent application by opp, party No. 2 filed on 17-2-1932 was open to be considered by him, which was wrong- Then a question may arise whether a person really entitled to possession of the seized property will go without any remedy, if the seized property has been delivered to a wrong person. The answer to this question is not far to seek. The aggrieved party may challenge such an order before any higher forum or he may approach the Civil Court for redressal of his grievance. But once an order Under Section 457 of the Code is passed, rightly or wrongly, the same is final so far as the return of the seised property under the Code is concerned and the Magistrate becomes functus officio. The view taken by me finds support from the decisions in Ghulam Ali v. Emperor, AIR(32) 1985 Lahore 47 : Muna shwar Suz Singh v. State, AIR 1956 Allahabad 199 ; and Union of India v. Hadibandhu Das, AIR 1967 Orissa 154.
5. On behalf of opp. party No. 2, Shri Mohapatra refers to the decisions in Devendra Kumar v. State of U.P., 1988 Crl.L J. NOC 14 (All.): Ramavatar Sharma v. State of Orissa, 1989 Crl.L.J. NOC 126 (Ori): and S. Abdul Jabber v. Khaleal Ahameo; 1988 Cri. L.J. 810, but the decisions are not on the point on controversy. In the case of Devendra Kumar (supra), the .question for consideration was whether the seized vehicle should have been delivered to the registered owner or to its alleged purchaser and the Allahabad High Court came to hold that the vehicle should be delivered to the registered owner. In the case of Ramavatar Sharma (supra), it was decided that a discretion vested in a Magistrate Under Section 457 of the Code should be exercised judicially and that the expression -entitled to possession" would normally mean the rightful title to hold the seized property. In S. Abdul Jabbar (supra) it was decided by the Karnataka High Court that when a seized vehicle is claimed both by the registered owner and the alleged purchaser, the vehicle should be released In favour of the registered owner. These propositions of law can hardly be doubted but since they are not on the controversy they will not help the opp. party No. 2 in this case.
6. In view of the aforesaid conclusion, it has to be held that there has been abuse of the process of the Court by passing the impugned order and as such the impugned order is liable to be quashed by exercising the inherent power vested in the Court Under Section 482 of the Code.
7. In the result, the Crl. Misc. case is allowed and the impugned order dt. 9-3-1992 is Hereby quashed.