Punjab-Haryana High Court
Raj Narang vs State Of Punjab & Others on 17 July, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.M-1423 of 2010 (O&M) ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-1423 of 2010 (O&M)
Date of Decision: 17th July, 2012
Raj Narang
...Petitioner
Versus
State of Punjab & Others
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Karan Bhardwaj, Advocate, for the petitioner.
Ms.Harsimrat Rai, Deputy Advocate General, Punjab,
for respondent Nos.1 to 4.
Mr.Sandeep Suri, Advocate, for respondent No.5.
***
Naresh Kumar Sanghi, J.
Prayer in this petition filed under Section 482 Cr.P.C is for quashing of the proceedings initiated against the petitioner by respondent No.2 in terms of Section 94 of the Code of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") vide order dated 03.12.2009 (Annexure P-3) passed by the Sub-Divisional Magistrate, Ludhiana (East) and the consequential proceedings arising therefrom.
The brief facts of the case are that the petitioner purchased Indica car bearing Registration No.PB10-CA-0594, Chasis No.72841, Engine No.67823, from its registered owner Pawan Kumar, s/o Brij Lal, resident of Ludhiana (respondent No.7). An affidavit dated 16.11.2009 was executed by Pawan Kumar (respondent No.7) to support the sale of the above said vehicle in favour of Raj Narang-petitioner.
Criminal Misc. No.M-1423 of 2010 (O&M) ..2..
On 21.12.2009, respondent Nos.5 and 6 along with respondent No.4 (a Police Officer) came to the shop of Raj Narang- petitioner and asked him to show the chasis and engine number of the Indica car and directed him to hand over the key of the said vehicle. The petitioner told them that he had purchased the above said car from Pawan Kumar (respondent No.7) and as such, he refused to hand over the key of the car. Respondent No.4 told the petitioner that he had received orders from learned Sub Divisional Magistrate, Ludhiana (East) (respondent No.2) to recover the vehicle and produce the same before him (learned Sub Divisional Magistrate). The petitioner handed over the car to respondent Nos.4 to 6 in compliance of the order issued by the learned Sub Divisional Magistrate (respondent No.2). The said order for recovery of the car was issued in the format of Form 11 of the Second Schedule of the Criminal Procedure Code issued in pursuance of Section 94, Cr.P.C.
Learned counsel for the petitioner contends that the provision contained in Section 94, Cr.P.C specifically prescribes that:-
"94. Search of place suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub- Divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that only such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable-
(a) to enter, with such assistance as may be required, such place, Criminal Misc. No.M-1423 of 2010 (O&M) ..3..
(b) to search the same in the manner specified in the warrant,
(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies,
(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety,
(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. (2) The objectionable articles to which this section applies are-
(a) counterfeit coin;
(b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);
(c) counterfeit currency note; counterfeit stamps;
(d) forged documents;
(e) false seals ;
(f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);
(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f)".
He further contends that concededly, the petitioner was the owner of the Indica vehicle and there was not an iota of word that the said vehicle was a stolen property or an objectionable article, Criminal Misc. No.M-1423 of 2010 (O&M) ..4..
therefore, respondent No.2 i.e. Sub Divisional Magistrate, Ludhiana (East) had gone beyond his jurisdiction while passing the impugned order (Annexure P-3) and as such, the same is liable to be quashed. He further submits that it was mandatory for respondent No.2 to conduct an inquiry before passing the impugned order which was not adhered to and as such, the impugned order is bad in law. To buttress his arguments, learned counsel has placed reliance on M/s Dinesh Auto Finance vs. State of A.P. and another, 1988 Criminal Law Journal, 1876, wherein it was held as under:-
"It is seen from this Section that the Magistrate is authorised to issue a warrant only when he had reason to believe that any place is used for the deposit or sale of stolen property after conducting such enquiry as he thinks fit. The words "has reason to believe that any place is used for deposit or sale of stolen property" and "after such enquiry as he thinks fit" are of great significance. Under this Section, the Magistrate cannot pass an order as a matter of course. Two requirements are to be fulfilled. One is to make an enquiry in the manner he thinks fit and the second is on the basis of the enquiry, he must have reason to believe that the property is a stolen property i.e., prima facie he must be satisfied that the warrant sought for is in respect of a stolen property and that prima facie grounds exist for issue of the warrant. In the present case, there is no such finding. On the other hand, the learned Sessions Judge observed that the financier has exercised his right to take possession of the vehicle under the terms of the hire purchase agreement. But the learned Judge held that the vehicle cannot be seized without the consent of the complainant. This view is wholly erroneous. Section 94 Criminal Misc. No.M-1423 of 2010 (O&M) ..5..
of Cr.P.C has nothing to do with the rights of the parties. Under this Section, the only question to be considered is whether the property in respect of which a search warrant is sought to be is prima facie a stolen property or whether there are good grounds to believe that it is a stolen property. The learned Sessions Judge has not addressed himself to that question at all. The sine qua non for issuing the search warrant and production of the property is that the Magistrate must have reason to believe that the property is stolen property. Since there is no such finding, the order cannot be sustained."
Reliance has also been placed on Dr.Satya Narayan Chowdhuri vs. State of W.B and another, 1998 Criminal Law Journal 928, wherein it was held as under:-
"Section 94 of the Code of Criminal Procedure requires a Magistrate, before issuance of search warrant, to conduct an inquiry before he can have reasons to believe that the property in respect of which the search warrant is sought to be issued is a stolen property. Of course, the scope, nature and character of such inquiry has not been categorically defined in the Section. The word 'inquiry' is followed by the expression "as he thinks necessary". The impugned order does not at all suggest that an inquiry was at all launched by the learned Magistrate before he issued the order of search warrant in the instant case."
Further reliance has been placed on Revannappa and another vs. S.N.Ragunath, 1983 Criminal Law Journal 321, wherein it was held as under:-
"6. A perusal of the impugned order clearly shows that it is again not in confirmity with the mandatory provisions of law as laid down under S.94 (2) Cr.P.C. The learned Magistrate while considering the application has stated Criminal Misc. No.M-1423 of 2010 (O&M) ..6..
that he heard the Advocate for the complainant, perused the report of the C.P.I., but again directed the C.P.I. to seize and produce the articles in question before the court on the next date of hearing S.94 Cr.P.C., contemplates search of a place suspected to contain stolen property, forged documents etc. It empowers the District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, if upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place may by warrant authorise any police officer above the rank of a constable (a) to enter, with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any property, or article therein found which he reasonable suspects to be stolen property or objectionable article to which the section applies and (d) to convey such property or article before a Magistrate.... etc. A perusal of the impugned order does not disclose that he has reason to believe that any place is used for the deposit or sale of stolen property as contemplated in the said section. Apart from saying that he heard the learned counsel for he complainant and perused the report of the C.P.I., there is absolutely no indication whether in fact he has applied his mind to the relevant facts narrated in the application and whether it is a fit case wherein he could pass an order under S.94 Cr.P.C. This is much more so in view of the fact that if upon information and after such inquiry as he thinks necessary, has reason to believe that any place issued for the deposit or sale of stolen property or for the deposit, sale Criminal Misc. No.M-1423 of 2010 (O&M) ..7..
or production of any objectionable article is deposited in any place etc., he could issue the search warrant. Even at the cost of repetition it is to be stated here that the impugned order is absolutely silent with regard to this aspect of the matter and therefore what follows is that the impugned order suffers from vagueness and it is not at all a speaking order. Hence it cannot be sustained in law and therefore it is liable to be set aside.
On the other hand, learned counsel for the State has defended the impugned order and submitted that the learned Sub Divisional Magistrate was well within his jurisdiction to pass the same.
However, learned counsel representing respondent No.5 has also supported the submissions made by learned counsel for the State. In support of his contention, he has placed reliance on Suresh Kumar vs. State of Kerla, 2002(1) Criminal Court Cases 118 (Kerala) wherein the Hon'ble Kerala High Court held as under:-
" the petitioner herein moved an application before the Magistrate to issue a search warrant under S.94 of the Cr.P.C. to search the residential premises of one Mr. Thomas, Ottakkandathil House alleging that he is in illegal possession of the vehicle bearing NO.KL-6-9759. The lower court dismissed the petition on the assumption that the vehicle is still in possession of the hirer. According to the learned counsel for the petitioner, the court below went wrong in finding that the vehicle involved in the case is in the possession of the hirer. Admittedly, the vehicle is covered by a hire purchase agreements. As per the agreement, the hirer is not competent to alienate or part with the possession of the vehicle without the consent of the petitioner. In this case, Criminal Misc. No.M-1423 of 2010 (O&M) ..8..
the specific allegations is that without the knowledge or consent of the petitioner, the hirer has transferred the vehicle to the said Thomas. If that be so, I see no illegality in issuing a search warrant under S.94 of the Cr.P.C".
I have heard learned counsel for the parties and gone through the material available on record.
In para No.15 of the application presented before respondent No.2, respondent No.5 had mentioned as under:-
"that now the petitioner has come to know, that the respondent has transferred the possession of the vehicle to some other person within the territorial jurisdiction of M.Town and the respondent is threatening to dispose of the vehicle in gross violation of the terms and conditions of the agreement without getting the hypothecation removed. Even otherwise, as the respondent has failed to make the outstanding payment of the loan amount, as such, the possession of the vehicle as per the terms and conditions of the agreement is illegal. The respondent is neither competent to alienate the vehicle nor is competent to part with the possession without the consent of the petitioner."
In the said application moved by the ICICI bank, i.e respondent No.5, it was nowhere mentioned that the Indica car was a stolen property or that it was falling within the ambit of sub-section (2) of Section 94 of the Cr.P.C being counterfeit coin, piece of metal made in contravention of Metal Tokens Act, or brought it into India in contravention of any notification for the time being in force under Section 11 of the Customs Act, counterfeit currency notes, counterfeit stamps, forged documents, false seals, obscene objects Criminal Misc. No.M-1423 of 2010 (O&M) ..9..
referred to in Section 292 of the IPC, instruments or materials used for the production of any of the articles mentioned above.
Admittedly, the petitioner is the owner of the vehicle in question. Under Section 94 of the Cr.P.C, the only question to be considered is whether the property in respect of which the search warrant is sought to be issued is prima facie a stolen property or whether there are good grounds to believe that it is a stolen property. Learned Sub Divisional Magistrate, i.e respondent No.2, has not considered this aspect at all. The sine qua non for issuing the search warrant and production of the property under Section 94, Cr.P.C is that the issuing authority must have a reason to believe that the property is stolen property. Since there is no such finding, therefore, the impugned order is not sustainable in the eyes of law.
The law laid down by a Division Bench of Hon'ble Andhra Pradesh High Court in M/s Dinesh Auto Finance's case (supra); Hon'ble Calcutta High Court in Dr.Satya Narayan Chowdhuri's case (supra), and Hon'ble Karnataka High Court in Revanappa's case (supra) are fully applicable to the facts and circumstances of the present case.
In result, for the reasons stated above, this petition is allowed and the impugned order (Annexure P-3) and the warrant of search dated 03.12.2009 issued in the shape of Form 11 appended to the Second Schedule of the Cr.P.C are hereby quashed.
17th July, 2012 (Naresh Kumar Sanghi) seema Judge