Madras High Court
P. Manikandan vs The State on 11 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.502 of 2012 P. Manikandan ... Petitioner Vs The State represented by The Sub-Inspector of Police Dindigul Town West Police Station Dindigul District. ... Respondent PRAYER Criminal Revision Petition filed under Section 397 r/w. 401 of Cr.P.C., against the order passed by the learned Judicial Magistrate No.I, Dindigul, Dindigul District in Cr.M.P.No.3628 of 2012 vide her order dated 8/10/2012 and set aside the same and consequently, direct the above said learned Magistrate to return the case property viz., the Key of the petitioner's shop in connection with the case in Crime No.555 of 2012 on the file of the Respondent. !For Petitioner... Mr.R.Anand ^For Respondent... Mr.P.Kandasamy, GA (Criminal Side) - - - - - :ORDER
The Petitioner/Complainant has projected the instant Criminal Revision Petition as against the order dated 8/10/2012 in Cr.M.P.No.3628 of 2012 passed by the Learned Judicial Magistrate No.I, Dindigul.
2. The Learned Judicial Magistrate No.I, Dindigul, while passing the order in Crl.M.P.No.3628 of 2012 on 8/10/2012 has inter alia observed that in regard to the disputed property, it comes to be known that the investigation is pending and till date, the Investigating Officer has not seized the disputed property's key and in the circumstance, the Petitioner's objection filed under Section 457 (2) of Cr.P.C., is not maintainable and also he opined that in as much as the key of the disputed property has not been handed over to the Court, the relief sought for by the Petitioner cannot be granted and consequently, dismissed the petition.
3. According to the Learned Counsel for the Petitioner, the Learned Judicial Magistrate No.I, Dindigul has passed the impugned order of dismissal in Cr.M.P.No.3628 of 2012 dated 8/10/2012 against Law, weight of evidence and probabilities of the case.
4. The Learned Counsel for the Revision Petitioner urges before this Court that the Learned Judicial Magistrates are empowered to monitor the investigation and they are also to issue appropriate instructions to the Investigating Officer and in the instant case, the trial Court has not directed the Respondent Police to seize the property viz., 'Key'.
5. Advancing his arguments, it is the submission of the Learned Counsel for the Petitioner that the 'key' of the Petitioner shop is an important incriminating article in the present case and the said key has been removed stealthily by the Accused of the present crime and that is the reason why First Information Report has been registered in respect of the offence under Sections 406 and 420 of IPC.
6. Expatiating his submissions, the Learned Counsel for the Petitioner contends that the Respondent/Accused has breached the trust in regard to the entrustment of key and ultimately, it has become the case property that too by adopting the character of incriminating article and in such a situation, it is mandatory on the part of the Respondent/Police to seize the said key for proceeding with the investigation.
7. The Learned Counsel for the Petitioner projects an argument that in as much as the First Information Report has been registered and also the averment in regard to the entrustment of key has also found a place therein, it is always open to the Petitioner/Defacto Complainant to work out his remedy for return of the key to him as per Section 457 of the Criminal Procedure Code.
8. That apart, the Learned Counsel for the Petitioner vehemently contends that the shop is not to be opened for a continuous period of two months and the Petitioner has suffered a lot and also the medicines available are inside which may get expired by this time.
9. The Learned Counsel for the Petitioner cites the decision of the Honourable Supreme Court in T.C.THANGARAJ Vs. V.ENGAMMAL AND OTHERS {(2012) 1 SUPREME COURT CASES (Cri) 568}, wherein at special page 569, it has held as follows:-
"In the impugned order, the High Court has not exercised its constitutional powers under Article 226 and directed CBI to investigate into the complaint with a view to protect the complainant's (respondent herein) personal liberty under Article 21 or to enforce the complainant's fundamental rights guaranteed by Part III of the Constitution. It exercised its power under Section 482 Cr.P.C., on a grievance made by the complainant, that her complaint that she was cheated in a loan transaction of Rs.3 lakhs by the three accused persons (all appellant-accused herein), was not being investigated properly because one of the accused persons was the Inspector of Police. This is not one of those exceptional situations calling for the exercise of extraordinary power of the High Court to direct investigation into the complaint by CBI. If the High Court found that the investigation was not being completed because the Inspector of Police was one of the accused persons, it should have directed the SP concerned to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154 (3), and not to CBI. Moreover, the Magistrate could monitor the investigation under Section 156 (3). Hence, the impugned order of the High Court is quashed, with directions tot he SP concerned to entrust the investigation to a Police Officer senior in rank to the accused officer involved."
10. Also, the Learned Counsel places reliance on the decision of the Honourable Supreme Court in CENTRE FOR PUBLIC INTEREST LITIGATION AND OTHERS Vs. UNION OF INDIA AND OTHERS {(2011) 1 SUPREME COURT CASES (Cri) 463}, at special page 475, in paragraph Nos.17 to 19, it is observed and laid down as follows:-
"17. At this stage, we may mention that during the course of hearing, the learned Solicitor General and Shri K.K.Venugopal stated that the Government of India and CBI would have no objection to a Court monitored investigation by CBI, but submitted that there is no reason for appointment of a Special Investigation Team. The learned Solicitor General also stated that the present incumbent in the office of CVC will recuse himself from the supervision of the investigation being conducted by CBI in connection with FIR No.RC-DAI-2009-A-0045 registered on 21/10/2009 or any other FIR which may be registered in connection with grant of UAS licences. Shri K.K.Venugopal added that the investigation being conducted by CBI can be supervised by the two Vigilance Commissioners subject to the limitation contained in the proviso to Section 8 (1) of the Central Vigilance Act.
18. We have considered the respective submissions and carefully scanned the record. We have also gone through the reports produced by Shri K.K.Venugopal and Shri Harin P.Raval. In our opinion, the Division Bench of the High Court committed a serious error by dismissing the writ petition at the threshold ignoring that the issues raised by the appellants, whose bona fides have not been doubted, are of great public importance. We are, prima facie, satisfied that the allegations contained in the writ petition and the affidavits filed before this Court, which are supported not only by the documents produced by them, but also the report of the Central Vigilance Commission, which was forwarded to the Director, CBI on 12/10/2009 and the findings recorded by the CAG in the Performance Audit Report, need a thorough and impartial investigation. However, at this stage, we do not consider it necessary to appoint a special team to investigate what the appellants have described as 2 G Spectrum scam because the Government of India has, keeping in view the law laid down in Vineet Narain Case and orders passed in other cases, agreed for a Court monitored investigation.
19. The reports produced before the Court show that CBI and the Enforcement Directorate have started investigation in the right direction. At the same time, keeping in view the statements made by the learned Solicitor General and the learned Senior Counsel representing CBI and with a view to ensure that in a serious matter like this, comprehensive and coordinated investigation is conducted by CBI and the Enforcement Directorate without any hindrance, we deem it proper to issue the following directions:-
(i). CBI shall conduct thorough investigation into various issues highlighted in the report of the Central Vigilance Commission, which was forwarded to the Director, CBI vide letter dated 12/10/2009 and the report of the CAG, who have prima facie found serious irregularities in the grant of licences to 122 applicants, majority of whom are said to be ineligible, the blatant violation of the terms and conditions of licences and huge loss to the public exchequer running into several thousand crores. CBI should also probe how licences were granted to large number of ineligible applicants and who was responsible for the same and why TRAI and DoT did not take action against those licensees who sold their stakes/equities for many thousand crores and also against those who failed to fulfil rollout obligations and comply with other conditions of licence.
(ii). CBI shall conduct the investigation without being influenced by any functionary, agency or insrumentality of the State and irrespective of the position, rank or status of the person to be investigated/probed.
(iii). CBI shall, it if has already not registered first information report in the context of the alleged irregularities committed in the grant of licences from 2001 to 2006 - 2007, now register a case and conduct thorough investigation with particular emphasis on the loss caused to the public exchequer and corresponding gain to the licensees/service providers even before the decision was made public vide press release dated 19/10/2007.
(iv) CBI shall also make investigation into the allegation of grant of huge loans by the public sector and other banks to some of the companies which have succeeded in obtaining licences in 2008 and find out whether the officers of DoT were signatories to the loan agreement executed by the private companies and if so, why and with whose permission they did so.
(v). The Directorate of Enforcement/agencies concerned of the Income Tax Department shall continue their investigation without any hindrance or interference by anyone.
(vi). Both the agencies i.e., CBI and the Directorate of Enforcement shall share information with each other and ensure that the investigation is not hampered in any manner whatsoever.
(vii). The Director General, Income Tax (Investigation) shall, after completion of analysis of the transcripts of the recording made pursuant to the approval accorded by the Home Secretary, Government of India, hand over the same to CBI to facilitate further investigation into the FIR already registered or which may be registered hereinafter."
11. He draws the attention of this Court to the decision of the Honourable Supreme Court in SAKIRI VASU Vs. STATE OF UTTAR PRADESH AND OTHERS {(2008) 1 SUPREME COURT CASES (Cri) 440, wherein at special page No.441, it is held that "Section 156 (3) of the Criminal Procedure Code is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation."
12. It cannot be gain said that the power of the Learned Judicial Magistrate to monitor the investigation of Police is very much implied as per Section 156 (3) of the Criminal Procedure Code.
13. Apart from the above, the Learned Counsel for the Petitioner submits that the Petitioner/Defacto Complainant is a tenant of the shop which belongs to Ardhanari and he runs 'Sun Medical Shop and General Provision Stores' and in order to develop his business, he borrowed a sum of Rs.10 lakhs from one Pandiyan as 'Hand-Loan' in the year 2009 and he has been regularly paying the interest for certain period and subsequently, because of the loss in business, he could not pay the dues. Thereafter, the said Pandiyan has come to his shop and demanded Rs.20 lakhs for the principal sum of Rs.10 lakhs coupled with interest and the Petitioner has not been in a position to pay the demanded amount. Further, the said Pandian forced the Petitioner to execute a document in regard to the 'Transfer of Tenancy' in his favour and the same has been executed in the presence of Notary on 31/8/2012 (by means of an unregistered document) and that the Petitioner is to pay profit as well as the monthly rent etc., and that he has been permitted to run the shop and also he has been entrusted with the key.
14. The Learned Counsel for the Petitioner brings it to the notice of this Court that the Petitioner purchased Pharmaceutical items for Rs.7 lakhs and they are kept in his shop and while this being so, on 10/9/2012, all of a sudden, Pandian has come to his shop and has taken the key, despite the objection made by him and that he demanded the return of key to him, but the said Pandian informed that Rs.22 lakhs in toto has to be paid back and unless the Petitioner pays the amount, he will not be given the key. Under these circumstances, the petitioner has filed a complaint before the Town Police, Dindigul and that First Information Report has been registered in Crime No.555 of 2012 under Sections 406 and 420 of IPC.
15. The Learned Counsel for the Petitioner submits that the claim made by Pandian is a clear violation of the relevant provisions of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2007 and in as much as the Petitioner's shop key is in the custody of Pandian, the Petitioner filed Cr.M.P.No.3628 of 2012 for recovery of the key from the accused Pandian and to handover the same to him and also sough proper protection for his shop articles besides sending the relief of restraining Pandian and his man and Agent from any way interfering with his conduct for running the Pharmacy business.
16. At this stage, the Learned Counsel for the Petitioner submits that the Respondent Police is not prepared to seize the key of the Petitioner's shop from the Accused Pandian and because of the necessity, the Criminal Miscellaneous Petition No.3628 of 2012 has been filed under Section 457 of Cr.P.C. Added further, Section 102 of the Code of Criminal Procedure, defines the power of a Police Officer to seize the property specially where the allegation of commission of offence is alleged.
17. According to the Learned Counsel for the Petitioner, as per Section 102 of the Criminal Procedure Code, a Police Officer may seize any property which may be alleged or suspected to have been stolen or which may be found under the circumstances, which create suspicion or commission of any offence. In the present case on hand, the property in issue is the 'Key' and that the same has not been seized by the Police and as such, Crl.M.P.No.3628 of 2012 (filed by the Petitioner) is to be allowed to promote substantial cause of justice.
18. Per contra, it is the contention of the Learned Government Advocate (Criminal Side) that 'Key' is not a weapon that is used in the crime alleged and also that key is not used for any offence and the Respondent Police is not empowered to seize the key and since the dispute in issue is one of civil in nature, it is for the Petitioner to seek appropriate remedy before the competent forum in accordance with law.
19. Also, it is the contention of the Learned Counsel for the Petitioner that the trial Court has only observed that 'till date, the Investigation Officer has not seized the key from the Respondent/Accused' and further, observed that the said key has not been handed over to the Court and in fact, the trial Court is empowered to monitor the investigation conducted by the Police. Moreover, the Learned Counsel for the Petitioner also referred to the contents of First Information Report, wherein the Revision Petitioner has figured as complainant. Based on the complaint lodged by the Revision Petitioner, a case has been registered by the Respondent Police under Sections 406, 420 IPC in Crime No.555 of 2012 against V.Pandian/Accused. It is not in dispute that the Police investigation is pending.
20. It is the emphatic submission of the Learned Counsel for the Petitioner that the trial Court while passing orders in Crl.M.P.No.3628 of 2012 has answered the second limb of Section 457 (1) of the Criminal Procedure Code that the subject property 'key' has not been seized by the Police, etc., and not answered the first limb of Section 457 (1) of the Criminal Procedure Code that "whenever seizure of property by any Police Officer, is not referred to a Magistrate under the provisions of this Court and such property is not produced before a Criminal Court during an enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property". Therefore, the order passed by the trial Court in Crl.M.P.No.3628 of 2012 dated 8/10/2012 is not valid in the eye of law.
21. At this stage, this Court aptly extracts the ingredients of Section 457 of the Criminal Procedure Code which runs as follows:-
"S.457 (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 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."
22. Likewise, this Court also usefully refers to Section 102 (1) of the Criminal Procedure Code, which enjoins thus:-
"S.102 (1) Any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which may be 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.
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale."
23. It is to be noted that the proceedings of investigation are not within the realm of either enquiry or trial and as such, the Court is not competent to pass orders either under Section 451 of the Criminal Procedure Code or under Section 457 of the Criminal Procedure Code, during the investigation stage, as per decision STATE OF KARNATAKA Vs. K. KRISHNA GOWDA {2006 Crl.L.J - 259, wherein at special page 261.
24. In fact, the plea of the Petitioner is to redeem/recover the key from Pandian in respect of the shop 'Sun Medicals and Generals' and as such Crl.M.P.No.3628 of 2012 filed by the Petitioner before the trial Court can be ordered since there is no impediment in the eye of Law in this regard.
25. In this connection, this Court points out that the Magistrate under Section 451 of Cr.P.C., can pass an order only after physical or symbolical production of seized material before the Court and that too only after hearing of both parties. Also, as per Section 102 of Criminal Procedure Code, a Police officer has no authority or power to seize the property when it is neither suspected to be stolen or which may be found under the circumstances creating suspicion of commission of any offence unless discovery of property leads to suspicion of an offence having been committed. Unless the property so seized is not incriminating or if the property is not involved or incriminating any offence nor any offence is disclosed after the seizure of the property, it is not open to the Police officer to seize and keep the property to himself or when it is produced before the Magistrate, it shall be released at once in favour of the person from whom it is seized, as per decision S.SATHYANARAYANA Vs. STATE OF KARNATAKA {2003 CR.L.J 1983 (1988, 1989)}.
26. This Court worth recalls the decision THE SUPERINTENDENT OF CUSTOMS AND CENTRAL EXCISE, NAGERCOIL VS. R.SUNDAR (1993 Cri.L.J - 956), wherein it is held as follows:-
"If the Police Officer keeps in his custody the properties seized under Ss.5 and 102 ad does not report them to the Magistrate, S.457 is not attracted and the Police Officer will have an arbitrary power of disposal of such properties. Under S.523 (1) of the old Criminal P.C. of 1898, it was obligatory on the Police officer to report the seized property to the Magistrate. This requirement is omitted under present S.457 of the new Code."
27. It is to be noted that the term 'seizure' means seizure by Police on own accord as per decision M.V.RAMANKUTTY Vs. STATE (AIR 1970 KERALA 191). Also, the term 'such property' in Section 451 of Cr.P.C., means property seized. Other property cannot be dealt with as per decision of BHAGWATI AND VENKATARAMA AYYAR (AIR 1954 SC - 415). Further more, 'enquiry' starts only at the seizure of an article.
28. As a matter of fact, the Learned Magistrate can act under Section 457 of the Criminal Procedure Code only when the seizure of property is reported to him.
29. In short, Section 457 of the Criminal procedure Code speaks of procedure by Police upon seizure of property. Indeed, Section 452 of the Criminal Procedure Code deals with property regarding which an offence is committed. But Section 457 of Cr.P.C., deals with property where commission of offence is not necessary.
30. There is no quarrel in regard to the well settled principle of law that it is the duty of the Investigation Officer not to bolster up the prosecution case, but to bring out the rule unvarnished truth.
31. Be that as it may, as far as the present case is concerned, even though on behalf of the Petitioner, a strenuous endeavour has been made before this Court to show that a Police Officer has power to seize certain property, yet in the instant case, the investigation is pending and that the key of the shop has not been seized by Investigation Officer and also the same has not been handed over to the Court. When a property viz., 'key' in issue has not been seized by the Police nor recovered from the accused Pandiyan, nor produced before the Court, the trial Court cannot direct the Respondent/Police to redeem the key/recover/seize the key from the accused Pandian etc.
32. In the upshot of qualitative and quantitative discussions as stated supra and also based on the facts and circumstances of the present case which float on the surface, this Court opines that the Petitioner/Complainant in the complaint has stated that if he is provided with an opportunity to open his shop and to continue his business within the stipulated time, he will repay the loan amount received from Pandian and other creditors. Even though the Respondent Police has registered the case in Crime No.555 of 2012 on 17/9/2012, based on the complaint of the Revision Petitioner against Pandian, the money transaction between them appears to be a civil transaction and also on the side of the Petitioner, a plea of exorbitant interest being charged has been taken as per Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2007, as opined by this Court. Looking at from any angle, the relief prayed for by the Petitioner in Crl.M.P.No.3628 of 2012 on the file of the trial Court to the effect that 'Key' will have to be redeemed/recovered from Pandian etc., is not acceded to by this Court, in as much as the proceedings of the investigation are not within the purview of enquiry or the trial as per Criminal Procedure Code. Further, this Court does not find any impropriety or illegality in the order passed by the trial Court in Crl.M.P.No.3628 of 2012 dated 8/10/2012 and the order of dismissal passed by the trial Court in short, does not suffer from any material irregularity or patent illegality in the eye of Law and consequently, this Criminal Revision Petition fails.
33. In the result, the Criminal Revision Petition is dismissed. In view of the fact that the investigation is pending in Crime No.555 of 2012 on the file of the Respondent Police and also because of the fact that the money dispute between the Petitioner and Pandian is civil in nature, this Court grants liberty to the Petitioner/Complainant to bring a Civil Suit before the competent Civil Court and seek appropriate remedy if so advised, in accordance with law and in the manner known to law.
mvs.
To
1. The Judicial Magistrate No.I, Dindigul District
2. The Sub-Inspector of Police Dindigul Town West Police Station Dindigul District.